Wiley v. Memphis Police Transcript of the Evidence Volume II

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Ullll'EtJ rJTATEi: DXSTRIC-V COURT 
Vi'EET'CRH DISTRICT OF TEmJESSKIi 

V/DSTEJ^I DIVISION

MARTHA WILE'/, Mother and 
hoxt of Kin of FRED LEE 
liEKRY, a Decoeaed Mi nor r

Plaintiff,
versus
MEMPHIS POLICE DEPARTMENT, 
ET AL.,

Defendants.

VOLUME II

CIVIL ACTION i:0 
C-73-a.

TRANSCRIPT OF THE EVIDEUCE 
APRIL 3, 1975 
MEMPHIS, TENHESSEE



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1 I-K-D-E-X

WITNE

J. V/. Hubbard 
Henry E . Lux 
John A, Coletta 
Charles T. Kenny 
Henry E . Lux

DIRECT
EXAMINATION

CROSS-
EXAMINATION

135, 180 140
184 —

245 —

2C6 2 87
321, 348 344



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130

(Whereupon, pursuant to the overnight 
recess, Court convened at 9:17 a.m., and the 
following proceedings were had.)
THE COURT; Gentlemen, are we ready to prccee4? 
MR. CALDWELL: V7e are ready. Your Honor.
THE COURT: All right, you may proceed v;ith

your further proof,
MR. CALDWELL: When we adjourned for the day

yesterday. Your Honor, I was calling the Court's 
attention to certain portions of Director Hubbard's 
deposition, and there are two other items that I 
would like to direct the Court's attention to in 
that regard.

At pages twenty-eight and twenty-nine of the 
deposition. Your Honor, the follov/ing question and

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answer appear, and the answer is continued on page! 
twenty-nine.

(Reading):
"Do you think then that the more restric­

tive policies that are in effect in other '
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Icities cause those cities to do a less capable

job than your police department does here in 
that respect?

"Answer: There is no way for you to
quantify who is doing the best and who is

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doing the worst, because if there is any tain. ;

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that is characteristic of police statistics | 
and criminal statistics is that the guy that 
is doing well today maybe, rigiit on his ear 
tomorrow, so to try and correlate those \/cuid 
be, in vay opinion, an exercise in futiliuy.''
And at pages thirty-one to thirty-tv/o:

"Question: Why did you adopt a policy o^
self-defense or defense of others of deadly 
force on" --

"V/hy did you not adopt a policy of self- 
defense or defense of others of deadly force 
on the part of an officer?

"Answer: Because you would thereby offe.t
the full option of escape, too, and I feel j

Ithat would give unwarranted advantage to serious
I-- to the commission of serious crimes. |
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"Question: Serious being the ones that I
you have elaborated? :

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"Answer: Serious --  ̂ I

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"Question: (Continuing) -- in the deadly
force policy? 1)

"Answer: That's right, the ones primarily
!

where you have a victim. |
"Question; Did the deadly force policy ‘

131 j



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132

include burglary, could include burglary, I 
believe it does include burglary of a busin&s^ 
That doesn't seer, to fall in that category to 
ine?

"Answer: It certainly docs.
"Question: Would you elaborate on tnat?
"/vnswer: Sure, be glad to. You arrive

at a burglary scene, you know that a burglary 
has occurred or it has been reported, or it 
is suspected, v/hatever, and the police arrive 
at the Scene, you see someone fleeing the 
scene, you ask them to stop and they don't 
comisly .

"Now, right here, if for that instance 
we could freeze everyone, have that, just 
stay right where we are, we are not going to 
touch you, we are not going to do anything, 
just freeze while we go in and inspect the 
premises, and once v/e are sure there is no 
victim, that your only crime has been against 
property, then we will say, okay, continue 
running and v/e will try to get you some other 
way, but you can't get that freeze to take 
place, you have no idea what is in that scene 
Nov/, if v/e had a situation v/here you



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133

apprciiended them inside the premises, you had 
them basically in custody, and you satisfied 
yourself that it was only against property 
and not against any person, and then in the 
process of their trying to, they caught an 
unguarded moment and took off, I would say 
that the use of deadly force might be ques­
tionable there for a burglar, but you have 
first ascertained to your ov;n satisfaction 
that this is all that it was, nothing more,"
I think that is all, Your Honor, that we 

v/ould like to emphasize at this time in that depo­
sition

THE COURT: All right, sir.
MR. CALD'iv’ELL: would like to call as our

next witness, Your Honor -- (interrupted)
MR. SHEA: Excuse me. Director Hubbard is

here. May I speak to him for just a second. Your 
Honor?

THE COURT: Yes, sir.
MR. SHEA: Subject to the approval of the

Court, Mr. Caldwell said v/e could put Director 
Hubbard on out of order since he has other commit­
ments on for the day.

I might speak to him at this time for one



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THE COURT; All riyht, sir.
HR. CALD'WELL : '.Ve would have no objection to

that, sir.

r a o n e n t .



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the said v/itnssr, , having been first duly sworn,
testified as follov/s:
DIRECT EX?iMIIIATIO:i 
BY MR. SUIZA:

W. HUBBARD/

Q Please state your name to the Court.
A Yes, sir. J . V7. Hubbard.

Q Mr. Hubbard, Director Hubbard, you are the directoa
for the Memphis Police Department, i-Iemphis Police 
Department?
A Yes, sir.
Q 'Would you just tell us how old you are, where you 
live, and v/hat your background is?

A My age is fifty-tv;o. I live in Lowry, in the 
city of Memphis, and I have been police director for 
just a little over tv;o years.
Q All right, sir.

VJhat is your prior training?
A Thir ty'* tv/o and one-half years in the Marine Corps
U And you're retired from the Marine Corps at the
present time?
A Yes, sir, that is correct.
Q Iv’hat was the rank you held?
A Brigadier general.
C! All right, sir.



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1 And you liave been director of the Meiaphis Police
2 Department since, for tvo years, you say?
3 A One December, *72.
4 0 All right, sir.
5 Mr. Hubbard, do you recall having given a depositic|)n
6 in this matter pertaining to the use of deadly force?
7 A Yes, sir, Ido.
8 Q In your ov/n words, just tell us what the present
9 policy of the department is on the use of deadly force?
10 A \7ell, it is a -- (interrupted)
11 MR. CALDWELL: Your Honor, just for the record
12 Mr. Shea, during the course of the deposition, wheh
13 we v-;ere inquiring into the present policy only, a
14 continuing objection to the relevancy of the preseijit,
15 and which, as I understand, and I think the proof
16 will show, v/as adopted on the second month of 1974
17 in February, the director, as his deposition will
18 reveal, v/as director and had no connection witn thd
19 Memphis Police Department at the time that the |1i20 policy in question, which resulted in the particular
21 death by probative cause to -- the lav;suit had
22 occurred.
23 MR* SHE7i: Do I understand it you are, that !i i
24 you are sustaining my objection at this time? j
25 MR. CALDWELL: No, I'm objecting to the |



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relevancy of the present policy. Your Honor, unles^, 
except, unless it can be related to, to, GO:tiehow 
to the present policy. I do agree that it is rele­
vant. I just don't want it to be the present 
policy has anything to do with this instance, the 
present policy would authorize the deadly use of, 
use of deadly force, the basis for that, as that 
objection, I would not object.

THE COURT: Vlell, as I understand your objec­
tion, Mr. Caldv/ell, you are calling to the Court's 
attention that the present policy may not have 
been the policy tliat v;as in force at the time, and 
the primary concern of the Court in this case is 
what the ijclicy was at the tine of the death of 
Fred Lee Berry, and you are simply calling to the 
Court's attention after both of you made your 
respective objections, after the course of the 
deposition, and at the course of this testi;aony, 
the present policy may or may not be the same 
policy that pertains to the situation that existed 
on that particular night.

I ’ll note that you are calling that to the 
Court's attention to any, either of you, take the ! 
position that the evidence pertaining to the present

I
policy should be inquired into, v/hen the Court has



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no v/ay of knowing, bo,sed on tha proof and evidence 
that the Court has had the opportunity to go into 
at this tirae, v/hether the present policy, or whether 
any policy under Director Hubbard v/as or v;as not 
the same as it was at the time in question.

MR. CALD'.JELL: I3o, I don't think it takes the
position that it is not appropriate to go into, thtj; 
policy is quite different.

THE COURT; All right, you may proceed.
BY MR. SHEA:
Q All right, go ahead and --
A It would be very difficult for me to recite verbat;. 
the policy. It is several pages. I can summarise it 
and I can tell you what significant, substantive change 
it contains with respect to the policy that it replaced 
if that --
Q All right, sir, go ahead.
A Well, the basic guideline, lines, is common to law 
enforcement throughout the country, I believe, that 
deadly force is justified V'/hen the life of any innocent 
person is threatened, including that of the officer who 
may be trying to make an apprehension.

Anyone who is in the vicinity, who is threatened, 
and it appears that force is, is the, is, will be 
required, to relieve the threat to other people.



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.39

We also nave the fleeing felon provision, and the 
niain difference betv/cen the order which we puolisned, 
over my signature, in February, I believe, of, of '74, 
which replaced an order or superseded an order over 
Chief Price's signature, which v;as issued in January of 
*72, the only real difference is that grand larceny was 
removed from one of the felony categories as just being 
one of the types of felonies, that in pursuit of the 
perpetrator you might be justified in firing at thera.

The rest of it v/as simply an atterapt to clean up 
the guidelines and make them a little bit more under­
standable, because it is, it places, it places a great 
deal of responsibility on the individual officer that, 
to remember exactly everything that is in that order, 
and he had very little time to reflect when he is con­
fronted v;ith a, the situation. So v/e are trying to 
clean the order and v;e arc trying to clean up further.
Q What is the end result, end result, what is the, 
what is the end result, what is the expectation of the 
end result of the lethal force?
A You mean when you fire?

Q V7 e11, yes.
A V7ell, death to the subject has to be considered a 
logical outcome, because, just the physical problem of 
aiming a weapon at, usually a moving target, you have



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fatal injury is very hiijb .
MR. SHEA: Thank you.
You may ask.

CROSS-EXAMINATION 
3Y MR. CALD'.-JEEL.

Q Director Hubbard, let me shovv you a document 
marked Exhibit 17 and ask you if that is the February 
1974 policy to which you are referring?
A Yes, sir, it is.
Q And the prior policy v;hich that one immediately 
superseded.

Let me ask you if a document marked Exhibit 16, 
and dated January 20, 1972, reflects that policy?
A (Nods head in the affirmative.)

Yes, sir, those appear to be verbatim copies.
MR. SHEA: If Your Honor please, I would like

to have then read. I think it would be easier for 
all of us to keep up with if we know what they say 
rather than referring to Exhibit 17 or 18, some­
thing like that.

THE COURT: Are you saying that -- (interrupt«^d)
MR. CALDWELL; Mr. Shea, I will be -- do you 

want me to defer?
THE COURT; Are you saying that you just want

to 9 0 for the center of the mass, and the likelihood of



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Q

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MR. SHEA: ’.Veil, no. What we are saving,
talking about, as Exhibit 17 or 18, if Your Honor 
please, the policy is short, it is only two or 
three pages long, and I would like to have it read. 
Your Honor, so all of us who are listening here 
would knov/ v;hat that policy is he is referring to 
rather than have hira refer to Exhibit 17 or 18, 
rather than the number, referring to the number.

MR. CALDWELL: Your Honor, I have no objectior
at all to his request, if it is the procedure of 
the Court.

MR. SHEA: Your Honor, v;ell. Your Honor, on
direct, redirect examination, I will ask him to 
read.

THE COURT: You may proceed, Mr. Caldwell. |
MR. CALDWELL: All right, thank you. Your

Honor.
Excuse me.

the title of the docui.ventG referred to?

Nov7 ,  Director Hubbard, you mentioned in your mind 
the major distinction between your policy of February j

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I5, 1974, which is Exhibit 17, and the January 20, 1972 i
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policy wliich is Exhibit 16, was that you eliminated tiie ; 
crime of grand larceny from the fleeing felon portion 
of the firearms regulation?



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Q Mow, in neither of these policies, am I correct, ii 
auto theft a crime for which you can use deadly force 
under the fleeing felon, under the fleeing felony cate­
gory?
A Yes, sir, auto theft is not directly defined.
Q Did you understand that prior to Chief Price's 
policy of January 20, 1972, auto theft was a felony
category for which deadly force could be used to effect 
an arrest?
A I don't know. I did not, did not reviev; the polic 
that preceded Chief Price's policy because that was, tnc 
one that I inherited, and any intention was to the 
future.
Q If v/e can just briefly understand the policy, any j

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time an officer perceives his life or the life of anotheriIcitizen to be in jeopardy, deadly force is authorized | 
in that situation. Is that -- Maybe, if you want to 
read the language from the policy, it is fine?
A Yes, sir. That is correct. You have to eliminate}

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other means of solving the threat, resolving the threat)
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but that certainly generates the likelihood it v/ould be 
w e ’d consider it to be justified, 
y All right, sir.

If, if he wouldn’t, couldn't -- (pause)

A (Mods head in the affirmative.)



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Q (Continuing) the threat to human life by some
other means, then there is deadly force?
A By some other means, someone has to act.
Q All right.

Beyond that, the policy, the policy goes on to
authorize the use of deadly force to sole xjurpose of 
arrest, if it is necessary to malie an arrest in certain 
delineated categories of so-called felonies?
A .ve are talking about the current directive?
Q The current and previous directives.

That authority to use the deadly force for the sole 
purpose of making an arrest, not to eliminate the threat 
to human life, but solely to arrest a fleeing person, 
both the fjrevious and x:?resent policies do authorize 
that use of force?
A Well, you have the provisions to axoprehend, the
arrest side of it, and the other is to prevent a felony 1-  i

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from occurring. You find no -- the prinicple threat | 
against another's life, so it is preventative as well 
as, as, as an arrest x^^^^^^^dure.
Q Okay.

But, are you permitted, for example, to use deadly 
force to prevent a burglary, a burglary which does not 
involve a threat to iiunan life?

A E l i m i n o ' c e .



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A I, you ’ t know v;hi-t i:ind oi' threat, a burglary 
involving iiuinan life, you don't ];now the results.

Of course, if you sec soneone in tho process of 
entering, I'd say that it would bo. oj^en to a great deal 
of, of question whetner or not deadly force to prevent 
thein from entering would be justified, v.’ould just have 
to depend upon the situation, and, of course, the 
burglary, burglar departing, our view is that you have 
no idea v;hat exists within that burglary scene, whether 
there are victims, human victims, or whether just a 
simple theft of property, or property taken.
Q Okay,

What is the Memphis police officer authorized to 
do in that situation where he doesn't know what happeneci 
on the inside of a building?
A ile is, and you are talking about a burglar leaving 
a scene?
Q Yes.
A A burglar leaving the scene, unless the individual
I mean, first of all, there has to be clear probable 
cau.se to suspect that that individual has been in that, 
in tho.se premises, v/ithout permission; that is number 
one.

And there ai*e vax'ious circumstances tell you wlietiicjr 
or not that is li3:ely, but assuming that you have



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probable cause to suspect that a burglary nas been coai- 
laitted by this individual vnhora you have in visual sight, 
and they don't -- and they refuse to stop on your oruer, 
our officers are authorized to shoot, and the reason is 
because we have no idea of v;nat v/e'll find v/iicn we entei 
that house, and the presumption is sufficiently high 
that there may be a personal victim that we simply have 
perhaps the entry, the illegal entry, means by force, 
for a criminal assault, v/hich is a fairly frequent 
occurence, so we don't khov/ v/hat kind of burglary or 
illegal entry v/as raade, and, and for what, what purpose,

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the officer has no way, if, you knov/, if we could just 
say freeze, we'll go inspect the premises, and talk 
about the property, and the person, and then perhaps 
that would be an ideal burglary.

Whoever is fleeing, you knov/, will not conform to ; 
that, that kind of a concept, so there, our officers 
have no choice but to shoot.
Ci Let me understand, they're authorized to shoot on

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the assumption of what might have gone on, and v;hat is iIpure conjecture at that point, on your, just pure specu-t 
lation, or no knowledge of, they iiave no knov/ledge of
what is, has gone on inside of the building, they are j

I(authorized to take a human life on that basis? I
A Well, I think law enforceiaent is confronted with



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enough illegal entries on other people’s preiaises, and 
enough assaults on other people’s persons, that in orde^ 
to defend a coiainunity, there is every reason in the 
v/orld to suppose that something that, that something 
improper has happened in conjunction v^ith breaking and 
entering into someone’s home. So I don’t think that is 
such an unacceptable form of conjecture.
Q All right, sir.

It may not be.
A Since I provide the guidance of the department, I ' if 
not being regiment, but I think it is a reasonable pre­
sumption .

All right, sir.
But it would, could just as likely not occur in 

half the cases, it could just as likely be in half the 
cases, if what you are telling us, you haven’t conducted 
any statistical analysis to find out how many burglaries 
are, are, actually involve more serious crimes against 
persons ?
A u'ell, first of all, you cannot distinguish, as 1 
have already mentioned, v/hether the intent was to commit 
an assault upon property or person. There is nothing, 
really, that distinguishes that for you, and in some 
cases j.t is the mixture of the two.
C<! Well, but the crime, itself, excuse me, the crime,



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itself that you are talkincj about, that you have probab 
cause to believe that was cor.;irtitted is an crime a<jttxnst 
property?
A You don't know that.

Q No .
A That is your problem,
Q No, I'm talking about v;hat you have of probable 
cause to believe?
A Um-hura.
Q You couldn't get a search warrant, for example, on 
the basis of information as speculative, as conjectual 
as you are talking about, you might could get a search, 
warrant based on the probable cause that, that caused 
that, that he did commit a burglary, but you couldn't j

iget a search warrant based on that kind of information?}
(
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tA Well, police officers -- pardon me -- police offi- | 

cers responding to calls for service, or something that 
they have observed, and has, have reason to believe that 
a crime is in process, obviously operate on the process;

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on, operate on the probable cause, that distinction, and 
that is the only thing they have at the time to operate 
on .
Q so, all right, sir.

That is what I'm driving at.
>7e do operate on that, we are operating on it, if ii



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v/e are getting a searcn v;arrant, v/hat you are tellin.j mo 
is that we are tal;ing a human life for service, with 
service revolvers, or shotguns, you don't nave to have 
probable cause to believe that he has committed a crime 
against persons, that the suspect has, all you nave to 
knov; is, to have probable cause, to know that he com­
mitted a property crime and authorizes you to take a 
human life based on absent knowledge of what else has 
gone on; is that a fair statement?

THE COURT; Let me interrupt at this point 
and ask tJiis question.

Of course. Director Hubbard is responsible 
for his ov;n policy -- is a, allegedly a class action 
case, asking that the Court, based on what may have 
happened in the case of Fred Lee Berry, is the 
basis for declaratory judgment, and that the Court 
undertake to direct a policy of the police at this 
time? V^hat I'm asking about is, is v/hat the presen 
philosophy of Director Hubbard may be at this time 
v^ith regard to this thing, what relevance, and I'm 
addressing this to both of you, is it to the Court, 
is it to the policy, at the time in question, in 
light of the defendants in this particular lav/suit?

MR. SHEA: Your Honor, I don't feel -- (inter­
rupted)



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Tin: COUr?T: it is all, it is extreraely
interesting, and it is an extrenely difficult prob­
lem for society to deal with, but v?hat is it that 
is relevant and material about Director ilubbard's 
philosophy v/ith regard to his present policy in 
relation to 1972?

MR. SHEA: Your Honor, I raised the objection
during the course of the taking of the deposition.
I don’t feel that it is relevant. However, since 
his deposition has been introduced in this matter, 
has it not?

I

MR. CALDWELL; Yes, sir.
THE COURT: Mr. Shea, the fact that I have

introduced depositions in this cause, v/hich, at the 
time they were introduced, the Court has not read, 
doesn't wean that all of that is automatically 
admissible into evidence. If it is not relevant, 
if it is not material, if there have been objec­
tions made in the course of the depositions which 
are to be ruled upon, obviously, that material in 
a deposition, this case, or any case, this doesn't 
mean that is material, that the Court and/or the 
jury in an appropriate situation take into account 
the fact that all of these depositions have been 
admitted into evidence, does not mean that all of



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the testincny therein is necessarily relevant and 
material now.

Now, I am, I'm hearing live testimony, and 
I'm asking what is the relevancy and materiality 
if the director, if Director Hubbard had been 
succeeded yesterday by another director, and he 
were on the stand, and you v?ere asking him what 
about his policy, and why, what is the relevancy 
and materiality of this?

i'lR. CALDWELL: This is the problem I have, I
was trying to articulate earlier, and not very wel? 
I'm sure, throughout all relevant periods of time 
in this case, of course, the policy has allowed 
iMeraphis police officers to use deadly force against, 
fleeing burglars, fleeing burglars, first, second,; 
and third degree, and I think Director Hubbard's 
justification for the perpetuation of that policy 
is, it shov/3, it demonstrates the official justifi­
cation for the policy, not because he v;as , he was

jeven around in 1972, but because it is, it has been 
a continuing policy, and I think a present articu­
lation of the rationale behind the policy is rele­
vant in terms of evaluating that policy under the 
Constitution of the United States.

Now, if, I also think it is relevant because



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there is no, tiiere is no ascertainable difference 
betv/een what I perceive to be Director iiubbard’s 
justification and those responsible for previous 
policies.

THE COURT; Well, if it is a justification of 
anyone after the fact, as to v;hy such policy should 
or should not be taken into effect, in face of the 
fact that there were some tv^elve paople sued, and 
every command position in this la\/suit, all of v?ho:v 
are available and presumably have been available 
for your questioning v/ith regard to the policy that 
v;as in effect then, the Court is going to rule that, 
as interesting as it is, it may be that it, at this 
time, v;e are not going to pursue what the director' 
philosophy as to why he, his present policy v;ith 
regard to the use of deadly force may be in effect 
from 1974, and presently, we don't think that it 
has any direct bearing.

If there v;ere not the chief of police, the 
acting chief of police, the mayor, or any others 
that are parties in this lawsuit that, who were, 
or who had, v/ho had responsibility or might have 
had responsibility for that policy in, at the time 
in question, that would be another matter, but 
carrying the argument on further, any person who



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happens to agree or disagree v/ith that policy, and 
the reason for that policy, would be pertinent lor 
us to hear froai.

riR. CALD'.JELL: vlell, I think they would, if 
Mr. Shea could coir.e up with someone qualified to 
speak to it.

I ’m cross-examining him on the basis of his 
direct testimony, which Mr. Shea presented, which 
I assume was not to defend, I mean it v/as to defenc 
the policy that v/as in existence in January, 1972, 
as well as the present policy.

THE COURT: Well, in any event, whether or not.
offered by Mr. Shea, or v/hether offered by you in 
the form of discovery deposition, or by Mr. Shea, 
by v;ay of the testimony of the witness, the Court 
is now ruling, and you gentlemen both may take 
whatever exceptions you v/ant, that it is not rele­
vant and material to this proceeding to hear from 
the director. Director Hubbard, about the basis 
for his present policy.

MR. SHEA: I have no objection to that. Your
Honor.

MR. CALDWELL; Well, may we have it, the 
entire testimony, stricken?

THE COURT; The Court will simply consider



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only those matters of testimony that relate to as 
to v/hether or not there is a continuing policy 
that is similar or dissimilar to the policy that w4s 
in force at the time in question, and the reason 
for, or not for. Although, we have the, we have 
something of the problem of the slip and fall situa­
tion a store has, somebody falls, is it relevant 
or material to bring in proof and evidence that 
after the fall that they made a change in their 
situation against the -- as proof and evidence, 
against the defendant, that a dangerous condition

I

existed.
The law, as I understand it, says it is not, 

to encourage the making of a change or adoption of 
a policy that v;ould not be held against the person.! 
But without ruling on any of these other natters,
I am simply ruling now that the Court is not, does 
not feel that it is relevant and material to hear 
further with regard to the reasons for, justifica­
tions for a policy that the, that has been demon­
strated to the Court, that has been in effect since 
February of 1974, some, over two years after the 
death in question.

MR. CALDWELL: Could I have just one moment?
THE COURT: Yes, sir.



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MR. CALD(7LLL: Your Honor, one of our claiiiis
is that the policy in effect in 1972, early
January, prior to the January 20 i^olicy, runs
afoul of the Fourteenth Amendment, because it
lacked specific guidelines, and was just a general
statement authorizing rather unfettered use of
deadly force, and it would seem not to get into
the substance underlying the policy, but if v?e can,
could go into some of the things that Director
Hubbard has talked about, cleaning up the policy,
and making it clear, and that sort of thing, and»
eliminating certain categories of crimes from the 
policy as it existed in prior years, I wonder.
Your Honor -- (interrupted)

THE COURT; All right, you may go into any 
change of policy, and the Court, by allowing you j

ito do that, is not indicating that this is a rele-| 
vant and material matter to this. I'll permit it 
as it may be relevant and material, but I'm not 
ruling because I'm permitting you to go into that 
question that it necessarily is.

But as I understand it, you are directing 
your questions now as to the change or definition
of policy, but we are not going into rationale and|j
philosophy, and all of the other? |



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15:

HR. CALD\/::;lL; Yc s , sir,

Q Director Hubbard, during the course of your depo- 
oition you talked about the need for specific guide­
lines?
A (Hods head in the affirmative.)
Q API I correct that you agreed that specific detailec. 
guidelines are imperative in a v;ida variety of law 
enforcement activities, but also with regard to use of 
deadly force?
A Yes, sir.

The situations that confront a police officer, 
where he has only moments to decide what action to take 
are so complex that there is a continuing effort in all 
departments, that I'm aware of, to simplify, not neces­
sarily reduce the options to use deadly force, but to 
simplify the guidelines so that they are more easily 
read and more easily recalled, and we have a continuing 
effort to do that. Vie are looking at our policy now, 
not from the standpoint of making it more restrictive 
on the officer in the use of deadly force, but trying 
to make it more easy for him to make up his mind.

Q Between, between the January, 1972 policy and the 
present policy, you eliminated grand larceny, and v/hat, 
how was that, hov; did you pick out grand larceny as 
opposed to, say, armed and simple robbery, and



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v;h at-have-you?
A The policy revision vvas laryoly constructed by the 
then police legal advisor, Mr. Krelstein, and first of 
all, I had a grand total of, when, v/hen we began this 
review, I had literally no experience in law enforccinenij:, 
and the things that were, the guidelines that police 
officers needed, the laws that they had to observe in 
the v/ay of limitations , and things , and I v/as in the 
process of trying to educate myself. Mr. Krelstein was 
very helpful and v;e had many, many discussions about 
such things as this, and we both agreed, and I believe 
that the chief of police agreed that it might be time 
to try to clean the order up a little bit more. The 
question of removing grand larceny is one of those 
felonies that raight be eliminated as the type of thing 
v/here you would use deadly force, just seems to make a 
great deal of sense. V7e were strictly dealing with 
property, and we, we do value the human life, and v/e do 
prefer not to take it, if only property is involved, 
but at the same time, we did not, we don't want to 
remove, make it so, reduce the threat so much that it 
literally invites more felonies than we have already.
VJe have more than we can handle. So those kinds of 
guidelines are what v/e follow, and v/e paid a great deal 
of attention to language and structure of the order.



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that sort of thinj.
Grand larceny v/ns renoved One thing I neglected

to mention earlier, we formulieed a process that ;vas 
already in existence, v;as where the officers, of course, 
had to report to our firearms training center and explai 
in detail the professional technical part of his per­
formance, quite aside from any question of liaiility, 
criminal liability, anything that, or like that, just 
what iiappened, v;hat was the situation, how was it 
handled. We went further and formulized that into a 
firearms reviev; board, v;hich is used something like thal̂  

is used in many departments where we have a board of 
some pure judgraent and technicians, and they go back 
through the situation and critique it, operationally, 
and we incorjjorated that into the provisions as another 
effort to analyze our own performance in situations 
where the police officer felt that he had.
Q Now, just so I make sure that I understand the 
extent of your direct testimony, under Mr. Shea's exami-- 
nation, you have not developed, since you have been, 
well, first of all, your law enforcement experience has 
primarily been in, acquired in determining of the law 
enforcement problems since becoming director of Memphis 
Police Department?
A Well, I have seen law enforcement in other countries



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1 that are far more regiment than ours in foreign cempote 
situations and fairness, peacetime situations.
Q As far as your experience with domestic lav/ enforce 
nent, that has been since you became director?
A Yes. That has been my source of information.
Q You have not developed any information, this was 
true at your deposition, and that was not that long aco< 
I assume that it is still true, that demonstrates a 
correlation betv/een the use of deadly force and a reduc­
tion, or deterent V'/ith regard to the crime rate?
A I expressed ray view on that.
Q You did express ycur opinion that you thought it 
was a deterent, but you did not, you v̂’ere, at the, of 
the opinion, at your deposition, that it v/as not possi­
ble or at least there was not data presently available 
which could qualify that specific?
A There are data available to support that viev/.
Q Is that correct?
A Yes, sir.
Q And in Memphis?
A Now, there are, in the literature, you'll find
data that supports the notions that the threat of a 
very high penalty for certain types of crirae is a deter­
rent, that has to do with the question of the death 
penalties, watching certain rates, certain specific



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types of Cline before and after the death penalty was 
set aside by the Supreme Court action, but the, you kno;!’ 
(interrupted)
Q You think that important?
A There are data from people who, to take the oppo­
site view, that, that v;ould suggest th£it maybe there 
wasn't such a direct correlation. I hold to the view 
there is, that is a direct relation. I said in that, 
in my deposition.
Q As to the death penalty?
A Yes, sir. I think it is a positive deterrent, and 
I think the deadly force has to be considered to be a 
deterrent, because opportunity is -- most crimes, as v;e 
see them today, are crimes of opportunity. In other
words, if you think you can get away with it, you don't]

1you give it a shot, and that is just a tremendous azaount, 
amount of that. What v;e want to do is try to ma]:e it 
clear that you can't get av/ay with it, and, therefore, 
remove the temptation that is in every digested form, 
the essence of our theory about deterrent that, as we 
are reflecting it nov/, in the use of electric equipment, 
and various crimes, we want the risk to be very high, 
and we would like to see tougher court sentences, a 
higher bonding.

Q And so you find support for your opinion in that



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60

part of the research and opinion literature that indi­
cates the death penalty, for oxanplo, does have a great 
deal of effect?
A I find a great deal of support for it in this com­
munity, v;hom we serve.
Q I'm sorry. I'm not talking about public support,
I'm trying to pin it down, talk about importance, or 
less imperical points.
A I know I'm not that a profound a student, I have 
not gone through near the literature, for example, Mr. 
Lux, or people v;ho are in the professional development, I
law enforcement development field. My reading time is 
limited, but I have researched and listened to my ov/n 
satisfaction that in these times, and in this place, 
with the threat as it is, and the propensity for crime 
that very tough, tough measures are indicated, and I 
reserve a great, great deal of feeling of support for 
that viev7 from the community, whom I'm sworn to serve..

So I believe there is a correlation there.
THE COURT; Gentlem.en, we are going right back 

to exactly what the Court ruled on about ti:enty 
minutes ago.

MR. CALDWELL: Your Honor —  (interrupted)
THE COURT: V7e'll have this argued right now, |

Ifully, and whether it pertains to Inspector Hubbard!,



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161

or anybody else, I want to know v;hat the theory is! 
of the plaintiff that would make the testimony of iii
this witness with regard to policy of, adopted, with 
one whose testimony is that "I had no previous 
police experience, as such, prior to my coming on j 
and adopting a policy", what relevance that had to| 
a policy that v;as in force with relation to what 
occurred on the date and time that is involved
here?

I'm going to hear from you now, from you as 
to this, and you can make your record now, because!

I
the Court is aware this is a type of case with the^ 
with those involved, and the amount of experience j

i
that has been involved in proceeding in this case,! 
that it is likely, whatever the result might be, !Ithat there may be an appeal. It has been indicated 
to us this is a test case situation.

Nov/, you can make your record, but the Court j 
is prepared at this time to rule that it is absolutely 
irrelevant and immaterial, the testimony that we ! 
are hearing now. ijMR. CALDWELL: Your Honor, I apologize for th^
fact that, that the question, both the question and

i
the answer may have transgressed the prior ruling^;iI
but my question was directed to the simple question--



162

1 (interrux^ted)

1 2 THE COURT: You ir.ay state now what it is that
1

3 you seek to obtain, that is not in the deposition.

i \7ith regard to the examination in open court of
1

5 this v;itness that you didn't obtain in the dox^osi-

i ^
tion that has been filed.

i 7 MR. CALDVJELL: Well, I was a little concerned

ft on the direct examination, whether or not ito
9 adhered to the information in the deposition, in

; 10
1the dex^osition of Director Hubbard's. There was |!

11 no, there w'as nothing to qualify a correlation of

12 the deadly force f>olicy, and crime rate, and to

! 13 try to relate those in his opinion v/ould be exer­

14 cising futility, and I just want to make sure that

i 15 he was not, that he, that his direct examination |

; ^  16 !with Mr. Shea had not altered that position at all.

! 17 THE COURT: "Well, I don't recall that Mr. Shed1i1
I 18

tasked him anything about that.

1 MR. SHEA: (Nods head in the negative.)
li] 20 1 MR, CALD\1ELL: Well, he talked to him about --

21 (interrupted)

1 22 THE COURT: This is the very thing, Mr.
J
 ̂ ' 231 Caldwell, that the Court talked about yesterday.

2-4)J what is really being sought by the x’i'^intiff, and
\] 25 the method they are proceeding in proof and



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cross-fexoT.'.ination ir. about tnrse bites at the saiac 
v/itness.

HR. CALDWELL: Excuse n.c, Your Honor, I did
not put Director Hubbard on the v/itness stand.

'i'HE COURT: I understand that, but this cross-
exaraination you are going about again into the sarae 
area that I presumed v/as, v/ere, or have presented 
as part of your proof and evidence in a complete 
deposition.

MR. CALDVJELL: Your Honor, with all due
respect, there are two, two kinds of proof. You 
can have documentation, nonlive proof, and, as you 
will call it, and you can have live proof.

In making judgment about a document, document^, 
or depositions, that is one thing, and there is a 
certain rule governing that, should there be an 
appeal, and what-have-you, but in evaluating the 
credibility of a live v/itness, there is entirely 
different rules governing an attack on any parti­
cular finding a court might make, based on credi­
bility, determination, and that sort of thing, and 
the Court's evaluation of live witnesses, and I 
think even if it is true that I have examined 
Director Hubbard on certain matters in the deposi­
tion, if Hr. Shea puts him on the stand and asked



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16 4

hira querstions in support of the use of deadly 
force in a particular situation, that I'll have an 
absolute right to cross-examine fully and exten­
sively in connection with that live testimony, and 
that I cannot he limited by v;hat I might have askec 
him in the deposition.

TlljJ COURT: Even if the Court so rules it
irrelevant and immaterial?

MR. CALDWELL; No, sir.
THE COURT: That what Mr. Shea has presented

is irrelevant and imraaterial?
»

MR. CALDV/ELL: No, I -- (interrupted)
THE COURT: Now, I understand your position,

and that you are representing your client, and the 
Court is not going to get into an argument with 
you, Mr. Caldwcill, and you happen to disagree v/ith 
the Court's ruling, and I have said that you can
make v.’hatever statement for the record that, as to iI

Iwhat you intend to produce, and prove, through this;
I

v/itness, but the Court is not going to do it through,
II

and reread all of these thousands of pages of depo-i 
sitions that have been presented by the proof, by 
the plaintiffs, on the proof and evidence, and the 
testimony, and going over the same thing over and 
over.



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165

now, what I v;ant to hear from the parties, 
what the Court wants to hear, and w’̂hat the Court 
wants to consider, I want to hear fx-ora the parties 
as to, to what is the relevant and material matters 

Now, I'm directing my question to you, my 
request to you, and, but I'm not just directing 
this to you, but I \/ant to hear from Mr. Shea also, 
as to why either of you are going into all of this 
business, because you are asking soraebody v;ho came 
on the scene as director, long after this episode 
occurred, whether or not the policy is the same, 
and what is the relevancy of it, and I want to heai 
from you, and I v;ant you to make your record on 
that statement, because I intend to hold you to 
what we are seeking here.

I
I
IMR. CALDWELL: Well, excuse me. Your Honor. |
j

(Whereupon, Mr. Arnold and Mr. Caldv/eli |
i

have a short conference, same not reported in | 
this record.)
MR. CALDWELL; Your Honor, after consultation

i

with co-counsel, I don't think there is any further
!

questions that I v/ould like to propound to this II
vTitness, if Mr. Shea has no further questions. i

THE COURT; All right, I will be glad to hear i 
from you gentlemen at this time, as to v/hat you i



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1 contend, each of you, is relevant and riaterial to, 
with regard to this witness' tes tir.ony, whether in 
deposition or whether in open court, v;hat the mate: 
ality that has, as to the issues in this case.

MR. CALDUELL: Your Honor, I, I think there
are several things relevant.

This witness is a managing agent of two defen 
dants in this lawsuit, the city of Memphis, and 
the Memphis Police Department.

This w'itness is respoiisiblc for articulating 
policy and policy justification for these two 
defendants, be it present justification or past 
justification.

I think the present justification for a polic;|̂ ', 
which is not different in terms of the context of 
this lawsuit, and it v?as three years ago, is highl; 
relevant to v/ho, what those two defendants think 
supports the use of deadly force, under the circum­
stances of this case.

We think, we think, secondly, that the absence 
of any iraperical data to demonstrate that in Memphp-s , 
or generally, a deadly force policy actually has 
some sort of effect op the crime rate.

We, I mean v/o do not concede that even if it |idoes, it is justified, but without any imperical



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167

data to support that, we think that it is highly 
relevant to the constitutionality with, to the ques 
tion of policy, which authorizes the taking of 
human life.

THE COURT: What imperical data, as a matter
of interest to the Court, if you didn't have this 
policy, if you had no policy of firing alb a deadly 
felon (deadly weapon at a fleeing felon) , which is 
situation that does not exist, how can you compare 

figures that relate to a present policy and what is 
happening in a present policy, be compared to what 
it, to what might happen in another situation that 
doesn't exist? How would we know whether there 
would be eighteen times as many armed robberies , as 
many burglaries, and other things, as if this policy 
didn't come into existence?

As a matter of interest, in Memphis, Tennessee 
how do you have a worthwhile statistical comparable'
evidence to know this? j

i
MR. CALDWELL: I understand the question, and |

I would like to make two responses. j
One, our proof will shov/ there are other police 

departments, other law enforcement agencies v;ho do | 
not allow the use of deadly force,to effect the use
of deadly burqlaries (to effect the use of deadly |i

iforce on fleeing burglars), for example, so in a '



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168

general sense, such analogy could be, at least, 
theoretically, could be made to compare crime rate^ 
between cities who did not, and cities which do 
authorize deadly force,Your Honor, under all kinds 
of circumstances.

Of course, all kinds of variances would have 
to be dealt with, but, of course, that is the rea­
son that we have to deal ^/ith the emergency today.

Secondly, our position would be to authorize 
the taking of human life without any knowledge at 
all as to what the situation would be without the 
taking of human life, is pretty slim justification 
in itself, and the speculation that the crime rate 
might be eighteen times higher if we didn't shoot 
down fleeing burglars, I don't think can be a just 
fication in any sort of compelling sense, at least, 
and I doubt in any sort of rationale relationship 
sense, the justification of taking for such an 
audacious thing as taking of the human life.

So, those, at least, that is our theory with 
respect to Your Honor's question concerned.

THE COURT: All right.
Mr. Shea.
MR. SHEA: If Your Honor please, I objected

at the time the deposition v/as taken, and since



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,C9

that tiiue, and as Your Honor can see, from the
v/ealth, wealth of material here, that we have been
bombarded with requests for information, that I
didn’t think was relevant, but on the other hand,
I, in an abundance of precaution, I did not want
to over-simplify tnis matter, and, and go to what
I thought was the narrow issue as to whether or no-
Officer Richards on the night of January S, 1972,
used that authority that was granted to him by the
Tennessee Legislature, under TCA 40 dash 409, and
that was a narrow issue. I think all of these

»other things are extraneous. I don't think they 
have any bearing at all, but in an abundance of 
caution, I was not going to be left with my flank 
unguarded, if possible, and I admit that I think 
the testimony of Director Hubbard, as far as 1974 
policy is concerned, is irrelevant and immaterial, 
and, but I do feel that the statement made by 
Director Hubbard, that the ultimate result of a 
lethal firearm policy is that if you shot at some­
body you are going to perhaps kill him, and I thin 
that is the only answer that I would like to have 
the, to have the record retain, that if, when you 
shot at something that you are probably going to 
kill or liable to kill, and when you shoot at thera



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you arc shooting at them to stop.
Tin: COURT: All right.
Aro there any further statements that either 

counsel wish to make or any further question that 
either counsel v;ish to prcpovind to the witness for 
purposes of the record in light of the Court’s 
indicated ruling with regard to further testimony 
of this witness?

MR. CALDWELL; Your Honor, we would have no 
further questions of the witness.

' I would like to respond to one statement that 
Mr. Shea made, and that is, his view of this law­

suit.
It has been clear from the date the complaint 

was filed about the dread of this lawsuit, and we 
don’t think the discovery process which has been 
engaged in has surprised Mr. Shea, and it has all 
been, we think, tailored to try to support our 
theories with facts which were available from the 
defendants, from elsev;here, and I don't thank v/e 
have engaged in any sort of harassment, which I 
think Mr. Shea's argument iraplies.

THE COURT: Inspector Hubbard, why cannot and
should not an officer shooting at a fleeing felon, 
shoot to disable, rather than to kill?



171

j1 1 THE v^lTHESS: Well/ it ifi impractical, mainly.
1{11 2 He, the presumption is that you will have a moving
{t
i 3 target, and/or our officers simply have to be
i 4 trained so that if the use of a firearm is justi­

5 fied at all, then the full consequences have to be

i 6 accepted.
1

7 THE COURT; And that is the same whether it is

o 8 in preventing the threat of injury to the officer

«
9 or to someone else, or to fire at the fleeing

i1 10 felon, the policy, as far as you are concerned, is
i
1t 11 the sarae: ''shoot to kill"?
33 12 THE WITNESS: Yes, sir.
tiii1 13 THE COURT: And the reason being, otherwise

j 14 it would be impractical?
i

15 THE WITNESS: Yes, sir, and I would not sayo 16 that it is necessarily shoot to kill, but it is
\ 17 shoot to stop, and, and the likelihood of killing

j

18 someone in that process is very high. You simply
19 have to, sort of in an indirect way, it takes a
20 shot to kill people, just a shot to wound policy ii

*}
I 21 impractical.
f1 22 THE COURT: Is there any distinction in the

23 policy, as you understand it, between the burglary
24 in the entry of a home and burglarizing, and entry

1 25 of a commercial business?



17.

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TliE V?It:iE3S; Yes, sir. I see a distinction,
I do.

THE COURT; Is there any differentiation in 
the policy?

THE VJITNESS; Ko, except that we are looking 
for alternatives.

If I may give a recent example that might be, 
might emphasize the point:

We use, for the, for small businesses, we are 
being particularly faced with food and convenience 
stores, and that sort of thing. We are being 
really hit hard for holdups. They are targets of 
opportunity for peox^le v;ho just run all over the 
city all night. If they see one that looks like 
a, like a setup, they will go in and case it and 
pull it off, if they think they can. If they 
can't, they go on, find another or forget it that 
night.

We have had as much as a hundred on larceny, 
in some cases we have had a hundred on Friday 
nights, for example, still v/atches, and first of 
all, it is tiresome and most unhappy situation.
It presents waste of time. It is burdensome, 
looking at the walls of the inside of a store or 
place, most unpleasant to sit in the back of the



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173

store v^aiting with a shotgun and v/aiting for that 
store to be hit, and v/e have looked for alterna­
tives to take care of that, and we found, first of 
all, the outcQine is frequently where the holdup 
occurs, where you do have a hit, the holdup occurs 
the officer steps out with his shotgun to threaten 
the subject and hopefully to force him to stop.
The usual result is that the subject takes off and 
the officer pursues, and frequently has to fire. 
This was -- They have had to fire those -- or they 
have fired in those circumstances, and despite the 
tragedies that have occurred out of that kind of a 
posture to defend these stores, you simply cannot, 
under our guidelines, you have to conclude the 
officer was justified.

MR. CALDWULL: If Your Honor please, I raay
apologize for interrupting here, but I don’t think 
the witness has responded to Your Honor's question 
as I understood the Court's question.

THE COURT: V7ell, you may be correct, and I'm
I'll pass on to the next question. At this time,
I don't want to cut off the witness, if he is in 
the middle of what he wants to express, and in 
response to what has been as]ced.

THE WITNESS: Well, I'm hoping to try to make



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it clear that we are looking for alternatives to 
shooting. We nov/ use some electronics equipraent, 
which allows the officers to catch the subjects os 
they are coming out. We have not had to shoot one

V7e have had over tv;enty appre*
r

use firearms at all.
hensioas, and twenty hits, about thirty-four c 
thirty-five felons apprehended, without firing a

i *sho t .
In tv7o of these situations, tv;o women who 

were attendants at the store were also spared from 
criminal assault, which was in progress v;hen our 
officers arrived, is a, you knov7, just a better 
outcome any way you look at it, and we are looking 
to these kind of ways to prevent the use of deadly 
force, but v;e, at the same time, we do distinguish 
between commercial establishments, except that we 
have the experience of the women who attend some 
of these stores at night being assaulted, so --

THE COURT: Well, let me ask this. Is there
any requirement of belief that the fleeing felon 
be armed?

THE V7ITNESS: Yes, sir, there should be a
presumption that the felon is armed, unless -- I'm 
no, I'm sorry, I don't feel that is, I don't feel 
that is an absolute requireneut. It depends upon



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175

what you have probable cause to believe has happeir
THE CODRT: 'hliat kind of warning, if any is

required, under the policy before the shooting or 
firing?

THE V7ITMESS; The officer must identify him­
self, must give more than one warning and make 
every effort to got the attention of the subject 
and get them to stop.

THE COUFiT; All right, sir.
Anything further, any further questions, 

gentlemen, in light of what the Court has commente 
before?

MR. CALDWELL; Can I ask one or two questions 
Your Honor?

THE COURT: Yes, sir.
BY MR. CALDWELL:
Q v'Jith regard to the last answer that you gave the 
Judge, it is clear in the policy, both in this policy 
and the last policy, that the use of deadly force that 
v;e are talking about in the context of this question,

case, is, is to effect an arrest, has nothing to do, to 
do with whether or not the fleeing suspect is armed, if 
he is armed, and presents a threat to the officer's lif 
or another citizen's life, that presents a different 
policy; right?



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A That is correct.
Q The use of deadly v/eapen against an unarmed felon, 
which those are high, the deadly force is to be used 
against him, am I correct?
A The question of being ariaed is only resolved once 
you have the subject in custody, but the presumption 
arises from various conditions that the officer has to 
take into consideration.
Q But your answer to ny question was, "yes", that I
am correct, that is correct, that you, that the officer
does not have to presume that the fleeing suspect is

»armed, he is authorized to use deadly force to effect 
the arrest solely because a person might got away, not, 
he is not required to make any determination as to 
whether or not the suspect is armed?

A If you had had a vicious attack upon the -- (inter 
rupted)
Q Well, excuse me. Now, v;ill you answer my question 
I am willing to let you go through with the hypothetica 
answer, but, but will you answer my question and then 
explciin it anyv/ay you like, I would appreciate it. We 
are talking about the policy authorizes.
A The presuraption is that the individual is arraed, 
is not an absolute requirement, no, but it, you know,
I mean it is the judgment that precedes the officer’s



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177

action, is of iraportance with respect to whether or not 
he is dealing v;ith an arrr.ed or unarmed suspect.
Q Surely, but, but do you thinJc he should, there 
should be evidence to indicate that the suspect is armec 
A No, not necessarily; no, sir, I don't,

Q Before he uses his deadly force?
A No, not necessarily. As I began to mention a raomer 
ago, terrible crimes are being committed without being 
armed, and if one is a threat to the community, to peo­
ple, and the only way to bring them in, bring them down 
and stop them is by the use of deadly force, whether, 
whether armed or not armed, I would say shoot. Certain 
types of subjects, I don't feel that it is an absolutely 
requirement, and it is a consideration, and very imx^or— 
tant one, depending upon what kind of crirae you are 
dealing with.
Q Well, in the fleeing felon, let's say the fleeing 
felon, burglary situation, you don't believe there is 
such precept or evidence to give rise to such presump­
tion?
A I can only say from my limited experience that I 
presume that anyone who enters someone else's home 
illegally, going in there with some kind of protection 
for himself, some kind of v/eapon, and also in the busi­
nesses, business establishments, and I think wc find



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that nost of ovT.r burglars have, are armed with somethinf 
Q What percentage of them?
A We would have to research, v/hich v;e, I'll leave it 
to, to the city council.
Q You haven't done that, have you?
A No, we know that, know w g , I would, wouldn't try
to give a horseback guess on that, but we could certain! 
research and provide it for the record if counsel feels 
it is relevant.

MR. CALDv’/ELL: Two other particular areas, ancjl
I'll let Director Hubbard go.

Ci There are other law enforcement agencies, other 
urban police departments who do direct their officers 
to shoot to v/ound, is that not correct?
A I'm not av/are of any "shoot to wound" policy in any 
major city of the United States.
Q That doesn't mean there isn't any?
A That doesn't, but I'm not aware of it, of any, and
I have discussed it with a number of administrators 
around the country.
Q All right, sir.

In, if in the course of collecting information froif'i 
other departments about their particular firearms polic 
if the Memphis Police Departraent had gathered policy 
from other departments which did direct officers to



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179

shoot to wound in the fleeinc felon, fleeing felony 
cases,- categories, you are not aware of those, is tnat

correct?
A I am not personally aware of any. All or my dis­
cussions on the subject v/ith other administrators is 
that it is just impractical, if there were such a policy 
in other cities, I personally v;ould not adopt it.
Q Under the present policy, and I have one question, 
under the present policy, and previous policy, you do 
not direct officers to make any distinction between 
adult fleeing suspect and juvenile fleeing suspect.
There are, to your knov/ledge, are there not, policies of 
other police departments which do direct officers to 
treat persons who they have reason to believe may be 
j uven iles different v/ith respect to use of f i re arms th a,i 
they do adults; am I correct?
A Yes, sir, that is right. I arn aware of some dis­

tinction .
Q But your department does not make that distinction? 
A Not, not at the present time.
Q And it has not made it, to your knowledge?
A The distinction is pretty much a matter of what 
the officer sees in way of size of the subject.

MR. ,CALD\^ELL: Your Honor, I would like to
have Exhibits 1C and 17 admitted into evidence, tap



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two policies iclentifiou by Director Hubbard.
THE COURT; Mr. Shea?
MR. SHEA; I have no objection, Your Honor. 
THE COURT,; Let them be admitted, subject to 

determination of materiality and relevancy.
(Whereupon, the said instruments pre­

viously marked Exhibits Number 16 and 17 for 
identification, were received in evidence.)

MR. SHEA: Your Honor, I have a couple of
questions in liqht of what has been developed nere

THE COURT: 7ill right, sir.
REDIRECT EXAMINATION 
BY MR. SHEA;

Q Director Hubbard, you have indicated on the questi. 
of whether someone is armed or not, you say it is not 
necessary to have a weapon. I would like to

MR. SHEA: May I hand this to the witness.
Your Honor?

THE COURT: Yes, sir.
BY MR. SHEA:
Q This is Exhibit Number 37(e), and it is a picture 
that was taken the night of the incident, the night 
the incident took place, on January the 8th, 1972.

What does that, is there anything in there tliat 
can be used as a weap^on?

on



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I think the picture v/ill spea); for itself -- (inte 
rupted)

MR. CALDV7I;lL: Your Honor, well, the picture
v/ill speak to itself, to any degree, unless Genera.1 
General Hubbard can readily identify certain objects 
and that sort of thing.

THE COURT: I will sustain the objection.
HR. SHEA: All right, sir.
May I ask another question if I rephrase it?
THE COURT: Yes, sir.

BY MR. SHEA:
Q Is there anything in there that can be used as a 
club ?

MR. CALDWELL; Your Honor, General Hubbard 
was not there at the time, and I do not believe,
I doubt that he has ever been in that ditch.

THE COURT: I will sustain the objection as
to the question, as put, and the witness may only 
answer if he has personal familiarity with the 
time and place.

MR. SHEA: May I ask that the exhibit be
f

handed to the Court?
THE COURT; The Court has seen it, and v/e had 

an opportunity to see the exhibits that were intro 
duced yesterday, and the Court’s decision is not



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to apply, to be pre.'sersted, to present any reply as 
to asking or answeririg of the questions put to the 
witness.

I am sustaining the objection to the question
Now, I have said the witness can testify aoout 

the map in reference to his, in regard to his per­
sonal f arailiarity, and in respect to his familiarij;y 
of the time and place.

MR. SHEA: All right, sir.
I will withdraxv it.
Your Honor, I v;ould like to take the oppcrtu- 

nity Lo read those policies.
THE COURT: All right, you may do so. The

Court, at recess time will read those policies, an<ji 
if there, and the same instance as I indicated to 
Mr. Caldwell, if there is some particular aspect 
of it that one or the other of you gentlemen v/ant
to indicate to the Court, that is fine, but I thin).:

1

it will save us some time if we take a recess and 
view those items that have been introduced into 
evidence at this time, and the Court will read thei 
during the recess.

Is there anything further of Inspector 
Hubbard, Director Hubbard?

HR. SHEA: If Your Honor please, if Your Honot



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is goinfj to read these during the recess, I would 
like to have the Court read the '72 policy, v;as 
that in that, in the'ie exhibits, January 8, '72, 
at the tirae.

THE COURT: Yes, sir, I intend to read both
of those exhibits.

Anything further, gentlemen? Any further 
questions of the v/itness?

MR. SHEA: No, Your Honoi', not at this time.
THE COURT: Thank you, sir, you may step dov;n

(Witness excused)
THE COURT: We'll take a recess at this time,

and Mr. Clerk, if you will bring me the two exhibi 
in question.

(Whereupon, at 10:30 a.m., the Court was 
in the morning recess and pursuant to the 
morning recess Court reconvened at 10:44 a.m. 
and the following proceedings were had.)
THE COURT: All right, Mr. Clerk.
You may proceed, Mr. Caldwell.
MR. CALDWELL: Your Honor, our next witness

will be Cl^ief Lux.
THE COURT: All right, sir.

us



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HKNRY LUX,
the said witness, having been first duly sv/orn, 
testified as follows;

MR. CALDWELL: I'm sorry, Your Honor, I've
lost something (indicating in papers on table).
Well, anyway. I ’ll find it.

DIRECT EXAMIMATIOM 
BY HR. CALDWELL;

Q Would you state your name and your present occupa­
tion, please, sir?
A Henry E. Lux, an instructor in the Institute of 
Criminal Justice at Meraphis State University.
Q And in that capacity, you teach law enforcement?
A Yes, sir.
Q Courses, is that correct?
A Right.
Q How long have you been in that position with 
Memphis State?
A Slightly over three years, since my retirement 
from the police department.

/Q All right, sir.
Prior to going out to the State, you were chief 

of the Memphis Police Department; is that correct?
A That is correct, yes, sir.
Q And as I recall, you're retired, effective



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A Right.
Q And because of accumulative leave, you left office
on November 1, 1971, is that correct?
A That is correct.
Q How long had you been with the, with the police 
department in, at the time of your retirement?
A Twenty-six years.
Q V’ould you run through, just briefly the various
kinds of police positions you held with the police 

department?
A Well, I held every rank that they have from patrol 
man through chief.

I spent approximately ten years of my tenure in 
the investigative branch of the department, and 
(interrupted)
Q During what period of time was that?
A That was from 1952 until, until about '61, 1961. ^

Prior to that, was, I was in the field, in the 
patrol and also as a patrol lieutenant.

After my investigative experience, I was promoted/
to assistant chief, and just primarily administrative 

work.
Q That was about 1961, is that right?
A Yes, sir.

January 1, 1972?



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Q At this tir:ie, did you, there is, this little inanuaj 
which I think is still in use by some -- (interrupted)
A Manual of Rules and Regulations, right.
Q That is right.

Am I correct that you prepared that manual?
A That is correct. I prepared that in 1959, under 
the direction of the then Commissioner Claude Armour 
and Chief of Police J. C. MacDonald.

This did not necessarily reflect my philosophy. I 
was the correlating agent that put it together.
Q I understand.

Let me show you, show you the document marked 
Exhibit 11, and ask you if that is the manual that we 
are speaking of?
A VJell, v/ithout examining each page, it apparently
is. I would Say, yes.

MR. SHEA: May I see it, please?
(Whereupon, Exhibit 11 is passed to Mr. 

Shea.)
BY MR. CALDWELL:
Q Now, this manual, which is marked Exhibit 11, what

/was this?
A A manual that was given to each member of the 
department, each patrolman. It v/as, at that time, and 
contained information at the time, but it might have



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been discontinued at some poiiit in this tine, I'm not 
sure.
Q 1 think some of the patrolmen testified in deposi­
tion, indicated that they still had it. Others indi­
cated that they didn't have. So it would just be a 
matter of v/hether you got a copy back four or five yeari: 
ago?
A Right.
Q Was there any other manual governing various kinds
of police activities?
A In about 1961, again, as assistant chief, at this

»
time, I was inspector at the time I correlated this 
manual, I was asked to put together a standard operatinc^ 
procedure manual, which I worked on over a period of 
several months, and it was some two or three inches 
thick. This, I think, fell in disuse. It is the kind 
of thing that has to be updated almost daily, and it 
was not contained on any length of time.
Q This was not a manual that was given to individual 
police officers?
A That is right.
Q It v/as a, it was an administrative manual, right?
A Right.
Q Some inspectors, and those kind?
A It was theoretically available to police officers,



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police officers could study end examine it if they 
desired to check.
Q
A
Q

A
Q
A

Check up on different procedures, what-have-you? 
Right-
All right, sir.
Now, you were assistant chief from 1961 until -- 
July 1, 1968.
And that is, at this time, you became -- 
Chief.
Chief, right?

A Right

Q Now, Henry Loeb became mayor at that time, is that 
correct?
A That is correct. ' '
Q And he appointed you his chief of police?
A ‘.7ell, I think there might be some basis for dis­
agreement there. I'think the director of police, at 
this time, indicated that he- made the appointment, with­
out the consultation of the mayor, I ’m not sure, legally, 
whose prerogative it was.
Q Well, I don't want to get into political disputes, 
but for the record, the director at that time was Frank 
Holloman, is that correct?
A Right.

Q Had he assumed office prior to you -- had or, been



189 I

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police department too?
A Yes, sir, he assumed office in '68, when the 
council-mayor form of governraent took over.
Q All right, sir.

And he was what Mr. Hubbard is today, he was 
director, or was he director of fire and police?
A He was director of fire and police as distinguishei 
of General Director Hubbard being director of police.
Q All right, sir.

Predecessor v/ould have been Claude Armour?
A No, he was commissioner of fire and police.
Q All right.
A Under the old setup.
Q And was Mr. MacDonald your director of, chief of 
police?
A That is correct.

Q Chief, you are familiar with the Presidential 
Commission, Crime Commission studies, v;hat-have-you?
A Well, yes, sir, to some degree, I'm not an authori 
on them, but I'm certainly aware of them, and have read 
from time to time some of them.
Q I'm referring to one document entitled The
Challenge of Crime in a Free Society, a report of the 
President's Commission on Lav; Enforcement and 
Administration of Justice?



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A Right.
Q And another report by, entitled; "Task Force Repor 
The Police" by the same Presidential Commission, or sub 
committee of that commission?
A Right.
Q And both of these reports came out in 1967?
A That is correct.

Q - Along, among the things, documentaries in these
records -- (interrupted)

MR. SHEA; If Your Honor please, I ’m going to 
object to any reference to any crime report or any 
thing of that nature that Chief Lux did not compil 
did not compile them. It has no relevancy in this 
matter, now, it is certainly immaterial.

THE COURT: Well, without ruling on your
objection, at least, I v;ill overrule your objectio^ 
to the v^itness being questioned about them, to 
whatever extent he may or may not have knowledge 
concerning them.

I am, by overruling your objection, at this 
time, I'm not ruling on the materiality of these 
particular documents to the policy of the Memphis 
police.

MR. SHEA: So that I will not be jumx^ing ux>
and down. Your Honor, am I to understand --



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{interrupted)
THU COURT; I understand that you are objectify 

to going into any matter that pertains to, as beinv 
irrelevant and immaterial, and that is your posi­
tion, and, and will be your continuing position, 
and the Court will treat that as a continuing 
objection.

In overruling your objection, at this tine, 
the Court is expressly not ruling on the materiality 
or relevancy of those documents to the issues in 
this case.

BY MR. CALDWELL;
Q One of the topics which both of these reports 
devote a great deal of attention to is "police," what 
they call "Police Community Relations," and that is 
that there was a problem, there is a general report, bu 
that was a problem in Memphis also, has it not been?

A Well (interrupted)
Q (Continuing) -- Well, let me be more specific.
A Yes, sir, I would, I v/ish you would be a little 
more specific, but I would say, generally, yes, sir, it 
was a problem.
Q One of the topics of concern in this record, and 
I think it has been both in your administration and 
subsequent administration in Memphis, is the relationship



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of the police department v;ith the black community?
A That is a fair statement.
Q And, and the, this particular, the "Challenge of 
Crime in a Free Society" report, reflects on page 
ninety-nine an opinion research poll conducted for the 
Commission, v;hich reflects that there is a significant 
difference between the attitude of the black community 
and young blacks in particular, toward the police acros 
the country, and the attitude that whites have, the 
interpretation v/hich whites have of police agencies, 
does that square with your knowledge of the situation 
in Memphis?
A I'm trying to think of a study that was brought up 
during our depositions, and what it shows. I gave you 
a copy of it.
Q Right, which one are you referring to, sir?
A If the study shov/ed that then, I would have been
familiar with it, because I read the study that was 
done locally in the city of Memphis, of the joint study 
by the Memphis State and LeMoyne-Owen College, and I, 
of course, read that study.
Q All right, sir.
A And if it reflects that, then I'm aware of it, but 
it has been a long while.
Q Chief, the -- (interrupted)



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193

MR. SHEA: (Standing)
BY MR. CALDU’ELL;
Q (Continuing) -- to show you a document -- (inter­
rupted)

MR. SHE?^: Excuse me.
The sam.e objection as to the materiality of 

this particular document that is being offered.
THE COURT: All right, sir.
Well, again, the Court will overrule the 

objection to the questioning of this witness per­
taining to these matters, without indicating any 
materiality or relevancy v;ith regard to the docu­
ment as it relates to the issues in this cause. 

BY MR. CALDWELL:

Q There is a document marked Exhibit 22, Chief, and
it is entitled:

’’Survey of Attitudes Towards Police in 
Residents of Memphis, Tennessee."

It says it is conducted by LeMoyne-Owen College, 
Department of Psychology and Sociology, and Memphis 
State University, Department of Psychology, and dated 
November, November -- I'm sorry, March, 1970, received 
by Memphis police, 1970. That was a part of your offici, 
and you, and you did receive a part of that, part of 
that as a part of your daily -- (interrupted)



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194

A Well, actually, I, Director iiolloman received and 
passed a copy along v;ita roe.
Q We discuss this, and you mentioned this at your 
deposition, and you furnished us a copy?
A Ri g h t .
Q Fine.

One of those who contributed in the research, and 
this study, is Robert N. Vidulich, (pause)
A Vidulich.
Q And he is one of the people in the University out 
there, at Memphis State?

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A Yes, sir.

MR, SHSA: Out where?
MR. CALDV7U3jL: Out at Memphis State.

A Ke is the director of psychology at Memphis State.
Q I guess what I'm asking is both, these, both the
study and the Presidential Commission study, does deter­
mine that the black community is less receptive and is 
more hostile, and is more inflamable in their attitude 
toward the x^olice than as the white community, and does 
that square with your experience in Memphis? In other 
words, does this study by Dr. Vidulich reflect your 
experience?
A Well, we received more complaints from the black 
community in regard to the manner in v;hich police



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195

services were provided. Does that answer your question'' 
Q Sir?
A Does that answer the question?
Q Yes, sir.

Just to use one, there were a number of questions, 
but one question v;as :

"In general, what do you think of the 
Meraphis Police?"

And there were:
"Favorable-positive, ambivalent-mixed, 

and unfavorable-negative" 
responses in this particular said:

"Ninety-one percent of those interviewed 
gave an opinion in one of the first three 
categories." -- 

which is favorable-positive.
"A favorable opinion of police was 

expressed by fifty-two percent of these, 
twenty-five percent were ambivalent and 
twenty-three percent v;ere unfavorable.

"However, these totals mask a striking 
difference between blacks and v;hites.

"But favorable opinions were voiced by 
seventy-seven percent of v/hites, but by only 
thirty-eight percent of blacks.



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"If arabivc^lent and negative opinions are 
combined into a category of less than complete 
approval, sixty-two percent of blacks expresse 
this opinion, but only twenty-three percent c: 
whites."

And that is just one of the questions which they 
asked in this particular survey, but that does, does 
that Square with your experience?
A My general impression of the situation, I can only 
let that research, let it rest on its own bottom, I can 
vouch for it.
Q Well, I understand that.
A I have no knowledge of percentages, and I don't 
know.
Q But you are the -- (interrupted)
A The only statement, the fair statement that I 
could make, is that we received more complaints from 
the black community in regard to police service than we 
did from the vî hites, but to get into exact percentages,
I don't have that figure.
Q All right, sir.

Okay .
But those are the primary answers, that is the 

primary answer given between the blacks and whites, prî • 
mary difference?



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197

A Yes, sir.
Q Different attitude and complaints, and what-have- 
you?
A Yes, sir.
Q Now, in this particular survey by Dr. Vidulich, I 
believe, was conducted in conjunction with the N double 
ACP ad-hoc coniinittee meeting, meetings, which were held 
in,1970. Do you recall those hearings?
A Yes, sir, I recall them.
Q Those, those, could you tell me what you recall 
about those hearings, what was their purpose, and what 
were they?

A V7e didn't participate in the hearing, hearings.
Q You were invited though, is that correct?
A I think Director Holloman v/as. I don't believe I 
v;as ever invited. I believe he was invited.

All I know about them is what the news laedia carried, 
and I can remember very little about that.
Q But they were, they did conduct hearings over in 
the county courtroom?
A Right; that is correct.
Q And on several days?
A Right.
Q And -- (interrupted)
A Well, it seems to me it was over a period of week!



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one day a v;eek*
Q One day a v;cok for three or four v/eeks?
A Something of that nature, right,
Q And these hearings did get, they did get witnesses 
put witnesses on, and did get publicity in the Meraphis 
newspapers?
A Right, they did.

U ' And the rules of the hearing, or the general 
pattern of the hearing was, had to do with people who 
came and testified about incidents involving the Menphii 
Police Department?

MR- SHEA; If Your Honor please, I realize he 
has the right to lead the witness, but I think he 
is testifying for the witness.

THE COURT; Mr. Shea, as I stated earlier in 
this hearing, that the Court is not taking as proo^ 
or evidence the statements of counsel, v/hich in­
cludes the form of questions asked.

I'm taking my proof and evidence from the w i t ­
nesses and from material and relevant matters sub­
mitted in the form of exhibits.

So you may proceed.
BY MR. CALDWELL;
Q A general pattern of those hearings had to do with 
individuals who went before the committee hearing, and



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19 9

in th3 coviuty court building, and testified about inci­
dents that tiiey had, that they thought had occurred and 
nadc claiius of police brutality against the Memphis 
Police Department?
A That is correct, as well as some people that they 
designated as experts also testified.
U Some experts?
A Frora out of the city.
Q That also involved in that hearing, was had, had t4> 
do with bond-setting practices, I think, I don't know 
if you recall that or not?

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A I believe, I believe so. I believe that is correc-f:.

Q The Presidential Commission report has a long chap
ter on, on police relations v;ith juveniles, and if I 
could read just one summary paragraph and let me see 
what you think esf this.

On page 104, the paragraph beginning;
"Chapter three has discussed at some 

length the intimate street relationships 
between policemen and juveniles. Becausejuve 
niles frequent the streets so much, because 
they are usually in groups, because they are 
sensitive to real or imagined slights, and 
because the line betv;een natural and relativ'c 
harmless conduct and threatening or injurious



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behavior is often hard to di*av/, the police 
must exercise great discretion in dealing witl: 
them. Clear police policies about v;ays of 
handling various juvenile situations would be 
of great help to policemen on the street.
There is a trend tov/ard articulating policy 
about this part of police work."

Now, is the essence of that summary, is tliat the 
area of police relations with juveniles is more sensiti', 
and somewhat different than dealing with adults. Does 
that accord with your professional judgment and experi-

i
ence?

A I suppose that the juveniles are in a more formati\e 
stage and their relationship v;ith them might have more 
impression than they would adults, on the part of the 
police officer.
Q VJhen you -- well, juveniles, you take thera to juve­
nile court when you arrest them?
A Right.
Q Unless they were very serious crimes or something

Now, let me ask you another question about these 
two reports.

The Task Force Report and the Crime in a Free jI
Society Report, both of tnese reports make recornmenua iIi
tions on firearms use by police. j



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Were you a\7are of tlu^se at the time that you wore 
Chief of police? 
h These v.-ere 1967 publications, I'm sure I had a copy 
of them, because I have a copy nov/. I can't recall the 
exact date I got them, but I'm sure that, that I got a 
copy at some point.
Q The Crime in a Free Society Report, at page 119, 
has this statement in there and this recoramendation:

'‘In most cities police officers receive 
too little guidance as to when firearxns may 
be drawn and used. Recruit and inservice 
training should keep officers continualy alert; 

 ̂ to the legal and moral aspects of tlie use of
firearms.

"The Commission recommends:
"A comprehensive regulation should be 

formulated by every chief administrator to 
reflect the basic policy that firearms may be 
used only when the officer believes his life 
or the life of another is in imminent danger, 
or V7hen other reasonable means of apprehensio:|x 
have failed to prevent the escape of a felony 
suspect whom the officer believes presents a 
serious danger to others."

Now, did you either, in nineteen —  while ŷ ou v/ere



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cliief of police, or now, until through now, have any 
problems with that recommendation, probleras from a pro­
fessional standpoint?
A Vlell, obviously, I did. My policy v;as formulated 
on the basis of the statute, and the Court’s decisions 
that deal with tiiis particular aspect. This is an 
advisory commission. Very little of this, as a practica 
matter, has been adopted or implemented in any police 
agency, to my ki;owledge, around the country. It has a 
whole list of these, but I certainly would not think it 
would be my prerogative to adopt a policy contrary to 
the state statute and the decision of the courts.
Q All right, sir.

I
Do you have any, would you have any concern if sue. 

a policy v;ere implemented in Memphis from a professicna,. 
standpoint, regardless of the reason v?hy you didn't 
adopt such a policy, v/hat is wrong with it?
A A policy like that, I vrould be opposed to the adop 
tion of the policy of this nature, primarily, it is 
extremely ambiguous.

How do you expect a police officer to determine 
the fleeing felon, the extent of his threat is beyond 
anybody's v^ildest imagination. I think that is highly 
ambiguous and I would still favor following the state 
statute and the interpretation of the Court's that aave



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203

in recjard to this.
Q But you recognize that the state statute is not 
being fully implenonted in Memphis, or in other cities 
in Tennessee?

MR, SHEA: If Your Honor please, I ’m sorry to
interrupt, but this is the same thing that. Your 
Honor, he used on Director Hubbard's with, of Chie .1 

Lux's policy today, and this is, all of this stuff 
that has nothing to do v/ith that v/ent on on 
January the 8th, 1972

THE COURT: Well, the Court is going to over­
rule your objection in*the questioning of this v.'it- 
ness who had some responsibility, based upon his 
own testimony immediately before, at least, the 
time that, that this particular matter that we areV
concerned v;ith occurred.

Director Hubbard did not even come upon tne 
scene, according to his testimony, for some time 
after the occurrence. So for that reason, I \/ill 
overrule your objection as to the questioning of 
this witness, v/ho was in a policy position with 
the defendant with regard to policies that were 
purportedly in existence immediately before the 
controversy arose here.

I'll overrule your objection.



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204

But net his attitude today about 
v;hat he would do as far -- (interrupted)

THE COURT: Tiiat is, I v/ould, my ruling v/ould
be the same as I made in the case of Hubbard about 
what his present attitude may be, but counsel may, 
of course, question him with regard to what the 
policy and attitude was at the relevant time.

You may proceed.
xMR. CALDWELL: Thank you.

Q As I recall your objection to policy is directed 
tcv/ard vagueness?
A Well, I say it was ambiguous.
Q All right, sir.
A And that one part, part, and of course, I enlarged 
on that by saying that I didn't feel that I had the 
right to adopt a policy contrary to an amended state 
law, and court decisions in this area.
Q The Task Force Report recommends, at page 189:

"Deadly force should be restricted to th^ 
apprehension of perpetrators who, in the cour 
of their crime threatened the use of deadly 
force, or if the officer believes there is a 
substantial risk that the person whose arrest 
is sought v;ill cause death or serious bodily 
harm if his apprehension is delayed. The use



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of firearms should be flatly prohibited in the 
apprehension of j.ii s demean an ts , since the value 
of human liie far outv;ei(_;hs the gravity of a 
ixiisdemeanor . "

Is that right?
A I , of course, well, there is no qv.estion in the 
world, to them, Mr. Caldwell, and the Court has held 
this in Tennessee, in viev; of the statute that we have, 
but once again, to me, it is ambiguous to place the 
responsibility on an officer of making all of these 
determinations in a matter of ten or fifteen seconds, 
process that ne has to make a determination prior to the 
time, CO that, in his opinion ho has exhausted all othoi 
means of approliension, of apprehending the subject, and 
he results to what might be or potentially be fatal 
force.
Q But, don't you think the officer is entitled to 
detail guidelines?
A Well, to me the statute and the court decisions arti 
the detailed guidelines, as they are in, in all police 
practices. I do not, I can’t imagine that you’d adopt 
a policy contrary to state laws, and courts decisions.
Q Well, I mean there is the general presumption tha' 
every person knows the law, but you don't have many 
police officers in Memphis v/ho are lawyers, but I mean



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206

you may have some, but a very small percentage and they 
are not, they are not trained to keep up with court dec 
sions, and interpret court decisions, or anticipate 
court decisions?

A Well, v.'c issue a training bulletin which you are 
in possession of, that says identically what v/e, I'm 
saying. This was the instructions that we gave to the 
officer and certainly they receive training and requisi-};e 
training, and inservice training in regard to the use 
of their weapons, as v;ell as mechanically hov/ to opez'at^. 
Q I'm going to get, to get the policy in a minute.
A I aidn’t think it required a lawyer to understand
the law, necessarily.
Q All right, sir.

So that I can understand your objection to this 
policy, which, or to either of these policies, v/hich 
essentially prohibits the use of deadly force except in 
self-defense, defense of others, or where there is a 
reasonable likelihood that someone else's life is in 
danger, what is your objection from a law enforcement 
standpoint to this i^olicy now?

Now, I'm not trying to, I moan, I understand your 
reason about the state statute, and everything, but jusU 
putting that aside for the raoment, if you will, and teijl 
me ?



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A I think the proper ple.ee for this policy to be 
handled would be in the state legislature. It would be 
a particular bill for then to pass a state statute, and 
to redress the lav;s, the use of it, and I don't think as 
as a branch, branch of the governnent, I v;ould have the 
prerogarive of getting into it, into the other jurisdic­
tion, judicial, and all, all of this on the particular 
natter.
Q Chief, I understand your position.
A Right.
Q Just assume, assume with me for a moment, that you 
did have a prerogative, you did have a prerogative, 
would you have a special objection from such a policy, 
from the, from the standpoint that it is a policy that 
would be acknov/ledged that bad, and if you did —  

(interrupted)
A Let's see if I am understanding.

Did you, are you asking me to, for my professional, 
professionally, or moral objection to a policy of the 
police officers being allov/ed, allowed to use potential] 
lethal force in preventing the escape of a felon, 
fleeing felon? Is that what you ax'e asking?
Q I'm trying to ask you, let me repeat it, let's try 
to rephrase these recommendations, recommendations from 
preventing danger and harm?



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A Okay,
Q Essentially an officer v7ould not use lethal force 
except in defense of hiiuself or defense of hostility, 
soiaeone else, whether it is an likelihood, or reasonablil) 
likelihood that the fleeing felon will put someone else 
life in danger. In othex* words, it would not permit a 
simple fleeing burglar, v/ho is knov;n to be unarmed, and 
all of this sort?
A Vlell, to give the exact -- (interrupted)
Q Do you have an unlav; enforcement objection to this 
difference in that policy, to give a direct -- (inter­
rupted)
A I would be opposed to adopting that policy.
Q All right, sir.

Would you, could you elaborate on that?
A Well, as I stated before, it is, it is so ambiguou^ 
it is asking a great deal of a police officer to make 
this kind of decision in the few seconds that he has to 
make the-t, and logically, and reasonably, I think if 
criminals were given notice that they would not, not be 
stopped with all the forces necessary to stop them, that 
yoxi v/ould probably have a great many people running, and 
I think it would have some bearing on your ability to 
protect society, even though tiiere is no imperical 
research available to show either one way or the other,



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1 but in ny opinion/ logically/ and reasonably/ I uhink 
it would have a bearing on it, yes, sir.
Q but you say "inperically" you couldn't demonstrate 
that?
A There is no research, to ray knowledge, that has 
been directed specifically toward this.

It is the sane argument that you have in capital 
punishment. I ara not aware of any research and in 
talking to researchers, they have a difficult time tryirjg 
to put something together to show it. It is too nebulous 
on the part of the experts that you have, that I have

I

talked to.
Q So you essentially agree with Director Hubbard -- 
I knov; you didn't hear his testimony -- that the policy 
does have a deterrent effect on crime?
A I think logically and reasonably, but one opinion, 
there is notiraperical, or research that I'm aware of 
that absolutely shows.
Q You don't know with absolute certainty, for example 
v/hether any person who is about to commit a crime stoppejd 
and thinks if, v/ell, if I do commit this crime and don't 
get away, and the police arrives before I get away, the:[ 
are authorized to shoot me. Therefore, I won't commit 
that, this crime, I mean there is no -- 
A There is no research that I'm aware of that has



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been done in this area.
Q All right, sir-

Ara I correct though that, that an accepted priiicipl 
in lav; enf or cejaen t research is that people, that the 
norinal average criminal does not expect to get caught?
A I'm not av;are, you are saying "accepted research"?
Q y e s , s i r .
A Of lav; enforcement?
Q Well, has there not been psychological research 
with regard to the criminal's mind which confirms this?
A There might have been, but I'm not aware of it,
Mr. Caldwell.
Q Well, on the same specifics, of the sarae logical 
basis, that you are talking about, the deterrent effect, 
do you agree, agree that most criminals don't expect to 
get caught?
A Well, it v;ould be nothing more than an assumption.
I vi/ould assume they don't, yes, sir, but it is just an 
assumption.
Q I didn't understand, but you are also assuming that 
the deadly force, it is the same kind of substance that 
exists, and deadly force deters, deterrent, deters some 
people committing crime?
A 'Well, I am assuraing again, but I think it is a 
little more logical and reasonable to assume that aspect



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end to assume then the criminal doesn't expect to get 
caugiht, that is a little different.
'i But people don't go out, as a general p.atter, liopirig 
to get sent to jail?
A Well, I v;ould assume not.
Q Ok ay ,

You are in an area of sociology, do some people 
referred to as crirainals, and which is not my area, you 
understand, ljut v;e have a policy, and you have a policy 
and we still have it, which authorizes the use of deadly 
force in situations where we, well, in situations where 
for example, a juvenile is fleeing, a black juvenile 
is fleeing from a burglary, and he is not armed, and 
not reasonably expected to be armed, this policy, your 
policy allows that kind of use of deadly force, and it 
is, and I am trying to understand just how, just what 
the predicates were for that policy, and the only thing 
you've told me so far is that you assurae that it is, it 
has a deterrent effect on criminals, though there is no 
imperical research to prove that?
A 'Well, you have got about six questions there. Let|’s 
go back.

You say the use of deadly force -- Maybe I'm a 
little picky, but ~~ (interrupted)
W We are talking about firearms, if you will pay



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attention, sir.

A And, an officer has the right to use that force, 
v/hich is necessary to apprehend. This nay potentially 
be deadly, probably, the use of firearms does not result 
in as many deaths as it does on the part of the police 
officers, so there is a distinction there insofar as 
I 'm concerned.

Do you follov/ ne?
Q I ‘m sorry, I misunderstood you.
A Well, you said in the beginning that I had a policy,
that allowed the use of deadly force, and I had a policy
that allowed the use of potentially deadly force.
Q Right, right.
A I mean, to be sure, the policy, the policy said 
you have got to try to catch this fleeing burglar, some 
other way before you use your gun, and after you have 
exhausted all other reasonable means of apprehending him 
you could use this what potentially might be deadly 
force, and only after you have gone througii all of thosi
steps, you have yelled at him, and you have tried to
stop him otherv;ise, and you have rights, you have 
exhausted all others, well, the training bulletin, I 
think sights a court decision, which states that it is 
incumbent, or the effect of it is, on the officer, who 
has exhausted all of the means of apprehending, and



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213

prior to resortin^j to potential lethal force, and one 
thinq, everytine a firearn is used, it does not result 
in death. I don't have the exact, exact amount, but I 
believe it v/ould be fair to say that more people shot 
by police did not die than do die.
Q But you knov; that is a matter of coincidence, cr 
luck, or whatever you call it, I mean, it is a human 
beina being shot at by an officer?
A Well, it is one comxjolling a human being to draw 
and fire, and under stress, at a moving target, and he 
probably is moving also, and my experience is that you 
don't know where you are going to hit, as a matter of 
fact.
Q But the potential for death is there everytiine you 
pull the trigger?
h Certainly, everytime you use a firearm your poten­
tial is there.
Q All right, sir.

Now, given your qualifications, and I understand 
your policy is -- (interrupted)
A Policy was.
Q (Continuing) -- to the effect that it would autho­
rize the use of deadly force as last resort to stop a 
fleeing suspect?
A That is right, of a felony.



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Q Right.
And one of the things that you have told rae that 

policy is,, was predicated on, is an assuraption that, 
that it has a deterrent effect on crirna?
A No, ji did not. The policy v;as predicated on the
state statute and the court docisioius. You askoa me a 
question as to whether or not I thought it might have 
soma effect, but the policy was not predicated on that. 
Q Ckay.

But it is a policy, I think we established, that 
you are, that you, personally, prefer the policy if the 
legislature adopted a policy such as that in one of 
these studies, you v;ould, from a professional standpoin 
disapprove of that policy?
A I would disapprove of it, but I would abide by it.
Q I understand, I understand. I am not suggesting
that you would violate the law.
A Yes, sir, right.
Q So the policy that was in effect in 1972, v/as from 
your standpoint, an appropriate policy, from a law 
enforcement standpoint, and it was, as I understand 
your testimony, the cause, well, for one of the reasons 
it was, was because of the assumption that it has a 
deterrent effect on crime?
fi No, that is not correct. My policy was based on



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the State statute and court decisions, period.
Im'ov;, you asked me as a professional police officer 

o’hether or not I thought this might have some deterrent 
effect, and I said, yes, but my policy v/as not based on 
that.
Q All right, sir.

Dut is it your I ‘m trying to get at your pro­
fessional judgment, why, and your lav; enforcement judg­
ment about v.’hether or not that was a good policy, putti 
aside, for a moment, the statute.
A Legally, in my mind, after legal consultation, and
v/ith Mr. Holloman, v/ho was director, and is an attorney 
we discussed it, this, at great length, it is our opinivtm 
that, that v;e could not adopt a policy that, in any way 
conflicted with the statute.
U All right, sir.

T understand that. - - ...
A Right.
Q I'm trying to put aside the state statute here and
for a moment, find if the policy is good from the stand 
point of the law enforcement for, from your opinion, 
personal hnov/ledge of it, and, again, just in terms of 
an objective to eliminating crime from the streets?
A You are asking rne an opinion, and I said yes, but 
my policy v̂ as not predicated on this opinion.



216

1 I understa:ul that, I understand that, and I'n not

2 going to ever contend otherwise.

3 A Ok ay.

4 Q Cut what, v;hy is it a good policy, where, what I'r.i

5 trying to get at?

6 A I think, I think, once again, logically, and rea­

7 sonably, I think it has a deterrent effect. There is

8
9

no iraperical, once again, data, to show that, and in
! o talking to experts, researchers, they have a problem

10 trying to put together sor.ie forra of research that, that
iI1 11 would reflect this, because you don’t know what you
\si•1 12 deter.
)i
1 13 Q That is essentially the justification, putting an
15 14 identification?
1
S<t 15 A Practical and reasonable, right.
/
i
1

o 16 0 All right, sir.
i
i•i

17 Vie v/ere speaking of your, your particular policy,

\

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18 and did I leave a copy of Exhibit Number 11 up there?
19 A Yes, sir .

i
i 20 Q All right, sir.

5
21 Now, that, that manual of rules and regulations

1if]
\

22 which you prepared in '61, I think I find only one
23 statement in that dealing with, with the use of firearm;:
24 and that is section four point one one three, and that

t
t 25 is, v;ould you read that section, please?



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0 ̂

A (Readin-j) :
"No rneniber of the department shall inten­

tionally fire any v/eapon except as authorized 
by lav7. "

Q All right, sir.
Now, that is, that, am I correct, that is the only

statement about, about the use of firearras?
A I haven't researched it, and v/ithout going through
it, and this has been some thirteen years ago, if you 
have researched it, I'll accept your word.
Q VJell, I have read through it and I might have over 
looked it. There are some sections, four point zero 
five seven, and four point zero six one, do refer to 
firearms.

The first one says that the:
"Approved firearms will be a .38 caliber 

Smith and Wesson or Colt" -- 
A Right.
Q And the next one says:

"Every member shall be proficient in the 
use of his firearm."

A Right.
Q But as far as the circumstances in wlxich you can
actually use this stateraent, is the only way mentioned? 
A Right, but now, again, in there, that is not a



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218

policy, that is, I v;as trying to correlate it.
Q Again, I am trying to pin thin on the department, 
but not on you personally.
A Right.
Q Mov;, that, I mean that in this whole long document 
of regulations, that is the only statement dealing with 
when, given a police officer any guidelines as to when 
he can use deadly force, but you have a page and a half 
on when a member of the force should salute, should say 
halt, and hov; a law enforcement —  section four point 
one five three, for example, refers to the forty-five 
degree angle of the salute, and all kinds of details 
about the salute, and my opinion is that this, which was 
given to every member of the police department, did not 
contain any specific regulations in any details, fashion 
at all, dealing with the use of deadly force.

Nov7, was there anything; am I correct about that?
A About this?
Q Well, I mean, that one, I'm, i’f I'm correct about 
the one statement?
A Well, obviously you have read it, right.
Q Mas there anything else in use during 1961 up unti] 
let's say, 1969 , dealing v/ith the use of deadly force?
A up until 1969, there was inservice training given 
in the form of lectures, where the use of firearms were



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: 19

discussed in great length, usucilly by either the city 
attorney or one of the Assifjtant y'.ttorney Generals, or 
some lav/yer. Documentv;ise , I can't really say, v/ithout 
researching the police department, v/hether there v;ould 
be in existence or not.
Q Chief, one, one thing wliich v/as produced during 
discovery, discovery, is a document which I have marked 
as Exhibit. 12, and the second î age of this document doe' 
have a statement on, on the use of deadly force, and 
the second page is dated March 7, 1967.

Now, if I understand correctly, this is the large 
rule and recommendations, what did you call operation 
and procedural manual?
A Standing Operating Procedural Manual.
Q All right, sir.

Does this look like the pages from that?
A It appears to be. It is the same kind of indexing 
that was used.
Q Would you read it?
A Says:

"Section eight 0 one one six," (80.11(G) 
Q Well, you night just read the whole section to put 
it in context, if you will.
A (Re ading) ;

"V?hen resistence to arrest occurs:



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"The vast r.'.ajority of persons will subiuit 
to an arrest, however, sorae v;ill not. Against 
those that resist, the law gives an officer this 
po'wer, and he is equipped with the devices to 
effect the arrest and restrain then.

"The law, however, does not expect nor 
v7ill it tolerate the abuse of its powers or 
the use of devices beyond that v;hich is rea­
sonable to effect an arrest.

"The law gives an officer the right to 
use force or devices dangerous to human life, 
only in self-defense or the arrest of a felon. 
Never in misdemeanors, and the taking of life 
is justified only in cases of extreme necessitjy 

Q All right, sir.
Thank you, Chief.
Now, the next reference v/hich, which is made to, t^ 

the use of deadly force, v;hich we have come across or 
v/hich has been produced, is a document v/hich I have 
marked as Exhibit 13, and it is a departmental communi­
cation to all commanding officers, to, from you, and 
the subject is; "Warning shots."
A Right.
Q And the purpose of the memorandum was to eliminate
the use of warning shots?



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A That is right. It has nothing to do with the use 
of lethal force, but in that document, it does -- 
(interrupted)
Q Would you read the second paragraph?
A (Reading):

"Section four dash one one three of the
Manual of Rules and Regulations states:

"‘No member of the department shall inte:
tionally fire any weapon except as authorized
by lav;.' Generally in firing of a weapon
constitutes the use of deadly force. Deadly

»
force should be used only when necessary to 
effect the arrest of a felon, prevent the 
commission of a felony or when necessary in 
self-defense.”

Q And, and the rest is dealing v;ith warning shots?
A Right.
Q Prior to that time, had warning shots been per­
missible?
A There was no particular policy on it.
Q It was left up to any individual officer's decisio:
it is his decision?
A Right.
Q But at this time, at least, he, as result of that
memorandum, they were not permitted?



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A They Vw'cre not pernitted^ correct.
Q Is that because they believe it was more dangerous 
to society?
A Well, newbers of the scientific or weapon research 
department, the research department that I had, at that 
point, at that time, I went back and talked to the 
research departraent, and talked to a great many offxcer: 
also did some research around the country, to try to 
make a deterraination v/here, whether or not a warning 
shot had any effect on the individual, and they came to 
the determination that it did not. So if it had no 
effect on the individual, the only effect that it can 
have would be a bullet hitting someone or damaging some 
property, so there was really no justification of firin 
a v/arning shot. That was the conclusion.

Let me relate that, if I may, to the proposition 
of the existence of the deadly force policy has a deter 
rent effect on crime. If firing a warning shot does not 
bring home to, to a fleeing felon the imminent peril of 
being shot, and deter him from continuing liis escape, 
does that not seem, in your judgment, to undermine the 
assumption that the deadly force policy does deter crira 
in those who just have knowledge of the policy?
A Not at all. The thing that I don't like about the 
policy that you are talking about, the reason behind it



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1 is tlicTt you wo’ulil be r.iahing an announceneiit to all of 
the crirainais that the police would no longer use this 
kind of force, and it v;ould bo an open invitation to 
run, and it would seem to ne that you v/ouid Iiave, need 
a great many track stars as police officers to apprehend 
people, because if you announce to me, as a criminal, 
that you are iiot going to use, to use the necessary 
force to make me stop, then I ' la going to run, taking a 
chance on not getting caught, on getting away. And why 
shouldn't I. That is the thing that disturbs me, and 
logically, I think would have some effect on it.
Q All right, sir.

Now, you understand the policy which I talked about 
there, didn't tell the criminal community that they 
could run in all circumstances, and in all crimes, it 
v;as only those who don't, don’t, don't get involved in 
a paramount, if, indeed, it is a paramoxxnt crime, that 
deadly force would not be permissible against property 
crimes, or some fleeing persons in that category, would 
not have anything to do with armed individuals who pose 
a real threat to bodily injure or to bodily safety, I 
should say?
A I think it would have, in my opinion, I think it 
would have an effect on property crimes.
Q All right, all right, sir.



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224

Even though <j warniiig tihot hafj no effect cn a 
fleeing felon?
A That v/as the concluoion v;e reached.

V/ell, I'll not say just fleeing felons, warning 
shots have been fired in cases of r>isdemeanors also.

Now, let's look into a 'warning shot. Most of them 
were merely fired, shooting into the ground, wnere you 
s tood.
Q All right, sir.
A But the idea was, I think the idea was that hope­
fully they would stop, but the result v;e found v;as not 
such, and so there was no reason to continue.
Q Was that based on research in Memphis or around 
the country as a whole?
A In Memphis and around the country too.
Q All right, sir.

And most, have most urban police departments adopttd 
this policy, to your knowledge, or have you kept up wit 
it?
A vVell, I think there are some, some books tell you 
there are forty thousand policy agencies in the country 
and when you say most police agencies, it suras it up to 
say a great many of them certainly have adopted the 
policy of no warning fleeing shot.
Q Chief, that memorandum I just gave you was dated



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2 2 :

July 7, '69, that was Exhibit 13, and I have nov/ got an
unmarked docur.ient --

MR. CALDJELL: Which I ',/ould like to mark as
the next exhibit. Your Honor.

THE COURT; Let it be marked for identificatio 
THE CLERK. Number 38 for identification.

(Whereupon, the said instrument was 
accordingly .marked Exhibit Number 3 8 for 
identification only.)

BY iMR. CALDWELL:

Q Chief, this document marked Exhibit 38 is dated 
October 23, 1969, and it is from Chief Lux, and the 
subject is: "Arrest Procedures."

Now, there at the deposition we had, you read anoth 
another v/riting of some kind, or another memorandura 
from you, which dealt v;ith the use of deadly force, but 
I tJ^ink v;e have been unable to find that, but is this 
what we are talking about (indicating)?
A I recall having issued a specific, but, however, 
this embarrasses what I recall would have been in the 
specifics. This is a training, an in-service training 
bulletin, on arrest procedures, reviewed and authorized 
by director of fire, police and chief of police, issued 
October 23, 1969.

It also is signed by the director, his initials up

er,



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in the righthand corner.
Q And as I recall from the deposition, some of the 
language, you think, was Director Holloman's, who was 
personally responsible for it?
A VJell, first, the first, looks like a long, long 
paragraph was specifically written by him. Beyond this 
first paragi'aph, as I recall, this v/as the policy that 
was issued, and, of course, it stands, each officer was 
given a copy of this also.
Q All right.

flow, this, am I correct that this policy was issued 
in response to community protest \,’hich miglat have been 
intense and in that particular period of time?
A As I recall the, the conversations between the 
directors and myself, at that point in time, there was 
a case brought to our attention that was under investi­
gation by our internal security, involving an officer 
who had shot to prevent the escape of a fleeing felon. 
Death did not result in this particular case, but there 
was a question as to whether or not he had exhausted al 
other reasonable means of apprehension prior to that, 
that case was finally resolved by the grand jury, and 
sc we re-issued this in lieu of that.

If this is about the same time that the ad-hoc 
committee hearings were, I'm sure that this would have.



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22 7

we vould hav'e been, v/ould have been revievincj our r^olicy 
.(ould you read tiiat policy £or t}ie record, please?

A You want to read this from the top here (indicating
Q Yes, sir.
A (Reading):

"bfforts to destroy governments have 
started with the neutralization of law enforct 
ment and thus luaking law enforcement ineffec­
tive .

"This technique has been used many times 
We must give no one nor any organization any 
basis for legitimate attacks on this depart­
ment. The reputation of the department as the 
nation's finest has been made by the dedica­
tion, competence and efficiency of its per­
sonnel: individually and collectively.

"There has been considerable publicity 
recently in the newspapers regarding alleged 
•police brutality.'

"17e have publicly stated that brutality 
will not be condoned or permitted in the 
nemphis Police Department, and we believe we 
were speaking for every member of this depart 
ment. At the same time, we have and will baeĴ  

each member of the department v/ho acts within



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228

the lav; and perforruance in a professional man­
ner. Vie will not be stampeded by rash, irre­
sponsible charges of any person or group. We 
v;ill be influenced only by the facts as they 
exi St."

Q Is that a statement of Director Holloman, but you 
represent no personal responsibility for it?
A (Ho response.)

"The state lav/s concerning making arrests
are ;

"Forty dash eight zero eight. Resistence 
to officer. If, after notice of the intention 
to arrest the defendant, he either flee or 
forcible resist, the officer may use all the 
necessary means to effect the arrest."

The arrest code;
"Eighteen fifty-eight, 5040, Shan., and 

7000; Code 1932, 11539.
"The Tennessee Supreme Court has held:
"As regards the means to which an officer 

may resort to make an arrest, the law sharply 
distinguishes between felonies and misdemeanor^ 
While an officer may shoot or even kill a 
felon if that is the only means of taking iiim 

preventing his escape; yet in doing so the



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2 29

officer acts at ais peril, for a jury laay fine 
that there /̂a3 no reasonable necessity for the 
killing and that he is guilty of at least r.;an- 
slaughter. But an officer has no right to 
shoot at one guilty of only a inisciemeanor to 
stop his flight or prevent his escape.

"If with diligence and caution the pri­
soner might be taken or held, the officer will 
not be justified for the killing, even though 
the i^risoner may have committed a felony.

"The above law and State Supreme Court 
decisions are set out as all of us should be 
constantly reminded of our rights and obliga­
tions as police officers. Although forces 
necessary and required in appropriate instances 
to effect an arrest, defend ourselves and 
fellow officers, and prevent the escape of 
fleeing felons, we all realize that only that 
force which is necessary is permitted by law 
and no more, and none of us v;ish to use any 
more force than is necessary.

"The Memphis Police Department at the 
present time enjoys the respect and support 
of tlie law-abiding citizens of Memphis. Let 
us continue to prove to all Memphians that



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230

that respect is not misplaced. The future of 
this community depends upon it.

"We know that we can count on every memoe 
of the Memphis Police Department to discharge 
his duties fairly but firraly without regard to 
race, creed, or economic status, and without 
fear or favor. Crime and lawlessness in 
Memphis will be reduced as we all continue to 
diligently discharge our duties despite the 
efforts of some to harrass us and reduce our 
effectiveness . "

Q Ail right, sir.
Now, with the exception of the, of the other policy 

statement which you think v/as issued, and which we have 
bean unable to locate, that is the policy that v/as in 
effect throughout your tenure through that day forward, 
until you retired, is that correct?
A That is correct.
Q In the deposition we talked about the v\7idespread 
belief, and to some extent statements by particular 
officers that they are trained to shoot to kill when 
they are authorized to shoot, or when they deem it 
necessary under the policy to shoot, they shoot to kill, 
and you disagreed very strongly with that kind of atti­
tude in the deposition. I wonder if you could be, I



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v’ondGr ij. you could eladorate on that?
A v'jell, I thinic this i.oiicy lias reflected, reflects 
that to so.ac exteiit it has ul\/ays been iiy understanding 
in this area that an officer ll̂ls the right to use only 
that force v/liich is necessary to effect an arrest; that 
he j.'ust exnaust all other reasonable rtveans of effecting 
the arrest or p->revonting the escape prior to the use of 
t-otontially fatal force, aiul that generally is, has been 
r;iy unders Landing ciHu niy belief, and the intent of rny
policy. liever has, am I av/are of, a police officer |

I
being instructed to kill someone. This, to me, v;hen you 
propound th.is question to me in this manner, the inference 
is that the officer is going to execute somebody. I 
don't think the lav; gives him this right at all. A grealt 
many people that lethal force is used on is not lethal, j

i
they don't die. .So I cannot accepjt that statement in
that terminology or frarae of weapon, or -- (interrurjted)
Q I think you were in the courtroor.i yesterday after­
noon v/hen Patroliian P.ichards testified substantially to
the effect that he thougliLit was his understanding that ; 
'When ha fired he shot to kill, and that killing the sus-! 
pect taat he 'was shooting at was the object, objective. ; 
A I didn't, I don't think I heard '̂ that testimony. I j

I

think I iieard it from a deposition, he might have testi-i
j

fiod. I wasn't in iiere during his entire testixiony. |



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.All rif_,iit, sir.
Just a r'irmte.
Do you thin}; you road that in the deposition, is 

that rifjhtV
A Or \/ords to that erfect.
Q Hr. .Arnold says tl'.at ray have been \/here that cane 
f ror,.
jy I don't agree with that statement. I ' rf\ not aware 
of any instructions that any officer has been given to 
execute anybody.
Q So that, and that attitude lilce t.hat, v;ould not be 
consistent v;ith \;bat you thouglit you v;ere training 
police officers to do?

A './ell, I think it is obvious, when you read this 
policy, that it is not.
W Is such an attitude, does such an attitude under- 
nine your policy of i;olice officers widely hold up> that 
attitude?
A hell, if it is, if it exists, presumably it v/ould. 
I cannot vouch for its e::istence. I don't believe this 
was, there was any v/idespread attitude of that sort 
thing. It is a senantical problen that v/e are probably 
worl'ing v;it]i here.
Q \.'ell, it is, I understood it to be an attitudinal 
problerr.. You disagree v;ith anybody tliat had that



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attitude, thinking it v/as a part of the training?
A Very definitely do disagree v.'ith any v;ho, anyone 
who has that attitude, certainly.

Q Again, during the deposition we discussed another 
subject, sort of intangible phenomena, there was a i)ure 
group, and you indicated that, that is an, or your 
opinion, experience, indicated there was a certain group 
of officers of the pure group, among the force, which 
professionally ostracized a police officer if, if he 
didn't use the deadly v/eapon force, indeed, deadly force 
in which may have otherwise -- You reraeraber that?
A (liods head in the af f irraative .)
Q And you discussed some of the steps you took in 
hopes of changing that attitude or in overcoming this.
A It, the attitude existed at, v/hen, it did when I 
was there in this area, to, to the effect that police 
officers would ostracize another police officer if under 
the prescribed situation of preventing the escape of a 
fleeing felon he didn't resort to the use of sufficient 
force to stop him, yes, sir.
Q And did you take steps wnile you were cnief to 
overcome this? Did you consider tliat policy there, for 
example, to be one of those same steps?
A I let it be knov/n by word of incuth that no one 
would ever be criticized by making the decision not to



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fire. “This ’.-/as his decision that he was faced with. he 

was the onl.y i,\an, in ir.y opinion, that could r\akc that 
opinion, because he is there on that spot cit that tinie, 
and this instant, and if he resolved in favor of not 
firing, he v/ould not be criticized.

hov/, just hov; widespread it would go —  {interrupted}

Q Well, didn't necessarily, I iiean, that you elir.ii- 
nateu the pure group pressure?

Of course, I don't know, but I, I don't know how 
widespread it was, but I let it be known at the top 
that was ray policy, but I think, really, let rae put that 
in perspective, by simply saying this, in luy mind, my 
opinion, an officer is faced almost daily with the sane 
situation. He either observes, or has knowledge of, is 
either brought to his attention, that he has to analyze 
and represent this in terras of the law, and in making a 
decision, and he has to do the sane thing iii regard to 
use of force to prevent the escape of a fleeing felon.*
He first has to determine if lie can be apprehended 
another way, but after he raakes that determination, he 
has to make the determination v;hether or not he is going 
to use fatal force, and it is my feeling that an officer], 
he is the only one there, and regardless of what kind 
of guidelines you get, or how many rules and regulations 
you write, unless you say you can't shoot except in



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235 1

self-defense / then you kno*.;, period, then that is very 
clear, but as long as you leave it on his shoulders, he 
is the K.an that has to ma];e that deterraination. he has 
to translate that hunan behavior in terns of law and 
decide the felony coirunitted, and how rauch force he can 
use to lawfully prevent the escape of that felon, and 
this, of course, is for him to decide, and I don't thin] 
a great raany Memphians consider the standards, the deter­
minations that the people-officers have to make.
Q Chief, let me return a moment, if I can, to the 
relationship between the police officer and the black 
community, and \/e discussed evidence of disparity and
attitude within the black-v/hite community, and vis-a-vi^,

Ithe Memphis Police Department, that is, the blacks, j
black community, has leveled charges of misconduct and j 
what-have-you at the department over the years, whether; 
or not it is justified, there has been a history of 
racial discrimination in the city, and we have a history 
of which reflects, for example, that at one time black !
persons were arrested for trying to use the public 
library; am I correct about that?
A That is correct.
Q And golf course and art gallery?
A That is correct.
Q And parks, and the transit authority, those thingsJ



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:36

those kind of tninys?
A This was enforcing lav/s that v/ere on the books at 
that tiir.e.
Q I understand, but those laws are on, if you will, 
on tne books, discriminatory against black people, not 
legally, but maybe they did make distinctions?

I'm sorry, well, that is your interpretation that 
it v:as discriminative. I think, obviously it was, but 
it was a city ordinance that v/as being enforced at this 
time, particular time.

Q All right, sir.
We have had other, I mean, grov;ing out of these 

incidents, which I guess you would relate to what is 
commonly knov/n as "Civil Rights Movement" in the late 
fifties and early sixties, that is the attitude that has 
grown out of the, the attitude that we discussed earlier 
has grov/n out of, out of this period of tirae, that is, 
the black communities' resentment to the police depart­
ment, and does look on then with great fear of, fear or 
mistrust, or not, not as acceptable as it is in the 
white community, and some of the things we have had, v/e 
had Elton Hayes killed in 1971, and you were still chief 
then.

MR. SHEA: Your Honor, I don't think, again,
what is the relevancy of the Elton Hayes case in



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this matter?
) 2 THE COURT; Hell, we hfive had a very lon^
!

3 question that has been asked, and I would feel that

4 the, any question pertaining to a specific incident

5 or episode ought to be separated and apart from any

6 gejieral attitude that may be asked about.

7 I ’m not sustaining your objection to the

8
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asking of any question, it just seems to the Court

\ 0 that, at the time your objection was made that we

j 10 had a very long question pertaining to, generally.

i 11 to attitude and what counsel vi/as saying, why, v;hy
•/
1

]
12 the attitude might be there, and so forth and so

13 on, and I will just suggest that the question be

1 14 rephrased.

15 MR. CALDWELL: All right, sir.
1t
4 16 I \7ill rephrase the question.
\

1
i 17 THE COURT; All right, sir.
A
t 18 BY MR. CALDWELL:
1i 19 Q Chief, I was driving at, at events which had

20 occurred, which had either caused the relationship
k
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1 21 betv/een the police and the black community to be what
i

22 it is, or which, which evidence that it is, what it is.

23 and we have talked about the early days of the Civil

24 Rights Movement, where blacks were arrested for the

25 library, and what-have-you, and I was, and another event



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which has at least evidenced a great deal of distrust 
among the black corainuni ty, and the police department, 
was the Elton ilayes killing in early 1971, late 1971; ara 
I correct that the black community did engage in a serie 
of protest activities following that particular death of 
a seventeen year old black youth?
A Well, of course, you are asking me to make a judg­
ment as to how something, some circumstances affected 
the attitude of people?
Q I'm sorry. Let me make it different. Let me strik 

what I have said.
In October, October 15, 1971, a young man named 

Elton Hayes, who was seventeen years old, was killed in 
circumstances in which, which the police department was 
accused of being responsible for it, or members of the 
police department, and the sheriff's department, is that 
correct?
A That is correct.
Q And, and following that incident there was a great 
deal of protest activities in the black community 
directed against the Memphis Police Department?

HR. SHEA: If Your Honor please, I am going to
object.

What materiality or relevancy can this be of 
any incident that took place in 1971, when Mr. Elton



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Kayes died, and the occurrence that took place on 
January the 3th, 1972? There are two completely 
unrelated incidents, and has absolutely no bearing 
on this case, and no relevance v.’hatsoever.

THE COURT: The Court v/ill make the same rulin
on, we did on the previous commiss ion (objection) , 
and other matters, that were earlier objected to. 
We'll overrule the objection for purposes of the 
question being asked, and the response, if any, 
given.

By overruling your objection, we don't indicate 
that the Court attributes any particular materialitjy, 
or that we do not attribute any materiality or 
relevancy to what nay have occurred in another 
instance, and in another episode of, in October of 
' 71.

You may proceed.
BY MR. CALDWELL:
Q Do you recall the question?
A The question -- (pause)
Q In regard to there was a great deal of protest?
A Yes, sir, there was an instance, I mean, yes, sir,
there were numerous incidents of blacks throwing fire­
bombs, firebombing several business e s, looted , well, 
numerous businesses, places here.



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240

Q There were more, also more civil right activities,
things like that, the black members coning in, citizens, 
to cone to the leaders, coning to the police departraent, 
and city council, and protesting; right, were there not?

A Right.
Q This was roughly a year or year and a half after
the llAACP ad-hoc coraraittee meetings which we discussed 
earlier, in which allegations were made?
A That is about right.
Q Now, what I would like to, what I would like to
ask you, based on this clear evidence of mistrust in

I

the black community, on the part of the police department, 
or vis-a-vis police department, and speaking of young, 
young blacks in particular, is there not, using the same 
kind of assumption we have been trying to make, v/ould it 
not be valid to assume that a black youth v;ould be con­
siderably less likely than a white youth to obey a polic 
officer's command to halt?
A I don't see how I can answer that question. I reall 
don't, I don't have any data that I'm aware of that 
would tend to indicate either one way or the other. I'm 
just not -- (interrupted)
Q Chief, I understand that.
A I can't actually, factually answer that.
U You don't have any data v.’hich indicates that.



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1 supports the asnuraption that the deadly force policy 
deters crirae either, only it is logical assuription on 
your part?
A Right.
Q My assuraption is, given the relationship of the
black comraunity and black youths particularly, V'/ith the 
Memphis Police Dapartraent and their perception, is it 
not an equally logical assuraption that, without data —  

(interrupted)
MR. SHEA: Your Honor -- (interrupted)
THE COURT: Go ahead and finish your question.

BY MR. CALDWELL:

Q (Continuing) -- even without data, given those factls,
I mean this is data that indicates, data indicating that
there is the attitudinal, given those facts, is it not
a valid assumption to assume that a black, black youngster,
would be less likely to obey a police officer's command
or directive in regard to any particular thing than

0v;here a v/hite juvenile?
MR. SHEA: If Your Honor please, I object.
Chief Lux has already testified that he, that 

he knows only of, that he knows of nothing that 
would, of anything, that he has no knowledge of 
anything that would let him, lead him to believe
one way or the other. He is just asking the question



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over acjaxn.
THE COURT: I will overrule the objection and

the v/itness may respond if he knows and has a 
response.

A I cannot apply the same logic to that as that I did 
did to the, I can to the other. It is just, it just 
does not, it just doesn't fit any opinion. I have no 
v;ay to make that determination and it is not as logical 
as the other determination you referred to me.
BY MR. CALDWELL:

Q So, but you don't, so you are, you wouldn't be 
willing to make that, that assumption?
A No, sir.
Q \7ould you have any, any feeling that it v/ould be 
an invalid assumption?
A Neither v;ay; neither way.
Q Chief, just for the record, at the time you were 
chief, or during part of the time you v/ere chief,
Ronald Krelstein was legal advisor of the police depart­
ment; is that correct?
A That is correct.
Q We have a number of exhibits which have been pro­
duced by Mr. Shea, where Mr. Krelstein, through the 
International Association of Chiefs of Police distributcjd 
requests of the department across the country for their !



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243

deadly force policy, arfiOiig other things, do you recall 
that sort of survey being taken?

As it happened, I talked to Hr. Krelstein on yaster 
day. He reminded me of the fact that he had talked to 
me about researching other departments to see what their 
policy was and again, that, I don't know v?hat the, I 
think when you asked me this in my deposition, I couldn' - 
recall, I said I might have. I was very much in favor 
of researching anything v/ithin the police department, so 
I usually said: "Go ahead." That doesn't necessarily
mean I would change the policy.
Q By the time you had left office you had not?
A We had discussed.
Q You had resolved that sort of thing?
A No, we had not.

THE COURT: Before you go into another matter,
I'm going to recess this hearing at this time to 
take up some matters with the lawyers in the jury 
case that is now pending.

I don't know how long it will take us to go 
into these other matters, but I think, in any event 
I will go ahead and excuse you gentlemen until a 
quarter of two.

The Judges have a usual meeting that we try 
to get together on occasions on Thursday during thej



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noon hour, so I'm going to recess as far as you 
gentlemen are concerned until a quarter of two.

MR. CALDWELL; Thank you, Judge.
(Whereupon, at 12:01 p.m., the Court was 

in the noon recess, and pursuant to the recess 
Court reconvened at 1:46 p.rn. and the follov;in|g 
proceedings were had.)
THE COURT; All right, gentlemen.
HR. ARNOLD: Your Honor, because of a witness

schedule, Mr. Shea has agreed that we interrupt 
Chief Lux's testimony at this point to place 
Captain Coletta on the stand.

THE COURT; All right, sir.
So we'll call Captain Coletta.

(Witness Chief Lux temporarily excused.)



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24 5

JOIIM A. COLETTA,
the said v/itness, having been first duly sworn,
testified as follows:
DIRECT EXAMINATION 
BY MR. ARNOLD:____

Q State your name and occupation, please, sir?
A John Coletta, police captain.
Q And what is your job with the Meraphis Police 
Department?
A Primarily I'm assigned the range officer, in charge 
of ordnance section.

t
Q When a shooting occurs, do you have some responsi­
bility at this point to make some type of investigation? 
A Yes, sir, we, we require a report to be submitted 
and it is my responsibility to see that, that the facts 
of the case are gathered so as to present to the super­
visor of the firearms revie\^ board.
Q When did you start doing that?
A The firearms reviev/ board was inaugurated in March 
of last year, I believe.
Q And you started then in March collecting this data 
or collecting this data on each shooting incident, is 
that correct?
h For the firearms review board, priox' to that time.
Q Had you?



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24 6

A Prior to that tirae.
Q All ricjht, sir.
A Prior to that tine I collected similar data for
similar purpose, to evaluate what performance in the
field v;as, and how it applied to the training, and what
methods and techniques could be employed in training to
better prepare an officer for his function in the field.
Q And how long have you been collecting data, how
long have you been collecting data for that information?
A Some time, several years prior to that, however, it
wasn't always complete, because of our priraary function

»
of training, we may not could get the necessary data 
together on every case.
y In that connection, have you had the job in connec-j

»
tion with this lawsuit of preparing data that has been j

i
requested by us concerning shooting incidences, connected 
v/ith police officers? ji
A Yes, sir, I have.
Q I want to show you some exhibits.

t

' (VJhereupon, said instruments are being '
passed to the witness.) II
MR. SHEA: If Your Honor please, I am going to

Jobject to the introduction of this work compiled b y  

the captain. Captain Coletta, in that it has refer­
ence to shootings, shooting incidents that took



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247

place, I believe, in 196-- 1968 through 1974, and 
our inquiry today is into the death of Fred Lee 
Berry, v/ho was killed in 1972 , and I feel that any­
thing having to do with any other deaths as result 
of police action is irrelevant and iii'.material, and 
certainly has no bearing on the facts of this lav;- 
sui t .

THE COURT; All right, sir.
MR. ARNOLD: Vie have alleged in this lav/suit,

of course. Your Honor, that there is a policy in 
practice and as instated by the Meniphis Police 
Department, of using deadly force, disproportionatejly 
against blacks, and that that was a factor or a 
primary factor involved in the death of Fred Lee 
Berry.

We want to introduce this to show the pattern 
and practice, and to show how this policy has been 
implemented through this period of time, and we 
think it is extremely relevant, and important, to 
our case.

THE COURT: Well, all you say is pertinent up
to January, 1972, you haven't given me a single 
reason how anything that happened after 1972 is
pertinent to our inquiry since January, 1972. j

I
Is this a suit to set aside and to direct the |!



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police dcpcirtnier*tr afior ihat tiiue f to be r or for 
benefit of future litigants, v;ho could be bringing 
cnarges in regard to the departraent, or is this a 
case regarding Wiley versus Police Departinent? If 
it is the latter, we are, what is the relevancy of 
the things that transpired after January, '72?

MR. ARNOLD; This policy, of course, the 
Memphis citizens, and the Memphis Police Department 
defendants, the policy, in its implementation, since 
1972 and 1974 have not changed, and they show, and 
for statistical purposes, in terms of numbers, to 
show that the policy has not only not changed, but 
that discriraination exists, and if so it was the 
s ame.

THE COURT; So anybody that was fired on in 
1972, and had the reasonable right to know and 
expect that in 1973, and 1974 there would be the 
statistical incidence of firing at persons, is that 
right?

HR. ARNOLD; The disproportionate effect on 
blacks is the same throughout this period of time, 
and we think it extremely relevant to shov/ this 
pattern through this incident, these incidents tiiat 
have been collected by the police department. ,

j

THE COURT: Well, this Court is going to rule |



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249

tliat cinything after 19 7 2 is inraaterial and irrele­
vant, as far as this Court is concerned, unless 
persuaded otherwise. Hereafter, this Court will 
not concern itself v/ith data pertaining to in 1973 
and 1974.

For purposes of your record, the matter may 
be submitted and identified for any other considera 
tion by anyone else that may be reviewing the matte 
but this Court is not persuaded that actually any­
thing after January, 1972, is relevant to this 
particular situation, but I'm going to permit you, 
with the observation that the Court has made, based 
on the objection, to admit the document for identi­
fication only as it pertains to matters after 1972.

I will admit it, provided a proper, appropriat 
predicate is laid as to the other, through 1972, 
but, but with serious doubts experienced on the 
part of this court, that anything after January, 
1972 is relevant and material to the issues in this 
controversy.

MR. ARNOLD: If I may. Your Honor, I would
like to ask Captain Coletta a couple more questions 
regarding deaths, and -- (interrupted)

THE COURT: All right, all right, sir.
MR. ARNOLD: And then address myself again to



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the Court's ruling.
THE COURT; All right, sir.

BY MR. ARNOLD:
Q Captain, I'll shov; you the data and, they are 
r?.arked, if you will, one of these was submitted to us ir 
handwritten form.

DO you recall that?
A . Yes, sir, I do recall that.
Q And getting that information through you, and we, 
of course transcribed it.

Could you tell us which one was submitted in that 
form and then has been transcribed by us?

A Yes, sir.
It was prior, this thing, if I'm not mistaken, I 

think that is the one that was --
Q Exhibit 18(a), and what does that compilation show. 
Captain?
A Oh, it is facts and figures, dates, times, locations, 
and officers, suspects and summary of police incidents 
v/hich I presumed to be the, them firing at felons, or, 
or fleeing felons, or v;hatever.
Q And that period begins when?
A According to this sheet, the first case is 2-3-69.
Q V7hat about information prior to 1969 , Captain?
A I can't help you there. The only recourse you may



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have is by honicide, files that were, files that were 
obtained by honicide. Of course, that request, I did gc 
to the homicide files, and extracted data that was sub­
mitted to Mr. Shea.
Q V7hich data was that?
A 1 believe you have the sheet in your hand.
0 All right, sir.
A Yes .
Q VJould you identify the other three documents, please?

THE COURT: Would you identify them all, all
in the course of your testiuiony. Captain Coletta, 
by reference to the number of the exhibit so the 
record will know, knov/ what it is that you are 
making reference to, please?

A Thank you.
Number 29, is the sheet covering the period of 

years from 1966 to 1974, on persons killed by police 
officers, sir.

It contains relevant dates that, as to whether they 
v;ere fleeing, v/hether it v;as self-defense, names, dates, 
times, and a brief statement about the circurastances of 
the killing.
BY MR. ARNOLD:
Q Did you compile that from your record?
A No. These records were from, compiled from homicide



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records.
Q And what about the inforraation prior to '66?
A I have no knov/ledge of anything prior to 1966 .
Q All right, sir.

Go ahead.
A Exhibit 19(a), I don't recognize as anything that 
I have done. However, it appears to be extracts from 
the reports which I did submit to Kr. Shea's office.
Q All right, sir.
A I did not compile 19(a).
Q All right, sir.
A Did not compile Exhibit 5(e). However, I do recog­
nize it as being the persons killed by police officers 
and the police officers involved.
Q Involved?
A Yes, sir.

(Whereupon, 24r. Arnold is passing opposing 
counsel the documents.)

Q Captain, in, in connection with this, and particu- I
I

larly in our response to our interrogatories, and requests 
for production, did you file this affidavit?
A Yes .
g Sir?
A Urn-hum. I think my instructions were, on interroga
tories number five, and this says number four in that:



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"Officer Richards complied with depart­
mental procedure in filling out a firearms use 
report, and in writing a letter concerning the 
incidents surrounding that case."

I stated that:
"The subject was not interviewed, as the 

letter v/as self-explanatory and the informatiejn 
extracted from the firearras use report indi­
cated that this incident was unavoidable."

If I may identify it for the record, this is market 
at this time, Exhibit 5(b).

THE COURT: Five (b) as in Baker?
THE WITNESS: B, as in Baker, yes, sir.

BY MR. ARNOLD;
Q Captain, further that says:

"V7ith respect to interrogatory number 
five of plaintiff's second interrogatories and 
requests for production. Captain Coletta states 
that said interrogatory has been complied with

I

to the extent possible, in that all cases whiejh 
resulted in death of suspects at the hands of
police officers are herein recorded as extractied

i
from homicide files. }

I

"In addition, a summary of all letters j 
and firearms use reports have been submitted j



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:54

to the firing range since July, 1971, when 
this policy v/as initiated, is enclosed.

"Finally, he states that for further 
information of incidents, it has been deter- 
rained that no feasible raeans can be instituted 
other than exhaustive hours of file searching 
to include raaterial prior to that date."

Is that correct?
A That is correct.

Q And you have filed such an affidavit?
A It is correct.

MR. ARNOLD; Now, I would like to address my­
self again to the Court's prior ruling.

THE COURT; All right, sir.
MR. ARNOLD; Specifically, in light of the 

affidavit by Captain Coletta, the purpose of our 
inquiry here was to support the allegations which 
v/e believe that we can prove about a racially dis- 
criminatory administration of the deadly force 
policy.

The reason that we would urge the Court that | 
incidents after the date of January the 8th, 1972, |

i
Iare relevant, are for the gathering of a, of data 

with sufficient number of incidents to have some 
statistical importance.



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Again, based on that, we would urge and move 
that these exhibits be admitted into evidence.

THE COURT: Well, Mr. Shea, do you wish to be
heard?

MR. SHEA: Your Honor, if it please Your Honor
I raean, we object for the same reasons I stated 
earlier. There can be no relevancy to anything 
that happened, happened after January the 8th, 1972

THE COURT; Well, the Court will admit into 
evidence all of the data and information that has 
been submitted through 1972, noting the objection 
to anything after January the 8th, 1972, made by 
the attorney for the defendants.

The data as to any period after 1972, will be 
identified, and it will be a part of the record for 
identification purposes.

The Court, at this time, subject to any furthejr 
consideration or reconsideration, would rule that 
anything after 1972 would not seem pertinent or 
material, or relevant to the inquiry pertaining to 
v/hat took place in January, of 1972 , and what the 
then policy practices and procedures were, and for 
statistical purposes, or otherv/ise, what may have

t

occurred thereafter does not seem, to the Court to |
!

have any sufficient relevance to be admissible for |



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purposes of the Court's consideration of the issues 
here; but certainly, the plaintiff should have the 
opportunity to have those natters in the record and 
have an opportunity to i:>resent the plaintiff's 
viewpoint pertaining to, to these natters, but the 
Court is unpersuaded at this time that we should 
consider anything after 1972, and doubtful that vve 
should consider anything after January, of 1972.

(VJhereupon, the said heretofore mentioned 
exhibits, having been previously marked for 
identification only, pursuant to the Court's 
ruling, 18(a), 19(a), to such portions that 
come under said ruling, are admitted into 
evidence, and the remainder of said exhibits 
are in identification status only.)
MR. ARNOLD: That is all I have of Captain

Coletta.
THE COURT: Any examination of this witness? j

j
MR. SHEA: Excuse me, if Your Honor please, j

I

it is my understanding that Captain Coletta is being 
offered at this tine to lay a predicate for some 
other witness that they intend to introduce, and 
it is my understanding that is an accommodation,
subject to the approval of the Court, that will be j

I
done, and then we'll put Chief Lux back on the '



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stand, and after you had put your statistical wit­
ness on (indicating to Mr. Arnold)?

Till; COURT: Wliat I'm asking then, the Court
didn't make it clear, is Captain Coletta to, to be 
offered as a part of the defendant's proof or does 
the -- (interrupted)

’•IR. SHEA: Yes, sir.
THE COURT: (Continuing) -- or does the defen-j

dant wish to offer, offer him, offer any examination 
at, of the witness, at this time, or does -- j
(interrupted) »

MR. SHEA: No, I do not.
THE COURT: All right.
MR. SHEA: But he will be a part of the defen-*

dant's proof.
THE COURT: All right, sir.
You raay step down.

(Witness excused)
MR. SHEA: I assume that he is still under the

Rule, if you will, wait in the witness room.
THE COURT: Mr. Lux, if you will, please, are

I1
you ready to resume? j

MR. CALDWELL: Your Honor, have a statist!-
j

cal witness we are going to call, but we have calledf
him, and I would like to identify, for the record, I



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and offer into evidence, and I have another docu­
ment, Your Honor, that if we can nark for the next 
exhibit --

THE COURT: Let it be marked for identification
as Exhibit Number --

THE CLERK; Forty for identification.
THE COURT; All right.

(Uhereupon, the said instrument was 
accordingly marked Exhibit Number 40 for iden­
tification only.)
MR. EHEA: If Your Honor please, at this time,

I v/ould like to object to Exhibit Number 188, or 
is that 18(b)?

Excuse me, ny adversary thinks it is 18. It
iis entitled the summary of police shootings, not '
iresulting in human deaths, February 3rd, 1969,

through February -- excuse me, June the 17th, 1970j
IThe second one is 19(b), summary of police i

shootings not resulting in human deaths, May the i 
16th, '71, through February 9 -- the 8th, 1974, :

I!
which concludes two years after Your Honor has |

I

ialready indicated that he was not going to permit.| 
And third is the Exhibit 20, summary of policy 

shootings not resulting in human deaths in 1969 to 
'70, and 1971 to '74, summaries.



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So the exhibits, as they are, do not comport 
to Your Honor's earlier ruling.

Also Exhibit Hunber 40, 40, which has been 
marked for identification only, it has a compilatidn 
that includes the years 1970 through 1974, which, 
again, I object to.

MR. CALDV7ELL: Your Honor, if I may further
explain.

THE COURT: All right, sir.
MR. CALDWELL: Exhibit 40 is a compilation ofi

arrest data which was supplied to us by the Memphis
Police Department, and it is just a tabulation of j[
those, those which Mr. Arnold prepared. Exhibit | 
18(b) and 19(b), and 20, are summaries, just adding

j
up totals and placing them in categories for infor­
mation from information which Captain Coletta has !
furnished us. j

i
Now, I recognize, in view of Your Honor's jJj

ruling, there is a problem with the post-1972 dates,
but that, that, but we are talking about, with that

iright, at this time, because, because that is the ;
j

way we prepared the exhibits. |
I would point out that the post-1972 data will 

not influence the results of our case or of these j 

statistics unless there is a racial difference in



260 ;

1
j

the post-1972 data, and we can, we can exonerate |

2 that -- extract that, if that is not -- I think by j1
3

I
taking out the post-1972 data, at sone point, and j

4 sho\i7ing that our use of these statistics has not

5 been, has not been affected in any way just becaus,€

6 we have post-1972 information in them.

7 In other words, that information would be

8 about the same as the pre-1972 information, wouldo 9 not have any effect, obviously. are not pre­

10 pared to divide, divide it up that way, and we just.

11 took it the v;ay it v;as presented by the defendant.

12 the department, and added up the total documents.

13 and we did not anticipate this problem, but, but

14 we would like to have these received into evidence i1
15 with that same understanding, and it seems to me, ;O 16

1Your Honor, that we ought to be able, upon a demon-r

i 17 1 stration, which we can make with a little further

18 effort, that the post-1972 data, as, has not

1 influenced these figures, that we should be able

20
i

to then have the entire exhibits introduced into 1

21 evidence, but that is, I think that is a request

22 for reconsideration when we are prepared to make

23 it. j
THE COURT; Hell, Viroll the Court will admit1

1 25
i1

into evidence all of the matters pertaining, on the



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same basis that we have previously ruled, will per­
mit into evidence all of the data pertaining to 
information through 1972, will remain to identifi­
cation only as it pertains to data, 1973, 1974.

Of course, the plaintiffs will be granted 
leave to amraend any of the documents or data that 
they v;ish to submit in light of the Court's ruling, 
in light with the Court's ruling, and the informa­
tion that, that they wish to tender, and to submit, 
which is after 1972, will be submitted for purposes 
of the record, for identification.

The Court would make the further comment that 
it would be helpful to the Court on the part of 
either party that data and information, statistical 
information that might be submitted by either party, 
the Court would want, insofar as possible to have 
that data and information through and up to, and 
through the date of this particular occurrence, if 
it is the end of the physical year, 1971, for this
purpose, up to the specific date, and if any of the

I
Iother data or information after that point is deemed
i

relevant or material by this Court, or anyone else | 
in review, then it could be seen and reflected, buti
we, by ruling as we do, do not preclude the plain- ■i
tiff from resubmitting data or purported data or |



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infornation that bears v/ithin the context that the 
Court feels is apparently pertinent and material 
here .

MR. CALDVJELL: Your Honor/ I might just empha­
size for the purposes for which we are using this 
data is not to use particular instances, so we are 
not, for example, going to pick out a bad incident 
in 1972 and emphasize that.

THE COURT: I understand it.
MR. CALDW’ELL; It is just a typical analysis, 

Your Honor, with these exhibits admitted, with 
partially -- (interrupted)

THE COURT: They are partially admitted at
this time with the right of the plaintiff to resub-ii

Imit data in light of the Court's comments and ruling,
iand any part of the exhibits that are partially
j

admitted that pertains to a period after 1972, the I 

Court will disregard, if it is admitted, the Courti 
is going to disregard it and it should properly,

1!therefore, bear an identification status, and I |
Iwant to, want the record to be clear in that regard.

MR. CALDWELL: All right, sir.
I

If Your Honor please, in that exhibit. Exhibit 
18(b), bears the date of, or the information as 
between February 3, 19G9 and June 17, 1970, and j



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263

that is from -- (interrupted)
THE COURT: That should be admitted.
MR. CALDv7ELL: That comes from Exhibit, the

source of that information is Exhibit 18(a), and 
we may, we nay also have 13(a) , since it is coverixig 
pre-1972 information.

THE COURT: There being no objection, let the i
iExhibit 18(a), be introduced. I
I

MR. SHEA: If Your Honor please, of course, |
the objection that I have is what these -- thumb 
(Mr. Shea indicates he is thumbing through the 
said instrument) -- this is digesting of what |
occurred on these particular events, when somebody !

!else was struck by an officer's bullet, is not i
material. |

iTHE COURT: I understand, I understand.
Let it be admitted with the objection of the i

I
defendant's noted as to its materiality or rele-

I
vancy to, as to the issue here. |

It will be admitted, again, without attributing 
any particular materiality at this time to it. i

MR. SHEA; Thank you.
THE COURT: And noting the objection.
MR. CALDWELL: And Exhibit 19(b), Your Honor, ^

runs between May 16, '71 and February 3, '74, so *



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1 that, does include natters outside, outside.
Till: COURT; It will he narked for identifica­

tion only at this tii'vO.
MR. CALDVJELL: All right.
Exhibit 20 is a compilation of both the pre­

vious tv70 exhibits, both 18(b) and 13(b), and so 
I assume it would fall under Your Honor's ruling.

j 
jTHE COURT: And to the extent that the exhibits!I

are narked, narked for identification only, as 
stated, this is with leave to the plaintiffs to 
resubmit within the relevant or the, felt to be 
relevant period. *

MR. CALDV’ELL: Your Honor, I night point out,
comparing Exhibit 19(b), which does include some j 
post-1972 information, witli Exhibit 18(b), v;hich |
does not, which is being between '69 and '70, that'

!
18(b) shov7s that eighty-six percent of those property

I

crimes, fleeing property crimes, suspects, who were 
shot were black, and 19(b), shows between '71-74 I

iIwere, were another percentage, were eighty-seven | 
percent black.

MR. SHEA: If it please the Court, are you
quoting figures there that are included post-'72

I

information? I
i

MR. CALD//ELL: I was making a comparison that i

264



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I, what was, what I was trying to show Your Honor, 
the data, the data has not changed within the pre- 
1972 and post-1972 percentage.

MR. SHEA: But your knowledge, you are including
post-1972 inforraation, which the Court has excluded?

HR. CALDWELL: Well, I was not offering it in
evidence, trying to make that point to the Court.

THE COURT: All right, let's proceed.
MR. CALDWELL: Your Honor, we v;ould like to

call Dr. Charles Kenny to the stand at this time. |
THE COURT: All right. |



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2G6

CH/vRLES T. KENIIY,
the said witness, having been first duly sworn,
testified as follows:
DIRECT EXAMINATION 
3Y MR. CALDNELL:

Q Would you state your name, please?
A Charles T. JCenny.
U ' And what is your present occupation?
A I am psychologist.
Q And are you in private practice?
A Yes, sir, that is right.

I'm president of Criterion Development Associates, 
Inc., a consulting firm in Memphis, Tennessee, in White 
Towers.
Q And what is the name again?
A Criterion Development Associates.
Q Are you a native of Memphis, Tennessee?
A No, I 'm not.
Q How long have you been in Memphis?
A Seven years .
Q Could you, could you briefly run through your edu­
cational background, please?
A Yes, sir.

I received my bachelor degree from, and cum laude, 
from the University of Notre Dame, in 1973, and then



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26 7

went to graduate school in Clark University at 
Worchester, Masschuse tts, received iny master's degree in' 
psychology in 1966, and my PhD in psychology in 1969.
Q What particular area of the field of psychology 
have you concentrated, or area have you concentrated, 
both your academic studies, and your professional work 
in?
A Social maturity psychology and statistical analyses!.
Q And in, with regard to the social psychology area, i

I

have you engaged in research, and are you well-studied
I

in the area of attitudinal problems and anxiety, and i
I

that sort of thing? I
t

A Yes, sir. j
I have conducted a number of investigations and ;i

Istudies in the area of the attitudes and attitude changes, 
and, for the past three or four years now, I, along with

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my colleague at Memphis State, Dr. Mack Lupfer, have \ 

studies, investigated areas of the political socializa­
tion.

V7e have an ongoing research project in this area, 
and what it involved, involves in the investigation of I

j

the perception and knowledge that children have of their 
government political institutions, and politics, and 1 
this kind of thing. jI

I

Q Have you engaged in research work and studies



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268

involving racial division or racial effects of various 
attitudinal situations?
A Yes, sir, I have.

One of the major variables that v/e are interested 
in in this project is the race variable.

We have looked at differences between white and 
black children, as well as age difference and sex dif­
ference, and social economic differences.

I might add at the present time v/e focus priraarily 
on comparisons between our samples that we looked at 
prior to the Watergate incident, and that subject that 
we interviewed after the Watergate incident.

V/e have not yet analyzed the race differences.
MR. CALDWELL: If Your Honor please, if I may

mark this document as the next exhibit.
THE COURT: It may be marked for identification,
THE CLERK: Number 41 for identification.

(V/hereupon, the said instrument was 
accordingly marked Exhibit Number 41 for 
identification only.)

BY MR. CALDWELL: 1
iI

Q Mr. Shea has asked me to ask you a question about |I
whether or not your field is in behavioral attitudes ofi 
children or is it in, encompassing a broad range of age/ 
ages? !



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A

2G9

It \;oulci enconpaos a broad range of ages that the
particular research project v;a are currently involved ii)

i
involves children from the third grade to the eleventh | 
grade, but I have also conducted attitudinal research 
v;ith adults, as well.
Q Lot me show you a document I have had marked as •

j
Exhibit 41, which purports to be a, your vita, your vita.

iDoes that contain more of a complete list of your I 
education and professional experiences?
A Yes,sir, thisis. j

MR. CALDh’LLL; Your Honor, rather than go 
through this by item by item, 1 would just tender 
it into evidence, if I may.

THE COURT: Is there any objection to the
introduction of the item?

MR. SHEA: No, Your Honor.
I

THE COURT: Let Exhibit 41 be introduced.
(V7hereupon, the said exhibit previously 

marked Number 41 for identification, was 
received in evidence.)

BY MR. CALDWELL:
In your, in your field, has there been research 

done which would reflect the attitude of racial segments
of tne population toward the government in general and 
tov/ard police agencies in particular?



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270

A Yos, sir, there has. There's a number cf sub­
studies that went at these questions.
Q U’e have discussed earlier today in this case. 
Presidential ComniSvSion reports v/hich contain a policy, 
reflects that black persons tend to have more negative 
attitude toward police agencies than do white raejabers 
of the v/hite community.

Vve have also discussed the study prepared in liemphi 
'Which reflected a sirailar phenomena, that is, blacks 
tend, more than whites do, to think that the police are 
brutal or unfair, or to generally believe the police is 
hostile, more so than do the whites.

Is that the research that has been done in the
field?
A Yes, sir, it does

Q Is there an age, does age have any bearing at all?
A Yes, sir, generally.

V7hat the, the evidence points toward is that black 
and v/hite children start out in the early grades, third 
grade, and fifth grade, tending to idealize their govern 
ment in a political institution in their country, and 
sometimes around early and mid-adolescence, they tena

fI
to be a decrease in this idealization for both black and 

white children. !
ii

Concurrently with this, there is a general, general.



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271

general interpretation of the findings in the field that 
both black and white children become attached in general 
to their country, their governivent, and political insti­
tutions, and there are no substantial differences pre­
sented in the black and white children in this attach­
ment process .

However, as black and v;hite children become older 
and reach adolescence, their ideologies change, and, and 
turn toward, toward the political government, and tliey 
seen to increase in their areas, rather than, rather, 
you get that racial difference and probably in areas 
where the racial differences are larger, it is in the 
area of attitude and perception of feeling about police.

Black children, we are talking about adolescence, 
black adolescents now, black adolescents tend to mis­
trust the police. They tend to be afraid of them more 
so than white children, white adolescents, and these 
differences are not just statistical significance, they 
are quite obvious in large differences.

One study, for example -- (interrupted)
MR. SflEA: If Your Honor please, I am going

to object to this entire inquiry.
liow, I don't knov; where there is any materiali 

as to what happened to Fred Lee Berry on the nigiit 
of January the 8th, 1972, that whatever he has to

tv



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say raigiit very v. ell be irxcs res ting to listen to, 
but has nothing at all to do with this lawsuit.

he doesn't knov; v;xiether Fred Lee Berry had 
any hangup, he doesn't know Fred Lee Berry. There 
is no showing that anything that he says had, has 
anything to do with what happened that night.

THE COURT: Noting the objection which the
Court will treat as a continuing objection to the 
line of inquiry pertaining to any generalization 
or, made by the v/itness v;ith regard to v/hat generalj

I
attitudes may be in contradistinctions to what that, 
of Mr. Berry, as a particular individual, noting 
that objection, and v;ithout, at this time, making j
any ruling thereon, we'll overrule the objection |

I
to this line of inquiry made by counsel to the wit-t

ines s .
!

MR. CALDWELL; Your Honor, I should have at j 
an earlier point tendered Dr. Kenny as an expert, 
and I do at this tirae tender him as an expert wit­
ness, social-psychology and statistics.

THE COURT: May I see the vita, please.
(Vvhereupon, Exhibit 41 is passed to the 

Court.)
THE COURT: All right, sir, noting the objec-|

tion to, to the testimony of the witness, the Court



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v/ill permit the testimony and will permit, again, 
without ruling on the objections that have been 
made, permit the inquiry in the areas that have 
been indicated.

BY MR. CALDWELL:
Q vie were speaking of the racial differences in the 
perception of segments of the community toward govern­
ment institutions. There is, is there a difference j

i
between, for example, or does the research indicate |
there is a difference betv/een the v/ay the, the way black
persons might view government in general and the police-

»  j
Iagencies in particular? |

A Yes, sir. j
i

I was trying, trying to get to, to get at that and
in talking about attachment, the attachment to the poli-

Itical system and to the governmental institutions, seems 
to be approximately the same for blacks and v/hites. i

How, there may be some differences in some studies, 
and so on, but, by and large, the differences are small| 
when it comes to specific issues, specific institutions, 
or partisan candidates, such as a presidential candidate, 
then you find in instances of large racial differences,j 
and probably certainly the largest difference that is |

I

consistently found is that of blacks being less trustful,
J

less trustful of the police than whites, and I'm speaking



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now of, pri’.nari ly, black adolescents. Most of this 
researcn has been dene with children in adolescence and 
I think probably that the racial difference with respect 
to the perceptions of police stand out wore because of 
the fact that there are less differences, or no differ­
ences in terms of general attachment to the governmental 
institutions.
Q . Given those differences and given the data V'/hich 
indicates that the black coraraunity has a more hostile 
or distrustful attitude tov/ard, toward police agencies, i 
and assuming, if you \/ill, a community in which there
has been a long history of racial discrimination, j

I

including racial discrimination in a police department i
i

employment practices, and all these, and in some of the j
I
1law enforcement practices, is, what is the likelihood, j 

and I would like to direct this question to black juve­
niles as compared to white juveniles for, for example,
what is going to be the difference or is there going to i

!
be a racial difference between the way a white youth jII
might respond to a police officer's command or directiveI

Iand the way a black youth would respond to a police 
officer's comraand, or directive, given those assumptions 
as a hypothetical?

ilR. SHEA: If Your Honor please, I object to
the form of the question. He has been back and



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forth there so nany tir.'.es, and he has so luany i
assumptions in thc'it, and he has gone at ninety 
degree angles -- (interrupted)

THE COURT: vVould you read the question back,
piease .

THE REPORTER: (Reading):
"Question: Given those differences, and

given the data which indicates that the black 
has a more hostile or distrustful attitude 
toward, toward police agencies, and assuming, 
if you will, a community in v/hich there has

I

been a long history of racial discrimination, 
including racial discrimination in a police 
department employment practices, all these, | 
and in some of the law enforceraent practices , !

I

and is, what is the likelihood, and I v;ould 
like to direct this question to black juveniles 
as compared to white juveniles, for, for exara-

I(
pie, what is going to be the difference, or 
is there going to be a racial difference be- ’ 
tween the way a white youth raight respond to

I
Ia police officer's command or directive and |
I

the way a black youth v^ould respond to a police 
officer's command or directive, given those ii

f

assumptions as a hypothetical" --- and that iII
I



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v;as It.
MR. CALDWIJLL; Your Honor, I will be glad to 

try that again.
THE COURT: All right, sir.

BY MR. CALDWELL:
g Let me try the question again.

There are several assumptions in the question I am 
asking.

You say that is the information which indicates 
that tne blacks view the x^olice differently than the 
v;hites view, with a more distrustful attitude.

The second assumption is that we are inaa community 
v;here there has been a long history of racial discrimi­
nation, including the discrimination by the police 
department in both its law enforcenient practices and 
employment practices, and given those tv;o assumed facts 
for this question, can you tell me whether or not there 
will be a difference in the way a white youngster will 
respond to a police officer's directive or command, and 
the way in which a black youth would respond, or if 
there are, or is there a difference, and if so, would 
you, would you elaborate on it?

MR. SHEA: If Your Honor please, I object to
the question. I don't feel there has been any 
showing of racial discriraination, as such in the



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hiring practices of the police department. There 
is not a scintilla of proof of that, and I don't 
think it is a fair question. It is a loaded ques­
tion .

THE COURT: Well, again, noting the objection
made by the defendant, and, and allowing the ques­
tion, based on, upon any pertinent showing that 
the assumptions that are asked in there are a matter 
of proof oi* evidence, we v/ill permit the question 
to be asked, if the witness will respond.

We note the objection on the part of the defen­
dant, and that the assumptions have not been demon­
strated, and to the form of the question, but you 
may proceed.

A Okay.
Based on those assumptions, it is my judgment that 

there would be a distinct probalility that a black juve­
nile, black juveniles would more frequently disobey the 
policeman's command, based on the fact that, that black 
juveniles' perceptions are that they cannot, they can't 
necessarily trust the police. I might say that the per­
ceptions, say nothing about the validity of those per­
ceptions .
3Y MR, CALDWELL:
Q Go your answer would be different if the



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hypothetical only said assuiainy that the black coininunity 
perceives the police department/ Memphis Police 
Department/ being laoro unfamiliar than the v;hite com­
munity?
A Yes, s i r •
Q And if that v;ere the only variable in the question 
A And whether or not they're valid.
Q Based on those exceptions, your answer —  (pause)
A That is right.
Q (Continuing) -- Your answer v/ould not change?
A That is right.

MR. CALDWELL: Your Honor, I v/ould like to
mark a document as the next exhibit number.

THE COURT: Let it be marked for identifica­
tion .

THE CLERK: Will be 42 for identification onl̂ '
(Ivhereupon, the said instrument v;as

accordingly marked Exhibit L'umber 42 for
identification only.)
MR. CALDWELL: Your Honor, there are going to

be a whole bunch of objections now, maybe I can 
explain in advance, and try, try to, at least, 
minimize the amount of time taken up to deal with 
this proolera.

I am going to show the witness Exhibit 20,



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v/hich is^ which w'as the total capsule suraraary of 
the, of all of the shootinus not resultin^i in death 
betweeii '69 and '74, \/hich the Court has not 
allowed to be admitted in evidence insofar as it 
contains information beyond February, 1970, and
Exhibit 40, v;hich is arrest records from the Memphis!Police Dapartxment, from a similar tirae-period, j

wliich has been subject to the same objection.
V7e had previously asked Dr. Kenny to prepare 

statistical analyses of these charges, v;hich he 
has done, and whicli have, I have marked for identi- 
fication as Exhibit 44, too, and I have given 
opposing counsel a copy of that, so v/ith that, with 
that explanation, I understand that, that insofar 
as the exhibit does contain information going 
beyond, coming forv/ard from January 8, 1972 , the
Court's present ruling is that, that that informa­
tion is not relevant to this lawsuit, but we would ! 
like to have, I would like to get Dr. Kenny's testJ-

i
mony, based on, based on either, either that 
assumption or insofar as it v/ould be a valid testi-

imony for information up to 1972 -- j

THE COURT: You may ask him about anything j
ithat pertains to the period that the Court has j

ruled on, and that is apparently relevant. !



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MR. CALD^7RLL: Thank you. Your Honor.
Q Previously, Ilr. Arnold and I have given you two 
documents, one Exhibit 20, v/hich is a summary of shooti 
incidents bv category, and, and Exhibit 40, is an exhib 
reflecting arrest data by category of crirae and by race, 
and can you identify Exhibit 42?
A Yes, sir; yes, sir.

Exhibit 42 is a report consisting of statistical 
analysis that I prepared for this case.
Q All right, sir.

That statistical analysis compares Exhibit 20 with 
Exhibit 40, is that -- is that correct?
A Yes.
U Mow, if, let me, insofar as your statistical analy
ses are concerned, let me ask you if your statistical 
analyses would be accurate if, if we only use, if v;e 
took out, let me ask you, first, to assume that the 
information in Exhibit 20, which involves figures that 
are, have been developed since 1972, let's assume that 
those have the same racially, racial effect, effects as 
the pre-1972 exhibit.

MR. SHEA: If Your Honor please, I don't see
how he can assume, unless he, himself, sees it.

BY MR. CALD./ELL:
Q All right, sir.



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Excuse n e .
Exhibit 20, Dr. Kenny, is a compilation of Exhibits 

18(b) and 19(b).
lIo w , Exhibit 18(b) has been admitted into evidence 

and it reflects, for example, in fleeing property cate­
gory, eighty-six percent of those v/ho were fired at v;ere: 
black suspects,
A Urn-hum.
Q And Exhibit 19(b), includes information from May 
1971 to February 1974 , and shov/s that eighty-seven per­
cent of those fired at in the same category were black 
suspects,
A Um-hum.

Q Now, if those, if that is, this, if this is an
accurate reflection, I mean if the pattern is the same 
all the way through, would your statistical analyses 
be affected in any way by that?
A Probably not. I can, and I -- (interrupted)

MR. SHEA: Your Honor, I am going to object
to anything that he testifies to that is i^robably 
not. If he can say accurately, yes, it does not 
make any difference, that is well and good, but if 
there is any doubt in his mind, mind that has to 
do with these projections, I am going to object to 
it.



■---------■*—

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A (Continuing) -- Well, let me try to be absolutely 
clear on it with the period v/e are referring to, and 
what number they are then, perhaps I can be —  when is 
the cutoff point that wo, in other words, the statistic; 
that I analyzed were based on this period right -- 
(interrupted)
BY MR. CALDWELL:
Q No, they were based on both periods.
A Oh, combining, corabination of this. This is a com 
bination of these two.

How, we are putting this in a cutoff date of 1972?
Q January, 1972.
A And there are no charts for that period?
Q Well, we do have, we could pick out, pick out that 
data.
A Yes, sir.
Q And Mr. Arnold and I proposed to do that, at a sub­
sequent pcint, or perhaps v;ith your help.
A Okay.
Q Assuming we, we can demonstrate that, eliminating
the post-1972 figures, could not change the percentages 
in any meaningful way. Would your statistical analyses 
be affected in any way?
A No, they v/ouldn't be.
Q All right, sir.



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THE COURT: Well, 1 am goincj to permit him, Mr
Shea, again, noting your objection, to ask the wit­
ness, based on certain assumptions, and, of course, 
the burden v;ill be upon tne plaintiff to establish 
that those assumptions are so for any period which 
the Court has ruled as of this point, is probably 
pertinent or relevant in light of the issues that 
have been raised.

So I'm going to permit him to ask the question 
to question the witness, based upon statistical 
assumptions, then the burden v/ill be upon the plain 
tiff to establish that those assumptions are valid 
assumptions, and we note your objection, and, of 
course, the testimony will be subject to that 
standard -- (interrupted)

MR. CALDW’ELL: It may be stricken -- (inter­
rupted)

THE COURT: Standard.
MR. CALDV7ELL: I understand. Your Honor.
THE COURT; Gentlemen, Mr. Clerk, will you 

advise the parties that we are informed that the 
jury is ready to report in the other matter 
(indicating another case not pertinent to this 

case.).
THE CLERK: Yes, sir.



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BY MR. CALD'./ELL:
Q Turn to your analysis, \7hicii is narked Exhibit 4^
(42) , I think it is self-explanatory. At the top of 
the third page, am I correct that the statement which 
talks about these statistical significance with the v/or^ 
"change"? Should that be "chance"?
A Yes, sir, on change, chance, c-h-a-n-c-e.

"Difference is due to 'change'", should be "chance 
that is right.
Q Would you make that correction on the exhibit?
A (V/itness is indicating.)
Q Would you briefly describe what the exhibit -- hov;
the exhibit is prepared, and what it reveals?

A All right.
Taking the statistics that were provided, and the 

summaries given to me, I prepared a table, table one, 
v.’hich compares the number of blacks versus the total 
number of whites and blacks who were arrested and who 
were shot at, in two different categories of crimes; 
property crimes and violent crimes, and using the defi­
nition provided on the svimmary sheets from the police 
department, you can see that out of a total number of 
ninety-five police shootings, eighty-four were blacks 
and in the property crime category, cor.ipared with a 
total number of eighteen hundred (thousand) eight hundred



1

2 85

and eleven black arrests versus the total number of
) 2 black and v;hite arrests of tv/enty-six thousand. -- I
\ 3

i
said eighteen hundred, eighteen thousand eight hundred

i
1i 4 eleven versus the total number of the black and white
f
ii 5 arrests of twenty-six thousand six hundred seventy-four

j 6 (twenty-six thousand six hundred forty-four).

7 Similar breakdov/n of property for the violent

8 crimes.
o 9 Q And what does the statistical comparison of the

£
1 10 black percentage in the property crime category reflect?
}i 11 A All right, sir.

12 If you turn to table two, table two is based on

13 table one.

14 Here, I simply show the percentage of blacks who

\ 15 are arrested, and the percentage of blacks, blacks who 1
© 16 are shot at, and the two particular categories 6f crime,

i
1 17 property and violent crimes.
11 18 It states that seven zero point six percent of the

1 19 people v;hose race was knov;n to the department, who are,i
20 v/ere arrested for property crimes were black, and |1

>
21 eighty-eight point four percent of the individuals who |

1) 22 were shot at, whose race, of the total, whose race was
!k1) 23 known to the department, were black.
j 24 Q Is that a statistical significant difference? ;

25 A Yes, sir.
i



2 86

) 1 The coraparing of seventy point sixty percent and

2 eighty-eight point four percent is highly significant.

3 It is significant of what a statistician would call the

4 point zero zero one level.

5 Q VJhat does that mean?

6 A That moans there is only one chance in ten thousand

7 this result could occur simply by chance. This level
of significance is very unusual in analyzing social; Oi 9 « science and data, and in that, I guess I could say, I

1! 10 could say that a result, that this is a result that is

! highly significant chance, is about as certain a sentenc

j1 as I can make regarding the results.
)
! 13 Q That race is the obvious factor?
■

14 A Yes, sir, and my conclusion is that there is evi­
i 15 dence here that there is disparity effect of the black

o shootings of the police, again, without referring to any
17 raotivations , simply analyses of the statistical data.
18 MR. CALDWELL: Your Honor, subject to the, to
19 further demonstration that the, eliminating the
20 post-1972 figures will not change the figures upon|

' 21 which Dr. Kenny based his analyses, we would offer
22 Exhibit 42 into evidence.
23 THE COURT; All right, let it be, at this tirae
2A

■

isubject to the ricjht of cross-examination, marked j
25 for identification, tendered as, submitted into



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evidence.
(\Jhere\ipon, the said exhibit previously 

narked Number 4 2 for identification, v;as 
received in evidence, subject to cross- 
exaraination .)
THL COURT: You may proceed to cross-examine

the witness.
CROSS-EXAMINATION 
BY MR. SHEA:

Q Mr. Kenny, you say you are not from Memphis. Inhere 
are you from originally? , 
h I was born in Brooklyn, Kev; York.
Q And did you live most of your childhood there?
A No, I lived there for approximately four and one-
half years. We moved to Nev/ark suburbs, v;ell, actually 
to, further out to the suburbs, and I lived in the 
southern tier of New York state for a while, and v;hile 
I was in school I moved, lived in Nev;ark area, city, 
rather than urban.
Q Mow, in compiling the information that you had,
when did Mr. Caldwell first approach you to work up the 
data?
A Let's see. '

I believe it was, it was, it was actually Mr. j
Arnold who first talked to me about the case on last '



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Saturday morning.
U Late, last Saturday?
A Right.
Q All right, sir.

Now, what factual information did you gather to
give us these conclusions that you had? What interview: 
did you conduct, and hov/ did you arrive at your conclu­
sions ?
A Let me ask, if I may, could you break that dov^n 
for me? Are you referring to this report, this statis­
tical analysis, are you asking me about the earlier 
testimony?
U The earlier testimony.
A Are you asking if I conducted any interviev/s since
Saturday morning?
Q Yes, sir; that is right.
A Certainly not.
Q All right, sir.

IJovi;, you come up with some very concrete conclusior 
on the second page of the statistical analyses for 
Wiley versus Memphis Police Department. I don't knov/ 
what the exhibit number is, the implication of this 
find is that race has definitely been a factor in the 
police shootings in the Memphis Police Department and 
race disparity has operated in a way which, that has

is



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2 89

race and age disparity of blacks?
;\ That is right.
Q What does the statistical analyses data have to do 
with the original basis of that?
A Prior to last Saturday, you rrLean?
Q No -- Prior to last Saturday, how much time had
you spent determining what the black attitude is among 
children, among adults -- (interrupted)
A Adolescence --

If it please the Court, I would like to ask if we 
could talk separately about the statistical report and 
earlier testimony?

MR. CALDWELL: Your Honor, Mr. Shea's con­
fusing testimony reference to age, this doesn't 
have anything to do with the age, has nothing to 
do with it.

Perha^js I made a very poor presentation of 
this v.’itness, but I thought it was clear this 
exhibit was not based on opinion polls, it was 
based on, and solely, the data that Dr. Kenny said 
it was based on.

THE COURT: Of course, counsel may cross-
examine the witness in either or both areas that 
he lias testified about. Hr. Caldwell.

I think he has tried to, the witness, to make



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290

it clear that he has testified in the tv/o areas, 
and you are free to examine him in both areas.

BY MR. SHEA:
Q Now, Doctor, I'u not trying to confuse you, or any­
thing like that, v;hat I want to knov/ is what did you do 
from last Saturday morning until you prepared this docu 
ment to come to these conclusions on the statistical 
inforraation supplied to you by the police department?
A Ok ay •

The conclusions stated on the second page of my 
report is a conclusion that is drav;n from the statisti­
cal analyses. It speaks for itself, and -- (interrupted 
Q Well -- (interrupted)
A (Continuing) -- I did not interview anyone. I did 
not do any additional library research for this particu­
lar report.
Q Well, Mr. Caldwell asked you to make several 
assumptions, one of them being that the hiring policy 
of the police department, and the other one I can't 
recall.

VJhat bearing, if any, did they have on this report 
tliat you compiled?
A Point, may I point out again that we are talking 
about two separate things. As I understand it, Mr. 
Caldwell asked me a hypothetical question based on my

)



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knov/ledge as research of, in the area of the police |IIIdepartment, and in ansv;er to the hypothetical, any con- j 
elusions that I made.

Is that what you are asking me about?
Q Yes.
A Then that area is being confused with the statisti-I
cal report. j

i
Q Well, let's go back then and dwell for the moment |I
on the ansv/er that you gave including the two assumptions

i
Now, what background did you have to permit you toi 

ansv/er the question the way that you did? What research 
did you, in and of it, yourself, do that permitted you 
to make the conclusions that you did?
A Vlell, for about three to four years now, I and one 
of my companions, the eminent Dr. Mike Lupfer, we did a 
number of studies on ages, and we have presented papers 
on a find of a number of the factors pertaining to both 
the American Political Science, on the association --

I
Chicago and American Psychological Association, influences,
and as a matter of fact, as result of one of our papers',.

iIwas invited to address the American Political Science j 
Association in Chicago.

I, myself, have done some of the interviev/s in the|
iearlier era. I was intimately involved in interviewing^,
I

and training intorviev/ers , and did some of the i



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1 interviewing. I was involved in developing the inter-
2 viev/ procedure, and for a period of about tv;o and one- ji
3 half years was highly involved in research. ii!4 Q  7illright,sir. i

i
5 How, v;hen did you have the particular project where
6 you canvassed the black children to determine what the
7 adolescent's attitude was tov/ard the Ileraphis Police j
8 Department?
9 A I did not say that I, well, let me begin --
10 THE ’.vITIIESS : If it, if it please the Court,
11 Your Honor, there is a confusion here.
12 I was talking about the literature in the
13 area of political association. I -- (interrupted)
14 Q VJhat age?
15 A (Continuing) -- the literature, the published
16 literature and the conclusion of the experts in this
17 area. When Mr. Cald-well was asking me those questions
18 about the hypothetical assumptions, I was not talking
19 about research that I had personally conducted.
20 THE COURT: All right.
21 Let's interrupt with the testimony at this
22 time so v/e may receive the report of the jury that
23 is out.
“1 We will recess at this tine as far as Dr.

Kenny's testimony is concerned, at this point, so



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that we nay receive the report of the jury.
You may step down, sir.

(iVitness temporarily excused)
MR. SliEA; Should we stay in the courtroom.

Your Honor?
THE COURT; Yes, you may as v/ell go ahead and 

take your recess, and v/e'll hear from the jury, an<|I 
take a brief recess before we are ready to resume 

(Whereupon, at three p.m., the Court was 
in the afternoon recess and pursuant to the 
recess, Court reconvened at 3:30 p.m., and 
the following proceedings were had.)
THE COURT: All right, gentlemen.
MR. SHEA; If Your Honor please, for the 

record, I might make this statement. I haven't 
had Mayor Chandler over here, I have him on standby 
to come over, could Your Honor tell us what the 
time schedule v/ill be for the afternoon?

THE COURT: Well, I plan to go to approximately
a quarter of five, or five, depending upon what 
the circumstances may be.

MR. SHEA; All right, sir.
THE COURT: based upon the course of the case;

at this point, it appears to me, obviously that ■ 
you gentlemen are going to take some substantial |



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additional tins with regard to presenting this case 
I don't know how much additional time, but 

we'll try to, to go until ar>proximately five.
We are, we are scheduled rather fully for 

tomorrow on motions, and other matters that have 
been set for some time, so v;e'll go as long as we 
feasibly can and we'll just have to go on over -- 
though we have criminal cases set for Monday -- to 
go on and let them await the disposition of, hoped 
for a disposition of this case.

MR. SHEA; Perhaps we can -- (indicating to 
Mr. Caldv/ell in a conference).

MR. CALDWELL: That means we won't work on
this case tomorrov;. Your Honor?

THE COURT: I have a, a pretrial and notions
scheduled tomorrow morning, and I have four motions 
scheduled for tomorrow afternoon. I may inquire 
to see v;hcther the -- the only thing v:e could do 
v/ould be to try to v,’ork in sornetirae and perhaps !
get as much as an hour or two hours in this case ;

1between v^hat we have scheduled tomorrov;, but there i
is no chance that v;e'll have any more than an houri

Ior two hours for this case, in light of other |
motions and matters we have scheduled for tomorrow^ 

So, depending on what your situation is, and i



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1 what can bo presented. It is possible that we 
could get in something for an hour, or tv;o hours 
on toinorrov/.

MR. SHEA; That v/ould be toward lunchtime 
rather than -- (interrupted)

THE COURT; Toward lunchtime, would be probabjjy 
approximately eleven o'clock, or, or thereabouts 
on to perhaps whatever, a quarter of one, or there­
abouts .

MR. SHEA; Perhaps we won't -- (interrupted)
MR. CALD'WELL; Then we will work on Monday in 

this case?
THE COURT; We'll proceed on Monday.
MR. CALDWELL; All right.
THE COURT: All right, Mr. Clerk, wq have a

jury coming in on Monday morning, do we not?
THE CLERK; Yes, sir, in the case.
THE COURT: Well, we'll, we may proceed to

select our jury and then proceed in this case on 
Monday morning, more likely, more likely around 
ten though, and proceed, if we, as it is now evi­
dent, if we don't finish this case.

All right, -- if we don't finish this case 
today or tomorro;/, perhaps we could on Monday.

MR. SHE7v; All right, sir.



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196

{VJhorupon, Witness Kenny returns to the j
witness stand and resumes liis cross-examination 
as f ollov;s .)

BY MR. SHEA:
Q All right, Dr. Kenny, that, when v;e stopped this 
morning, your conversation, your interrogation, when 
you were interrupted, it had to do v/ith just what, just 
V7hat input you had in making these sv/eeping conclusions 
about certain matters pertaining to race in the city of 
Memphis, and I say, I think you mentioned that you had 
reference to some literature that you had read.

IWould you mind telling me v/hat that was that you 
were -- (interrupted)
A Ok ay .

Let me ask now, are you asking me about my answer 
to the hypothetical question? 
y Y e s , s i r .
A Yes, sir.

Okay.
There is an article by David Sears, which is in a 

prepublication form, that has been accepted for a new 
handbook that is coming out, and because I'm actively 
involved in research in this field, I had, have a copy, 
had a copy of that v;hen this came to my attention.
Q Who is he?



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1 h David Sears.
Q Yes , sir, who i
A Ke is a social
four or five especially renov;n, researchers in the 
field of socialization.
Q All right, sir.

And you say this is a prepublication?
A Yes, sir, it is in substantially the same form that, 
it will appear in print. I have access to it, because 
of the fact that I'm involved in research in this ax'ea. 
This is a common way that researchers circulate these 
materials before it gets into print. There is usually 
a tv;o or three publications .
Q 1 see.

Is there a particular chapter devoted to the situa­
tion in the city of iMenphis?
A No, it is not. The literature that I w’as dis­
cussing is based on approximately, between ten or eleverl

!
publication that have included information about racial |

i
differences with respect to attitudes, feelings and |
perceptions of the police conduct throughout the United! 
States.
Q Uh-huh.

And you have read those over a period of years, or 
just recently, or what, when?



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1 A I had road some of the articles over a period of 
years, and since Saturday went and got a number of them 
that I had not seen before in their original form, v/heri 
I had read, at one time, and wanted to brush up on and 
reread then.
Q I believe you said you had lived in Memphis for 
how long now?
A Seven years.
Q Seven years?
A Yes, sir.
Q And the -- but you have not made any independent
investigation in the black community, yourself, on 
police attitude?
A In a way we iiave. Much of our research involves 
racial differences, research projects that I mentioned 
involved racial differences, as well as age and sex 
differences.
Q Well -- (interrupted)
A However, -- (interrupted)
Q Go ahead and, and continue.
A (Continuing) -- Vie have looked at racial differences 
among our subjects before and after Watergate. We com­
pared some of the charactei'istics of black children and | 
white children's perceptions and feelings prior to |
Watergate versus the same kind of thing after ’Watergate J



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1 but we don't have, as yet, the results from the questior 
in our interviev/ procedure that had to do v;ith police.
So I can't tell you, based on my ov;n personal research,
I cannot tell you precisely what black children and 
black adults are, as to the police in Memphis.
Q ’.Jell, you keep mentioning Watergate. Of course, 
that is a v;ay of life, and has been a way of life for 
several years in our nation, but what does that have to 
do with black attitudes toward police?
A Watergate, in and of itself, does not necessarily 
have anything to do with black's attitude.
Q All right, admittedly, but why do you keep men­
tioning that research in that area, if it has nothing tC' 
do with the black attitude toward the police?
A Only because, in our interview schedule, we asked 
children a number of questions about the attitude and 
perception of the police. We have not yet received the 
results from those questions.
Q So, really, you have no hard data that you can 
offer to us today because you haven't correlated that?
A May I continue?
Q Yes.
A There is no hard data I can offer from Memphis
Police.
Q From the Memphis Police Dep>artment?



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A Right.
Q V7ell, v;hat is the attitude of blacks in Los Angele^^, 
toward the police department?

MR. CALDKELL; Your Honor, I object to the 
relevancy of that question.

The witness testified about the research 
generally, and we, v/e have not engaged in compari­
son of individual cities \/ith Memphis, or Memphis 
with individual cities. We are talking about a 
general phenomena that is docuraented in the researc|:h
data and I don't think it is required.»

THE COURT: Mr. Caldwell, he may cross-examine
So far as the Court has heard, you have made 

reference to, to two, the President's Commission 
and one other document, an unpublished article by 
Mr. Sears. I don't know of any other matters that 
we are making reference to, and he may cross- 
examine as to where, where the other data relating 
to it is, if it is countywide, countrywide, if it |

j
is in the South, if it is in the north, v/hat it is 
there that they based, that he based his testintony ' 

on.
MR. CALDvlELL; I understand.
THE COURT: I will sustain your objection to

the question of Los Angeles, but I'll not susta.-.u



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your objection to the cross-examination as to the 
basis of the i/itness’ testimony.

MR. CALD'JELL; I don't object to the cross- 
examination of basis of the testimony.

THE COURT; All right, sir.
BY MR. SHEA:
Q All right.

You have heard the statement raade by the Judge.
Why, what is the basis for the conclusions that you 
drew, the implications of this finding, that is race 
has definitely been a factor in the police shootings in 
the Memphis Police Department, and that the race factor 
has operated in a way that has a disparate effect on 
the blacks.

Now, what is the basis for that conclusion?
ITHE WITNESS: Your Honor, may I ask for, once j

again, a distinction to be made between two -- 
(interrupted)

THE COURT: Mr. Shea, as the Court understands!
what the witness has testified, as the Court under-}

j
stands his testimony, that the basis for his con­
clusions that you have just referred to, is his 
statistical analyses based upon the number, the 
proportions of black arrests on proi^erty crimes 
and the proportion of blacks that have been shot



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at in relation to property situations.
The disparate proportion was seventy point 

six percent, is highly significant, and that is th^ 
basis on which he has made that analyses.

Now, the Court understands, and I presume tha-(: 
the witness understood that your other questions 
were relating to his response to the question put [ 
by Hr. Caldv/ell v/ith regard to blacks were more 
hostile than whites to police in Memphis.

BY MR. SHEA;

Q All right, sir.

Then, we'll direct it to that segment then, of 
your testimony, the part about the hostility of the 
blacks toward the police department.

Now, what was the basis for your conclusions?
A Okay.
Q In the city of Memphis.
A I have knowledge from reading the literature in
this field, that some ten to eleven articles, papers, 
conversations on a single conclusion, which is that 
among black adolescents, there is less trust of police, 
policemen, and so, on that, and among v/hite adolescents 
there is a consistent finding there are not, there are 
no contradictory other findings in the literature.
Q All right, sir.



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1 Nov/, who are the authors of those articles and 
topics, whatever you are referring to. 
li Oh, several of them.

Kodgers, Lawrence, -- (interrupted)
Q Rodgers, what is his name?
A I don't know his first name offhand.
Q What did he write?
A He wrote an article on racial differences and
racial differences in political socialization.
Q From where did that article appear, and v/hen?
A I don't have the reference here in front of me.
Q Well, have you read it recently? Does it appear i
in some publication? j}

I

A Let me see. The Midwest Political Science Journal, 
1971.
Q Nineteen seventy-one.

And you read it in 1971?
A No, I read it some two years ago. ;

i

Q All right, sir. i
Just what exactly did it say, state, and what v/as | 

his statistical information?
A In this particular article which dealt v/ith a nuir.- |

!
ber of questions and variables, there was a section on 
racial differences and attitude toward the police, and | 
if my memory serves me correctly, which I think it does;



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304

some sixty percent of the v;hite sanpla reported that they 
trusted the police. Some twenty-four percent of the 
black sample reported that they trusted the police.
There is a difference betv/een the two.

The percentage is highly significant, and quite 
meaningful.

The pattern of research finding in the other 
articles is consistent with that.
Q Well, the sixty percent of the twenty-four percent, 
who said they did not, where did that information come 
from? Was the canvassing, was it from canvassing, was 
it taken in Princeton, what location was it, was it in 
the north, South, East and West, or do you know?
A I think it was a survey done using questionnaires 
with children and adolescents in Sacramento, California, 
school systems.
Q Sacramento, California?
A Right.
Q And, and do you know what the black ratio is to, 
in Sacramento, California?
A No, I do not.
Q Do you know what the children population is in 
Sacramento, California?
A No, I don't .
Q Do you know what the adolescent population is in



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305

Sacramento, California?
A No, I don't.
Q So the only thing you know that you read an article 
that v/as published in 1971, that said that twenty-four 
percent of the blacks in the Sacramento, California, 
school system did not trust the police officers, and 
you say that is a basis for determining, and what else 
have you read that you can recall?
A I have read an article, written by Jean Lawrence, 
in Sherill, Arkansas.
Q Jean Lav^rence , L-a-w-r-a-n-c-e?
A It is, L-a-u-a~r-a-n-c-e, I believe.
Q And when and where did that article appear?

i
A I'm not certain, I will have,to, it might have -- |
no, I don't have it here. These are articles that have i 
appeared in journals such as the Social Science Reports, 
and Publications. I can't give you the exact reference. 
Q You can't?
A N o , s i r .
Q Now, what does Miss Lawrence's article have to do 

with it?
A The same sort of question as posed to children 
and adolescents, questions about trusting, trusting —  

(interrupted)
Q  I b e g  your pardon?



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A Questions about trusting, and in this particular 
article, as I recall, the difference, the percentage of 
difference was something like seventy-five percent of 
the x̂7hite3 reported they trusted the police and somethir 
like forty-five percentage of the blacks reported that 
they didn't .

Q Seventy-five and forty-five percent?
A Yes, sir, something like that.
Q I see .

What, v;hat, where, where v/as that sampling taken?
A I believe, I believe it was in, I believe that was

»
done in Fresno, California, but I'm not sure.
Q Fresno.

Did you know what the population of the blacks are j 
in Fresno, California, to the whites?
A No .
Q Do you know the children's ages?

THE WITNESS; May it please the Court, may I 
ask, I'm not personally knowledgeable of the rele­
vancy of some of these questions. It may not be 
my place to ask that.

THE COURT; Well, unless counsel objects on
N.some basis, if you know, you may respond. Of 

course, if you don't knov;, then it would be, it 
would not be your part to respond, but it would be



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1 the role of counsel on either side with regard to 
examination and cross-exaraination, to make any 
objections with regard to anything.

BY MR. SHEA:
Q Well, I think, Mr. Kenny, --

MR. SHEA: I might try and tell him v/hat my
function is.

Q (Continuing) -- I am the one who asks the questiond, 
and I expect you to answer my question, and if you have 
any explanation that you want to give to it, then you 
give it to me, certainly, that is expected of you too.

t
I don't think -- are you trying to limit the way that |

II ask questions? i

A I think some of the questions are unfair. j
I
IMR. CALDWELL; I think he should not engage | 

in argument v/ith the witness. The witness has not 
testified in this court prior to today, and -- 
(interrupted)

THE COURT; All right, sir.
You may proceed.

BY MR. SHEA;
Q All right.

Now, we have got another article that you read 
some time back that had to do with Fresno, California?
A Yes, sir.



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1 iihat, what ia the next article that you used for 
basis for some of your* conclusions there?
A There is a series of three articles published by 
Greenberg/ in journals such as published, published 
quarterly, and I believe social science journals, and 
in these articles Greenberg shows that the black and 
white children in adolescence, drop from approximately 
seventy percent, eighty percent, support and trust and 
have confidence in the police to lower levels such as 
forty and thirty percent as they move from, say the 
third grade to the eleventh grade, in other words, the 
idealization process that I talked about earlier, I, 
idealization described, describes in ages, and this is 
true in whites and blacks, but despite the fact it is 
true for both white and blacks, blacks still wind up 
with lower level of trust and confidence, and lower 
level in their trust of the police than the whites do.

All right, sir.
A And at the ages, it says sixteen, seventeen and 
eighteen.
Q All right, sir.

Now, what the attitude of the adolescents and the 
children that you have talked about, do you have any 
statistical information that shows what percentages, 
what percentage of the parents have taught their



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children disobedience to the authorities?
A Could you rephrase the question?
Q Yes, sir.

MR, CALDWELL; We would object to that.
BY MR. SHEA;
Q You have been av;are, you are aware of the fact |
that during the late fifties and early sixties there j

were civil disobedience, and it v;as advocated by certain 
segments of the society; right?
A Right, yes.
Q Now, is there any significance, or can you say thatr
there is any data that can be supplied that the parents| 
who were teaching their children to disobey law officers, 
would have any bearing on the fact that children, 
adolescents, who are black, can't, don't respect, or 
obey police officers?

A To my knowledge, there haven't been any research 
done on precisely that question. There is research on 
what is called the political socialization agencies, 
that is where the teacher, a person, mother, father, 
and so on, have the most influence and whether there 
are.racial differences in this area, but as far as the 
obedience factor, that you mentioned, and specifically 
obeying the i^olice is concerned, I'm not aware of any 
specifically, relevant research.



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Q i-iut you are saying that though, that the parents' 
attitude toward the police or authority v;ould have 
some bearing on ho'./ the child, the child's attitude 
toward the police, or authorities?
A Yes, sir, it would have some bearing, that is 
right.
Q So then it is not the police department, itself,
that is generating this fear or distrust, but it is the 
parents of these children, and adolescents, who are 
engaged, engaging their children with this disrespect 
and distrust?
A I see what you are saying, and, and I understand 
the question or the point. I think I said before thoughi, 
that the important thing is that fifteen and sixteen 
and seventeen year olds have certain perceptions, 
feelings, and attitudes, whether or not they are based 
in concrete reality or whether or not they are justified! 
is not really either an issue that can be easily ;j

iresearched, nor is it necessarily all of that relevant 
to what I'm saying. The important thing is how they
feel about the police and whether or not they are justi-

I
fied in feeling that way. I

Q But this has to be, there has to be some reason for
their attitude and that should, to me, be a logical v/ay .

I

that you would, in compiling your data, would come to ,



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311 I

the conclusions, conclusion that there is this distrust;

A Well, no.
Q Vlell, moving along then, does attitude predict

behavior?
A Not with any perfect relationship, in lay, by any 

means, really.
Q It is not, it really doesn't have anything to do 

with it, does it?
A I did not say that. I said there is not affect, 

perfect relation.

Q Well, what do you mean by "perfect relation?"
A Well, in behavioral and social maturity, sciences, 
we measure the degree to which one thing can predict 
another, to what is called the correlation, coefficienti 
and that can be expressed in the degree in a percentage, 
figure of to, you know, vdiether or not you can predict 
fifty percent of the time and/or seventy-five percent 
of the time, or twenty-five percent of the time.
U Well, the position, proposition that you are 
announcing now, is that the accepted one in your field?^
A I think so.
Q That attitude does not predict behavior?
A Not, not attitude, attitudes do not always predict 
behavior, and there is not a perfect relationship between 
the two, I wouldn’t say that you certainly can't say

I



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that attitude was not predictable.
Q Wo. VJell, to what extent does attitude, does the 
person's attitude have in his behavior pattern?

A V^ell, would vary, depending on the individual and 
depending on the behavior that we are talking about,
depending on the attitude that v;e are talking about.
Q Now, getting to that, you are not, so v;e are not 
coraparing apples and oranges, again. I'm now referring 
to this 
A Okay.
Q (Continuing) -- exhibit, not exhibit, this, this
statistical analyses and, as I understand your testimony, 
as I understand that, these figures that you have on 
page, table one, -- (interrupted)
A Yes , sir.
Q (Continuing) -- took into consideration a period
of time including 1974?
A That is right.
Q All right, sir. I

Can you carve out for me 1972, January, v;ell, just,
ii
1we'll say, carve out for me '73 and '74?
I

A I can't do it, based on the information I have in j 
front of me. We can do it easily enough in the next 
few days, but it can't be done now. I would have to | 
have the original data that wont into the summary sheet



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313

here that the Memphis Police Departraent has supplied.
Q All right, sir.

I10V7, you showed on table one, property crimes, 
blacks eighteen thousand eight hundred eleven?
A Yes, si r .
Q And now that came to you from statistical informa­
tion supplied to you by the police departraent; is that 
right?
A Yes .
Q And it shovrs a total of arrests for property crimet 
of twenty-six thousand six hundred and forty-four?
A Right.
Q So there’s some eight thousand whites, or non­
blacks, we'll put it that way, who coromitted property 
criraes, is that correct?
A Yes, sir.

MR. CALDWELL; Your Honor, just for the recor4 , 
I would like to object to the comment about the 
arrests that, the arrest data there.

MR. SHEA; Excuse me, who were arrested for 
property crimes, and charged with property crimes 

MR, CALDWELL; For your inforraation, all it 
says, arrests by race and age.

Mr . SHEA: Well, the way you have it broken
down here says: "property crime, eighteen



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t.-',. 2 rind eight hundred eleven." Above that is the 
cc 1 ..Tin: "arrests . "

MR. CALD.7ELL; Right. That is exactly what 
yc..' data reflects.

MR. SilEA; V/ell, for the purpose of this cros 
cxcT.ination, can I refer to these as eighteen 
the J2and eight hundred eleven property criiaes 
arrests?

HR. CALDvlELL I think that is correct.
HR. SHEA; All right, sir.

And the total was twenty-six thousand six hundred
forty-four.

I
Hov/, out of eighteen thousand eight hundred eleven,j

ithere v/cre eighty-four blacks v;ho were shot at, is that i 
correct?
A That is right.
Q All right.

And out of eight thousand two hundred others, 
eleven v/cre shot at?
A Yes .
Q All right.

What is the ratio of, of eleven to eighty-two 
hundred?
A I don't know, I would have to calculate it.
Q All right, sir.



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Tllii COURT: Point tv70 percent, Hr. Shea, and
eleven and one-half j^ercent, or thereabouts.

MR. SI/LA: Yes, sir.
Tllb COURT: Eleven, could you, for my benefit

give me the figure that you just read?
BY MR. SHEA:
Q nineteen, well, the diffoarence betv/een eighteen 
thousand eight hundred eleven and tv/enty-six thousand 
six hundred forty-four is what?
A Seven thousand eight hundred thirty-three.
Q So more than tv/ice as many blacks committed crimes 
than non-black3 ?
A I believe we are dealing with arrests.

MR. CALDVJELL: Your Honor, I object.
BY MR. SHEA;
Q All right, sir.

Twice as many people v/ere arrested for property 
crimes, twice as many blacks were arrested for property 
crimes as compared to non-blacks?
A Yes, sir, at least twice as many, right.
Q All right.

Hov7, v/ouldn't you agree that if somebody got shot 
at, if there were twice as raanv blacks, that the per-

I

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centage of blacks shot, that the percentage, number of 
shootings, incidents involving blacks, v/ould be greater i



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than there would involving eight thousand tv;o hundred 
people?

vve are tall:ing about seven thousand eight hundred.
Q Seven thousand eight hundred what?
A Seven thousand eight hundred thirty-three.
Q vfno are not, non-blacks?
A In ansv/er to your question, yes, sir, you would 
expect more blacks to be shot at.
Q Tlien what is the significance of that first figure 
that you have there?
A The significance of which figure?
Q Eighty-four police figures, blacks, eighty-four, 
total ninety-five?
A Well, when you do a comparison betv/een the percen-

i
tage of the blacks v/ho v/ere shot at and percentage of |!blacks v/ho v/ere arrested, you find the percentaae of !

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blacks that, who were shot at v/as greater than the per- | 
centage of blacks that \/ere arrested. It is bigger, 
greater, and therefore, it tends to indicate that race 
is a factor in the pattern of police shootings.

Well, if there are twice as many incidents, wouldn't
r’ o u  expect there to be raore shootings? 
h Yes, sir, and there were differentially more 
fshootings of blacks.

but hov/ do you figure that pattern based on that.



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on tnat?
A By doing statistical tests, if you turn to tabic 
tv;o, it is quite clear, I believe.
Q All right, sir.

V7e arc talking about the table tv/o?
A Based on pure e.xpecta tion, if race had nothing to 
do v/ith v;hat v/as going on, the figure next to the three 
asterisks should be seventy point six percent, if race 
had absolutely nothing to do.
0 But you have -- all right, that there were impor­
tant -- I see what your point is, proportionally the 
two figures should be closer together?
A Right, just like the other tv/o are close together.
Q But you don't know v/hether the sarae type people
were involved, whether the blacks who v/ere committing 
the crimes were more violent prone than the whites who 
v/ere coraraitting the crimes, do you?

Is there any way you could determine that in your, 
from your cogitation?
A From, not from the data that I have been given.
Q So these, these figures are not really accurate at
the moment?
A No, I disagree with that.
0 Nell, it is your right to disagree with me, but 
you come here as an expert and held yourself out as an



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Gxpcrt, and now you admit tliat perhaps you did not have 
all of the variiihles that you should have to come to a 
proper conclusion.

Now, are you saying that v/hat you had to work v/ith, 
which appears to be now inadequate, that the conclusions 
that you have reached are correct, but if you had had 
more variables to figure into it, your figures would be 
different?
A There's several questions wrapped up into one. I 
wonder if you would -- (interrupted)
Q Well, my question -- (interrupted)
A Back up and give me one at a time, please, 
v! Then, -- (interrupted)

Then it might be easier to figure.
MR. CALDWELL: (Standing)
THE COURT: Just a minute.
MR. CALDWELL: The Court has previously indi­

cated that statements from counsel are not taken 
as evidence.

THE COURT: That is correct.
MR. CALDWELL: I think that is a very self-

serving statement prior to getting the question 
there that he finally got around to asking. I 
would not address tnose questions -- (interruptea) 

THE COURT: The same taing applies as I said



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X^reviously, Hr. Caldv/ell, well, v;hat counsel statei 
the Court does not take as proof nor evidencq, nor 
do I tak.o what they state in the form of questions 
as being proof or evidence on either side.

MR. SHEA: Yes, sir.
A (Continuing) -- May I, could you restate the ques­
tion again for me?
3Y-MR. SHEA:
Q V/ell, I, well, I don't really think it is important!.. 
Dr. Kenny, thank you very much.

THE COURT: Anything further?
MR. CALDWELL: No further questions. Your

Honor.
THE COURT: Dr. Kenny, in the figures you hav4

analyzed, do you know from the figures on the 
arrests how many of whites or how raany of blacks 
were fleeing from the police, or resisting arrest?

THE WITNESS: Let me check the definition of
the category here.

MR. CALDV7ELL: Your Honor, if I understand
the question, it is on the arrest data, it is, it 
says there, it says that, does it indicate?

THE COURT: Yes, sir.
MR. CALDWELL: I don't think, the doctor

knows that, but the answer is "No". We do have



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the arrest statistics provided by the uepartnent.
THE WITNESS: It indicates that they are un­

armed, yes.
MR. ARNOLD: The term; '‘unarmed" was their

term, is what I v/as checking.
THE COURT; Nell, I say, I say the informatioiji 

then as has been stated, v;e don't know hov/ many of 
those arrests were involved in person v̂ ho were 
fleeing and/or resisting arrests, whether white or 
black?

THE VJITNESS: Ura-hum.
I do not, that is correct.
THE COURT: All right, sir.
Anything further?
MR. CALDWELL; Nothing further. Your Honor.
MR. SHEA: Nothing further.
THE COURT: You may step dov/n.
THE WITNESS: Thank you. j

(Vlitness excused) j
I

THE COURT: All right, Mr. Lux, v;ould you corae
around.



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ililTlRY II. LUX,
the said v;itness, having been previously sworn, returnees 
to the witness stand and resumed his testimony as 
f ollov/3 :
DIRECT bXAMlNATIOn 
BY MR. CALD.JtLL (Continuing) :

Q Chief, I apologize for the interruption.
Let me see if I can move some of these things out 

of your \;ay .
Chief, a coui:>le of brief matters, and I'll try to 

conclude.
In your deposition you agreed that there is more 

hostility in the black community than the white communit|y 
toward the Memphis police?
A Yes, sir, based on the complaints that we received, 
yes , sir.
Q All right, sir.

Back in February, there was an article in the paper 
containing a rather extensive interviev/ v/ith you and 
one of the points you made in that interview, and I !

I

would like to ask you if it is correct, is that being a i 
policeman in terms of occupational danger is less dan­
gerous than being a farmer or miner, or transport worker? 
A That was based, based on the statistics compiled !

i

by the United States Center Bureau, per hundred thousand*



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322

that v;ore workin-j in that particular endeavor, as I 
recall, there was sene thirty-tv;o police officers killec 
per hundred thousand.

In the non-police service, there were some forty- 
two thouscind killed per hundred thousand.
U All right, sir.

The figure you quoted in the article in effect, 
thirty-two policemen out of cacli one hundred thousand 
are killed in the line of duty. Miners, were ninety- 
three, transport workers, forty-four, and farmers, 
fifty-five. That means that even farming is more dan­
gerous than being a policeman; does that sound like a 
correct quote?
A Yes, sir, yes, sir, it does, it sounds like an 
accurate quote, but let me put, put in context now, 
because the context of the conversation that resulted 
in this v;as a philosophical discussion with a news 
reporter in regard to the qualifications of a police 
officer, intellectual versus physical, and I was making 
a point that tlie intellectual decision that a x^olice 
officer is required to make far outweighs the physical 
involvement that he is involved in, a very small percen 
tage of his job is actually physical involvement, so 
that in that context, it is correct.
Q Do you mean in a very small percentage of a



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323

policeraan's job is pliysical?
A Physical.
U It is actually not law enforcement?
A It requires physical activities ns versus intellec­
tual decisions. In other v/ords, obviously the majority 
of the police, people the police arrest, and don't 
resist, and there is no physical involvement whatsoever, 
v/hatsoever, but he did have to raake a decision that, 
that human being's behavior correlated v/ith the law and 
he violated the law, and he decided to make an arrest, 
and v;e were talking in terms of the qualifications that 
police agencies requii'e, physical versus intellectual, 
and, and in this vein, I was not -- obviously, police 
officers' duties are dangerous at times, but, there is 
a small percentage of his activities is physical.
Q You were also making a point in the article that 
police officers are engaged in large percentage of theii 
tim.e devoted to lots of activities which you would like 
to call non-police activities?
A That is correct.
Q Pardon?
A Correct. All of the incoming phone calls for one 
year were averaged, able to relate to any sort of those 
phone calls of police versus to any kind of criir.inal 
activities, and there are other kinds of circumstances.



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1 reseai'cli, then I think invol\'enont v/as eiohty, nor.iethiiu. 
else, twenty percent linkec to crirse and eitjhty percent 
3oiiietiling else.
Q You also, in terms of hew we defeat crime, made, 
you also made a point in the article, and let me see if 
I have accurately interpreted that, is the evidence to 
date indicates that more ;nanpov/er and more money alone 
would not have effect on the crime rate?
A There is no evidence to show that it will at all, 
none v;hatsoevcr. I based that on one bit of research 
that I did in regard to the Memphis Police Department.
From 1960 to 1970 , the iiolice budget increased three 
hundred sixty percent and crime increased one hundred 
eighty percent in the process, and similar figures that 
are available around the country.
^ But logically you v/ould expect that it would, 
wouldn’t you?
A v<ell, I think logically it seems somewhat reasonable, 
and if you could, economically could afford enough offi­
cers, then I think you could. But to give you aii exam­
ple, Washington has a police departraent percentage of 
five -- six point five per thousand population. To 
have six point five, I mean, in Memphis, would require 
a police budget of over, something over a million dol­
lars. Six point five, I mean, has not stopped crime ini



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Washington, D.C. I think i£ you afford to, at some point
!

of time, get enough officers to have an effect on it, 
but you're talking about an astronomical figure.
Q In Washington, this shov; of police power is pro­
vided for attacks and that sort of thing, as that i; 
seat of governraent?
A IIo, sir, the raain tenance, not talking about, I ' ra
talking about the work, police, whether it is employed |

1
to keep the peace there, numerous other things, but this

i
)!is a metropolitan.

Q Does Washington's crime decrease, does the Metro 
police department, does tlie evidence tend to indicate 
that, the fact that they have almost three times the  ̂

number of officers per one hundred thousand of population, 
does that indicate that?
A Well, I think Memphis has somewhere in the neighbor­
hood of one point nine or two, and Washington has six 
point five. i

I
)
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Q Crime, I mean the percentage of crime in Washington? 
A Is still going up, still increasing, increased this

, iyear, in '74, I don't know the primary figure. j
Q So the manpower alone does not have -- (interrupted)
A Ho, I don't think you can economically afford to
hire -- I never have, I don't know v/here it would arrive, 
what figure. j



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1 u w'ould, v/ouid you say, would you need one hundred 
tnousand policcLien in lAcxr.phls, perhaps, to defend, to 
be able to watch everybody?
A It would be an astrcnonical figure.
0 Chief, right before v;e took the lunch break, we ha4i 
discussed the policies which Mr. Krelstein had had 
developed, and you did not veto those while you were 
still chief of police.

Are you farailiar v;ith the FBI's firearins policy?
A It has been explained to me by agents of tiie FBI.
1 have never read it, but I would be glad to relate 
that if it is helpful.
Q Yes, sir.
A V/ell, the FBI only shoots in self-defense, and I 
think that needs to be expanded a little bit.

The FBI is an investigative agency, and not, is 
not a police agency, and since it is not involved as 
police agencies is, the majority of their activity is 
long after the fact that a crime has been committed.

i
A uniform officer, many times, becomes a part of !i

the fact, as he is in this case, he arrives on the scen4 
while the alleged crime is happening, was in progress, j 

and he becomes a part of it too. So there is a great i 
difference in the investigative agency and police agency 
t! All right, sir.



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327

The FBI policy, you understand, then, is that fire­
arms can only be used in self-defense, and only to 
secure the life of others?
A Right.
Q But the FBI, do, I mean, they are engaged in 
attempting to apprehend dangerous criminals?
A Yes, sir, but the majority of that is after \;arranits 
have been issued, and very careful planning, and all 
escape routes are cut off, they don't have the same kint 
of involvement as that an unfortunate police officer has 
at all.
Q Well, do you understand that the FBI does not 
authorize its agents to shoot even a knowing suspect on 
the ten most wanted list if he is about to escape?
A That is my understanding, correct.
0 Are you familiar with the Knoxville, Knoxville,
Tennessee police?
A No, I'm not.

Q How about the Kansas City police?
A Ho.
Q Have you seen a study of deadly force conducted 
by the Boston Police Department, which was recommending 
options in the departr.icnt of police?
A I did not.
Q All right, sir.



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32 3

I \ron't wast£} any time asking you about them.
HR, CALDb’llLL: Your Honor, I think that is all
Let me check v?ith Hr. Arnold.
Your Honor, that is all I have.
THE COURT: Hr. Shea, you nay examine the wit

ness now, if you v/ish, or you may reserve your 
examination to present as part of your defendant's 
case .

MR. SHEA: Your Honor, I would like to go
ahead at this time with Chief Lux.

MR. CALDV7ELL: Your Honor, may I raove the
admission of some exhibits before you continue 
(indicating to Mr. Shea)?

Well, I can wait until after he finishes. It 
v;on' t matter, I don't think.

MR. SHEA; You can go ahead and do it now.
I'm going to object to any relevancy on their part, 
of all of them, the Boston report and Knoxville.

MR. CALDWELL: We discussed a number of exhi­
bits v/ith the chief, and I would like to move the 
admission into evidence of Exhibit 11, which is a 
manual of rules and regulations.

MR. SHEA: I have no objection to that.
MR. CALDVJELL: Exhibit 13 is , the v/arning shot

order issued July 7, 1969.



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.29

Exhibit 12 is a section iron the operations 
and procedure Manual.

And Exhibit 38 is the inservice training 
bulletin prepared by Chief Lux and Director 
Ho Honan .

MR. SHEA: 7vll right, I have no objection to
th a t.

THE COURT: Let them be introduced.
(Whereupon, the said exhibits previously

narked Exhibit Numbers 11, 13, 12, and 30 for
identification, were received in evidence.)

MR. C7\LD'./LLL: I would also like to introduce
Exhibit 22, which is the study prepared of the 
survey of attitudes toward police in residents of 
Meiaphis, Tennessee, v/hich was prepared at, by 
Di:. Vidulich, at Memphis Htate, and others.

MR. SHEA: I object to the mention of that.
Your Honor.

THE COURT: Mr. Caldwell, will you tell me,
is this the study that the 'Witness Kenny testified 
about?

MR. CALD'WELL; Yes, sir, I'm sorry. Your 
Honor, Chief Lux had received this in connection 
with Director Hollonan, when he was still acting 
chief, and he had referred to it and furnished it



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to us after .his deposition, in which I think he, 
he, this v/as the only thing he V7as aware of as to 
racial attitudes in Memphis, tlie only documenta tio^..

MR. ARl.'OLD; Can you answer, and the question 
was it done by Dr. Kenny --

THE COURT: What is, and I ask, was there,
v/as this referred to by Dr. Kenny?

MR, CALDWELL: It wasn't,
THE COURT: I wanted to be sure.
MR. CALD'WELL; No. Chief Lux and I discussed 

this before lunch.
THE COURT: All right.
Mr. Shea, v/hat is your basis of the objection'? 
HR. SHEA: Your Honor, I object to this authei^-

ticity of that, something that LeMoyne College 
compiled. Who compiled it, that is the problem,
I don't know what it says, but I'm sure it has con­
clusions and -- (interrupted)

MR. CALDWELL: Well, in that connection, ho
should knov/ what it v/as, what was said, because it 
was furnished to hira two months ago when Chief Lux 
gave us a copy.

MR. SHEA: Well, when I saw it, I don't know, 1
I don't know whether there are conclusions in thercj 
or not, or whether they are correct or not, that is.



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331

there is no \/ay I can cross-exaraine this piece of 
paper, and there has been no -- I think it would 
be -- this thing just didn't compile itself, Your 
Honor. I think the best v/ay to get it introduced, 
if it is aduiissible at all, is by somebody who com-’ 
piled it. I can't -- (interrupted)

THE COURT: Well, at this point. I'll allow
it to be introduced as a matter not for the truth 
of the ascertions contained therein, but as a 
matter that the witness testified that he v/as aware: 
of thcit came to his attention while he served as 
the chief of police, in accordance with Mr. Lux's 
testimony.

(IVhereupon, the said exhibit previously 
marked Number 22 for identification, was 
received in evidence.)
MR. CALDWELL: All right, sir.
Now, I would like to say. Your Honor, that we 

have identified a number of documents, and in ad­
vance of trial, and attempted to give Mr. Shea I

copies of everything which we proposed to use as 
exhibits, and that, and we have asked him previously

ion previous occasions, to stipulate to authenticity!
of documents, or to let us knov/ of any that he doesi1
not agree on, and this is the first tirae he has |



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mentioned this, you knov/, I mean, objected as to 
authenticity, authenticity objection, but I'll get 
Dr. Vidulich to coraa down then and indicate it, if 
that is what it takes.

Mr . SHEA: Your Honor, I don't want to dis­
pute Mr. Caldv/ell's v/ord, but, I have seen sene of 
these before, and I have always told him that I 
was going to object to the admissibility of any of 
the information.

MR. CALDWELL: I understand that. I realized
that ho has the relevancy and other objections, 
but not authenticity objection to which I thought 
he made no complaints.

THE COURT: Well, insofar as this, these othei
iteras, v/hich are concerned, the report of the 
Presidential Commission, so forth, because of the 
nature of those and the rather v;ide, widespread 
knowledge about those natters, the Court v/ould 
consider that those items could and v;ould be a 
accepted into evidence without the necessity of 
any of the persons who comprised any part of that 
body .

MR. SHE/i.: I agree with that.
THE COURT: And reserve the argument of coun­

sel as to hov/ it cipplies to the issues in tais



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case, the Court is siiTioly not axvaro of the nature
sr the, or the extent, or v:hat the particular it eras
tnat you gentler.;en are discussing now, and as to
whether or not it should be subject to the normal
and usual objections as to proper predicate and
the basis for the report, and so forth, and, of
course, the Court is not av/are as to what agreement
or nonagreement that you gentlemen may have reache
v/ith regard to admissibility of those items.

MR. CALD'JELL: Your Honor, as Mr. Arnold
reminded me, at the deposition. Chief Lux testifiec»
that, as to the attitude of the, of the black com- | 
rnunity toward the police. This is the only study |

I
that he is aware of, and that he thought that he ; 
agreed v/ith this study. He agreed with the results!

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reached in this study, and it was true, and I can 
specifically read from the, from the deposition,
I'm a little vague on his testimony. He stated the 
same thing that this research, he supported the 
conclusions of this research study, as far as his 
own personal knov/ledge is concerned, in dealing 
with the Memphis Police Department.

I might point out. Your Honor, if I just pass ’ 
that copy to the Court. It is, first, it is not a ■ 
matter which, which prepared itself, as Mr. Shea !



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1 said. In tha first several pages there demonstrates 
to the various samples , and just hov/ it was con- 1
ducted, and as Chief X-ux has testified, one of the |i]
persons responsible for overseeing tha research was 
Dr. Vidulich, \;hich, v/ho was chairraan of the 
Psychology Department at Mteraphis State.

iTHE COURT; Jell, gentlemen, v/e are, at the !
1

posture here where, of course, the Court, if this j 
is a vital part of the plaintiff's case, and, and j 
the Court fails to admit it into evidence, or j

Iaffords the plaintiff an opportunity to, for it to |
« , Ibe admitted into evidence, it could be prejudicial !

as far as the plaintiffs are concerned. At the same|
j

time, if it is, purportedly, a vital part, matter, 
and the Court v/ill state candidly at this point, 
if Ur. Kenny's testimony is to be the only other 
testimony relating to psychological attitudes of 
blacks tov;ard the police department in Memphis, I 
other than this, the Court is not at all sure that i

j

there is any other sufficient evidence bearing upon 
that matter.

If this is an important matter in the ruling,
!

if the defendants v/ant an opportunity or the parties
feel that they, they should be afforded an oppor- '

I
tunity to examine the person that subraitted, i



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1 admitted -chis, the Court feels that there ought to 
be that opportunity.

At the sane time, I certainly don't want to 
rule with any, in any fashion, without reading, at 
this point, some twenty-seven pages of this laatter 
it is difficult for the Court to rule either v/ay, 
knowing v;hat it is presented for, other than what 
the Court has already ruled, that the witness, as 
we understand his testimony of this raorning, the 
witness stated that this came to his attention 
through Director Holloraan. He was aware of this

Iand he was aware of this as representing a matter 
pertaining to the attitudes of the black coraraunity.

I ’m not aware, at this point, at least, of 
this v/itness ' testimony, as to the circumstances 
or the details of that report, or the conclusions, 
if any, are made in this report.

Ordinarily, Mr. Caldwell is correct, that 
where items are presented in advance, as purported, 
or proposed exhibits, the adversary party has the 
burden of stating the basis of objection to the 
admission of that item as an exhibit, except that 
normally there is to be laid a proper predicate 
for its introduction, and it is very difficult for 
the Court to rule here.



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I'll lie glad to hear from the plaintiff as to 
v;hat it is being presented for, as proof and evi­
dence, and, and hear from the defendants, and try 
to make a ruling as best we can under that circum­
stance that we'll be, would not work prejudice to 
either side, if that is possible.

MR. CALDUELL; Your Honor, may I read a por­
tion of the deposition which bears particularly on
this

tion:
Starting at page twenty-eight of his deposi-

"Question; And that there is more of a 
problem of police image in, in the black 
community the'n in the white community here in j 
Memphis ?

"Ansv;er: Yes. There is a bit of research
done by LeMoyne-Owen and Memphis State that 
reflects this.

"Question: What is that, is that pub­
lished? I!!"Answer: It is published. Dr. Vidulich,j

i
Ithe chairman of the Psychology Department at i 

Memphis State was involved. I have got a 
copy of it at school, and it. was a joint 
effort of LeMoyne and Memphis State



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Psychology Department.
'■Doctor who?
"Zmswer: Vidulich, he's the chairman of

the Psychology Department. This was published 
and I was given a copy here about -- this v;as 
done when we -- it was pretty close to the 
time of the hearings, you remember the hearing 
Zmd then in reference to N - double ACP 

hearing, and then deletion, jumping to page thirty.

S i7 "

s ays ;
"This is just merely a survey, is whati

it is .
"It deals v/ith attitudes toward the polic 

in the black community?
"Ansv/er: Yes.
"And V7hite community?
"Ansv/er: Right. It covered both com­

munities. Vfhat do they call it -- v/hat do —  

academy decision, imperial research.
"Question: You are familiar vvith this

then both from experience and from these 
studies, I would assume, during your period 
of time as chief of police?

"I think that most of us would conclude 
that this was true, and, of course, I'm

e



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farailiar with the research."
MR. SHhA; If Your Honor please, I think he 

left out the section right here (indicating).
MR. CALDV7ELL: Yes, sir, I did not read that.
Would you like we to read that again?
MR. SHEA: Yes.
MR. CALDWELL: All right. Your Honor, after

the statement -- that is correct -- that the.
Chief Lux said that:

"It was pretty close to the time of the 
hearings,"

t
we continued on page t^^^enty-nine:

“MR. CALDWELL: Over at the county court?
"Answer: At the County Court Building

and had Barrett Rustin here and some of these 
people .

"MR. CALDWELL: Was that seventy?
"THE WITNESS; Sixty-nine, seventy, right! 

in that area there. I had a -- I have a copy 
of this thing at school.

"MR. SHEA: It is not admissible as far
as I'm concerned. If they want to go by it 
or get it.

"Question: If you would let us know
where it is available.



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339

’’Zuiswer: If I could find out where it is

available, I ' ii'. not sure.
"MR. CALDVJELL; Can we get a copy from

you?
"THE VJITNE5S : It is on mimeograph, if

my lav/yer has no objection to it.
"MR. SilEA: If he wants to contact you

and you give it to them, I have no objection.
Just give me a copy of it, too.

"THE WITNESS: Yeah, I will send you a

copy of it too."
And then it continues on the next page, and I don't

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contend that Mr. Caldwell agreed to its admissibili|ty , 
but, but I do think that, or at least I thought | 
that the authenticity would not be objected to on i
the basis of Chief Lux's testimony. i

THE COURT; 'Well, gentlemen. I'll allow eitherl
J

of you to question this witness. It is sought to 
be introduced through this v/itness?

MR. CALDV7ELL: Yes, sir. j
I

THE COURT: This is a matter that is a survey .
of attitudes of, tov/ard the Memphis police, of the | 
residents of Memphis, Tennessee, and on the face • 
of it, conclusions and opinions from the Department 
of Psychology, chairman of the Department of ,



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340

Psychology, LeMoyno-Owen College, Departments of 
Psychology and Sociology, dated March, 1970, and 
on the front stamped: "Received August 3, the
third, seven fifty ci.rti., 1970 , Director of Fire 
and Police."

And it is a twenty-seven page document which 
the Court has not read, and it is sought to be 
introduced at this point, based on the, on the 
testimony of Mr. Lux as Exhibit Number 22.

Now, I have heard those portions of the depo­
sition and the Court rules, as the Court rules, 
the witness' testimony alleged that he had, had 
seen since, or received a copy of that document, 
but the Court does not recall the extent of this 
witness' information or knowledge, acknowledgment, 
that the, whatever conclusions are stated, statis­
tics or conclusions, there, that he had reason to 
believe are correct or accurate, but you may ask. 

MR. CALDVJ'ELL: All right. Your Honor.
(Whereupon, Mr. Caldwell continues to 

direct examine the v/itness in regard to the 
above ruling.)

BY MR. CALDWELL:
Q All right, sir,

I shov7 you the isortion that I just read from the



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deposition, would you take that and I ’ll ask that again, 
there, we discussed either here, or the deposition.
Chief Lux, that the general conclusions of this report 
is that there is a difference in opinion of the Memphis 
Police Department, or there v;as at the tirae the survey 
v/as conducted between the black community and that opini 
held by the white community, and one of the things I 
think I asked you this morning was in reference to a

question in a survey:
"In general, what do you think of the

Memphis police?"
And we talked about how the answers were favorable 

to the police, were expressly fifty“tv/o percent, and 
twenty—five percent ambivalent, and twenty—three percent 
v/ere unfavorable.

"However, these totals mask a striking 
difference between blacks and whites.

"Favorable opinions were voiced by 
seventy-seven percent of whites, but by only 
thirty-eight percent of blacks. If ambivalent 
and negative opinions are combined into a ,
category of less than complete approval, |!sixty-tv;o percent of blacks express thio 
opinion, but only twenty-three percent of |

Iwhites." i

on



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1 A Arc you asking ir.e if you asked those questions thisj 

raorning ?
Q No, I ' ra going to ask the question.
A I'm sorry.
Q And then, as I recall, I asked you if you agreed, 
based on your experience with the police department, if 
these figures were squared with your knowledge of the 
relationship, of the relationship of the police depart”

ment with the black community.
A Are you asking me if you asked me that this morning.

I!
Q Tell me again, do you agree v/ith these figures? !

i17' As I said this morning, this has not been proven, 1!(
I cannot vouch for these figures at all. I have no way |

I

of vouching for them. I had nothing to do with compiling 
them or asking any other questions, or anything. I was;
merely, was giving you the benefit of the research that,

Iwas being had, being done, and I cannot vouch for the | 

research.  ̂ !
Q All right, sir.

But your own opinion is that there is, indicated, ; 
based on the complaints, v/hich, which, that you received

I
from the black neighborhoods, and at your deposition | 
you said that opinion was supported by this research j 
that was done?
A Well, you read it a moment ago, I'm not sure



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343

exactly what the statement was, but I have never intenae|d 
to attempt to authenticate or verify this as being --- 

(interrupted)
Q Vlell, the only reason (interrupted)

MR. SHEA; I object to him being interrupted.
A The only way I could agree with that is to do the 
research.
BY. MR. CALDvifELL:

Q Right, but you have never, never questioned the 
authenticity or integrity of this study, is that right?
A Not either way.
Q Are you familiar with Dr. Vidulich's research in, 
with regard to other areas?
A I think that he is a very capable man. I personalljy 
am acquainted v;ith him. I think he is a very capable 
man. If that can serve as an answer, I'm not really 
familiar with, myself, of his other researches. I'm 
sure that he has been involved.
Q All right, sir.

MR. CALDWELL: That is all the questions I
would ask about the exhibit.

THE COURT; Well, the Court will simply say 
this, we'll not close the case without the oppor­
tunity of the plaintiffs, if they feel that parti­
cular exhibit is important and material, to bring.



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bring, at a reasonable occasion, a witness to testi 
fy so that a sufficient basis is laid, and the 
Court regrets that there has been any misunder­
standing, apparently, with regard to its admissi­
bility, and the Court will not close the proof, 
we'll treat that exhibit as having been identified 
and admitted for the purpose only at this point, 
at least, that the Court has indicated, that Mr.
Lux and the director apparently v^ere aware of this, 
of the existence of this survey as of August of 
1970, and if the plaintiffs wish to have it intro- 
duced through a proper predicate, then the Court 
will afford then the opportunity to do so.

And let's proceed.
All right.

CROSS-EXAMINATION 
BY MR. SHEA:______

Q Chief Lux, as you knov;, that you are a defendant I 

in this lawsuit?
A Yes, sir, I do.
Q Even though you v/ere not chief of police?

A Yes, sir.
Q You have already testified as when you resigned 
as chief of police department of the city of Memphis, 
and to refresh ny memory, would you give me the exact



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345

date?
A Yes, sir.

I actually left Uoveiuber the first, 1971. I had 
no further involveinent with the police department beyond 
that date. I was on the payroll until January 1, 1972.
I v/as on the accumulated annual leave.
Q But you actually left the department when?
A November the first, 1971.
Q Nineteen seventy-one.

And this incident happened in the death of Fred 
Lee Berry, took place January, '72?
A I suppose it did.
<j All right, sir.

Did you give any order to Patrolman Richards, or 
patrolmen, or Patrolman Richards specifically, as to 
Fred Lee Berry?
A No, sir.
Q Did you, you didn't actually participate in any 
feature of the man's death?
A I did not know Mr. Berry existed, what his activi­
ties were, and I had no further connection with the 
police department at this time.

MR. SHEA; Excuse me just a second.
Q Chief, I think we have had a problem with the 
semantics here. iJould you state again what your



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understanding is of the Tennessee Code section 
authorizing the use of lethal force?
A dell, iny interpretation of it, my understanding is 
that it allov/s you to use that force v;hich is necessary 
to effect an arrest.
Q Effect an arrest.

And as result of that, death may ensue, is that 
right?
A The potential is alv/ays there, if you use force, 
that would e m b o d v  potential of death, certainly. I

i
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Q VJell, nov7, there are three possibilities wheneverI
lethal force is used: one, that the officer firing the
weapon would miss the party completely; two, that he 
could, could wound him; or, three, that the party could 
die .

Are those the only things that can happen?
A Essentially, yes, sir, I think that is right.
U All riglit, sir.

Nov;, if the officer is authorized to use lethal
force, doesn ' t
th at death may
we apon?
A Certainly
Q All right

H ov;, Chie



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347

are interested in police v^ork, are you not? You are 
teaching in criminology?
A Very ranch so. I do quite a bic of research myself 
now in order to teach.
Q All right, sir.

In the proof of Mister, of —  excuse lae of Dr. 
Kenny -- (interrupted)

MR. C/iLDWELL: It is E-xhibit 42, I think.
MR. SHEA: Thank you.

Q Well, I can get around that.
What percentage of, what percentage of criraes that 

are committed in the city of Memphis are solved?
A Well, we did research in 1971 for the first six 
months, and at that point in time we were solving appro 
mately twenty percent of the crimes that was reported 
to the police department, and this paralleled a nationa 
figure also, approximately twenty percent of the crime 
reported to a police agency is solved. That has held 
pretty consistently over a period of years.
Q Then, now, as -- (interrupted)
A Now, it varies in categories.
Q I see .
A But, but putting them altogether you come out v/ith 
tv/enty percent.
Q And, and you say that is a national average?

C l -



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1 A It was at 1
Q And eighty
A I think it

Q And, then.
tain categories
that correct?
A \lcll, sir,

During our
the law enforcement people, and the standards they 
applied, I think they canc to the conclusion that about 
as much crime is not reported as crime that is reported

Iand that there is a rather high, much, twice as much
crime occurs, only, but half of it is reported, so that
v7ould affect the figure that you are talking about,
would probably even be less if their research is correc .

MR. SHEA: Thank you very much.
THE COURT: Mr. Caldwell?

REDIRECT EXAMINATION 
BY MR. CALDWELL;

Q Chief, are you familiar with the FBI annual report? 
A Yes, sir.
Q They compile all of this kind of information you 
are talking about on their -- (interrupted)
A There are all sorts of information.
0 (Continuing) -- crime solved and crime reported.



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what goes into solving, hov? to define a solved crime, 
is yoxar study in Ilemphis based on the same kind approacl 

that the FBI uses?
A Yes, sir. They have a uniform crime report comraiti 
that sets the standards that are adopted by this, and 
they, of course, encourage that all of the agencies 
reporting use these standards. I think you 11 find 
some variance among the agencies, but they try, and of 
course, the FBI only compiles that which is furnished 
to them. They can’t vouch for the authenticity of any­
thing coming from the various cities.
Q I s e e .

The Memphis Police Department, at all timios ti*at 
you were with it, did try to follow, did try to maKe 
your data comport to v/hat they wanted?
A Yes .
Q And so you collected data from the accurate data

for this report?
A That is right.
Q All right, sir.

And so they have this report broken down into 
different sections. Part one is the, or the one they 
call "Violence of Crimes"?
A Normally, yes, sir.
Q And confines those, those stated here in this

ee



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exhibit as; raurdar, forcible rape, robbery, ar.d aggra­
vated assault. There is vacre discussion of that over 
here in the text of this report, and then they break it 
down to property crimes, burglary, larceny, theft, and 
auto theft?
A Right.
Q And we v/erc talking about the arrests, the arrest 
statistics in connection with another v;itness. 'What 
does into these statistics in Memphis, Tennessee,
Memphis, did you -- (interrupted)
A The statistics that I cited v;ere people v/ho v/ere

»
arrested for felony offenses, what we based it on, and 
of course, the total number of felonies versus the 
total number of arrested, and that was about twenty 
percent. , '
Q Okay.

All right, sir.
These were not, you didn't include nonfolonies in 

that report?
A Ko, nonfelonies were not included in there, and is
not included in the national figure normally.
Q All right, sir.

So you had, for this six months period, you, there
Iwere certain number of crimes reported, and tnat numberj 

you made arrests in twenty percent of the cases, is that



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right?
A Rivght.
Q And is that an accurate decision?

A Right.
Q And what happened, what happened to those when the^
got to criminal court, or city court, whatever you don' 
know what the result is?
A That is correct.

MR. CALDWRLL: Your Honor, I would like to
offer this, this FBI report into evidence for 
several reasons.

It does show' the property crimes violation 
distinguished from, on which, which our statistics 
have been based, and on v/hich, which Memphis Folic' 
Department statistical analyses, or statistical 
collective system came from, and v/hich there arc 
statistics on, on crime, and the type crimes per­
tain to Memphis, and also, I v;ould not expect the |_ '  i
Court to read it, but there might be other statrs-,!
tics which we v/ould like to direct the. Court's !

I 
I

particular attention in connection with arrests 
and convictions, and that sort of thing.

HR.SHEA: If Your Honor please, I object to
the admission of this report by the FBI. We have 
gotten to the point now where we might as well



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cidrtiit thG liol.y ilibXe and .it lias cjot soinGtliiny in i 
about crir.e and punishrient/ and I tail to see the j 

relevancy of this, and certainly object to its 
ir. troduction.

MR. CALDWLLL: Well, first of all, it is a
document of v;hich the Court can take judicial 
knowledge of, and maybe a matter of relevance.

Now, I did not, I did not ask Chief Lux, and 
I will ask Chief Lux to establish the definition 
of, to further offer it, to define it.

THE COURT: V'Jhat is the date?
MR. CALDWELL: That is 1973.
This is for the year of 1973. This is the 

most recent one available.
I will be glad to substitute a 1971.
THE COURT; Well, the Court will permit a j

1971 report to be submitted, and note the objection 
of the plaintiff (defendant) to the materiality orj 
relevancy of, of any of the information, and I will 
permit it to be introduced, a 1971 report, to be | 
introduced.

MR. CALDWELL: Thank you. Your Honor.
THE CLERK: Shall we reserve Exhibit 43 for

that one?
THE COURT: Yes, sir.



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353

MR. C/iLDWELL: I don't have a 1971 edition ‘
v;ith me, T ' 11 have to obtain and substitute 

THE COURT: All right, sir.
(Whereupon, the said exhibit v?as 

accordingly marked Exhibit Number 43 and 
received in evidence.)
THE COURT: Anything further?
HR. CALOWELL: No, sir.
MR. SHEA: Nothing further of this witness.
THE COURT: All right, thank you, sir.

(V7itness excused)
$

MR, SHEA: Your Honor, the next witness --
Are you going to put on Coletta? Are you 

going to go to Colletta's proof?
MR. CALDWELL: Your Honor, v?e previously

agreed v:ith Mr. Shea to let him get rid of Dr. 
(Captain) Coletta this afternoon, if we could, 
we would like to do that.

Well, I have, now, I have got other wit­
nesses, but v/e can call Captain Coletta.

MR. SHEA: Well, in the ordinary process,
there, I think Mr. Coletta, or Captain Coletta is
going to take some film tliis afternoon. Is there {iI
something else -- j

Your Honor is going to run 'til five o'clock?’



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HR. CALDWELL; V<ell, 1 could introduce some 
exhibits that have previously been marked and not 
identified, I night say that we have, we have the 
report of the N double ACP ad-hoc coiamittee pre­
pared in 1970, and also the underlying transcript 
of the hearings that were conducted. We propose 
to offer those, not for the truth of the raatters, 
but for the fact that they are, they were had, and 
made, and that Chief Lux said they received a lot 
of publicity.

Mr. Shea has not given v/arning of what, what 
he contends to be authenticity of those.

I had arranged for Mrs. Maxine Smith who was 
then and is now the chairman of the committee, a 
member of the committee there, and also a member 
of NAACP, to testify, pretrial setting this week, 
she has had several hard operations in recent yeari, 
and she is under doctor's orders to be in bed this 
week, and I have just learned that, night before 
last, and I had not been able to get her, get her 
here this week, but if possible, if we are g o i n g  

to be delayed until Monday, it is possible I could 
get her, or I could get, get hold of certain other:)

I

whom I have tried to get available after I found 
out Mrs. Smith \'/as ill. If we could have permission



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to deal with this on rionday, and not close our 

proof.
THE COURT; V/ell, gentlemen, let rae hear from 

you now.
The Court is anxious to know, at one time I

was advised that you gentlemen thought you could
get your proof and evidence in in a couple of days
How, v/e have had a day and a half and I ' ra anxious
to know how long each of you feel that it is going
to take to present your proof and evidence in this
case. We have got other cases that are waiting

»and will be waiting to get started, based upon the 
Court's getting to them. I know we have put on 
witnesses out of order and, as and when they are 
available, but I would like to know, have some ideji 
about hov; long and what other proof and evidence 
is going to be adduced in this case?

MR. SHEA: If Your Honor please, as I have
previously stated what I will put on, but it depends 
on v;hat may open up. lie has already put on most 
of my proof, and all I have, somebody from the 
crime scene, and Mayor Wyeth Chandler, and Captain 
Coletta, which I don't think is going to take a 
half day to put on, but I'm certainly, I certainlyj

Iam going to object to any report of the ad-hoc



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conuni ttGe/ of tixo N double ACP # that is like -asKinc; 
a fox to guard a hen house. That has no relevancy 
whatsoever. Certainly not admissible.

MR. CALDWELL: That v;as a racial slur to the
black community.

MR. SHEA: That certainly is not, Mr. Caldwei:.
MR. CALDWELL: Well, as I understood your

remark v/as in reference to a fox guarding the hen 
house, I think that also reflects on the people 
who prepared that report, or study, and it may, it 
is made -- (interrupted)

MR. SHEA: V7ell, I'm sorry, I didn't really
mean the statement, make the statetaent as an afron 
to that, to parallel the black community, that ad- 
hoc committee, making some findings, that would be 
objectionable, as far as I ' ra concerned, just does 
not exist, that I feel that the black comraunity, 
v/hen they had a, an ad-hoc committee, didn't have 
any white people on it, did they, I ’m not going to 
argue with you, and I apologize if you feel that 
it was a racial slur.

MR. CALDWELL; Well, it didn't offend me 
because I'm not black.

MR. SHEA: Well, it didn't offend the black
community.



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THE COURT: vJeli, gentlemen, what is the
admissibility, what purpose does the ad-hoc conimit-j- 
tee -- the Court is well av/are of U double ACP ' s 
interest, or purported interest in this case, and 
in the financing of this case, and v/hat is the 
relevancy of the UiAACP ad-hoc committee, and what 
is the purpose of the introduction of that report 
as proof and evidence in die case?

MR. CALDWELL: First of all, I would like to
make it clear that NAACP has no interest or no 
other involvement in this, in financing this thing 
I don't know hov/ the Court is, has this knowledge.

THE COURT: V/ell, the purported, reported
interest and financing on, is what I remember, and 
ai^parently not always unusual that reported matter 
is in connection -- (interrupted)

MR. CALDWELL: Secondly, Your Honor, v/e don't
offer these as truths of the matters asserted, but 
we want to show there was a great deal of testimony 
about brutality which Doctor -- Chief, I, I mean 
Chief Lux, -- I'm trying to call everybody doctor, 
but Chief Lux's testimony acknowledged that he is 
aware of, which they received widespread publicity 
at this time, there were allegations of police i.iis- 
conduct, they were aired in public, and these



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hearings wei& held over a period of several weeks 
in 1970 , and there were charges of racial discrir.i + 
natory treatment in the police department, and thej 
conclusions on this goes to support that part, and 
also Dr. Vidulich ' s report v;as prepared in connec­
tion with these hearings, the Memphis Police 
Department, well, they, when they get objections, 
the Memphis Police Department were invited to 
attend these meetings and participate in the 
hearings, and Director Holloman declined.

The information in the report is not intro­
duced for the truth of the matter of what the polite 
brutality was, but that this was widespread pub­
licity throughout, but there is wise publicity, 
feelings, publicity, about which goes to the likeli­
hood that black attitudes tend, for example, well, 
toward a v;hite police officer, in this city, I 
mean, that is not, it is a part of our case, but, 
but certainly not the whole case, and we do think 
it is highly relevant to those limited experiences 
in terms of the rest of our proof, that proof, and 
any reworking of the exhibits which have been par­
tially objected to, because they include post-1972 
data and the exhibits which v/e have identified 
which we'll introduce, would conclude our case.



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THE COURT; Well, the Court has stated that 
you may be afforded the opportunity to get into a 
bases, basis for authenticity on the LeMoyne laattei 
beyond the purpose for which it has already been 
admi tted.

MR. CALDWELL; Yes, sir. Your Honor.
THE COURT; That, and that maybe something 

that the plaintiff may go into and a representative 
of the N double ACP to testify, and the Court's 
disposed to feel that the purported representative 
either .Squire Turner or Mrs. Smith, would be appro­
priate persons to testify rather than the document 
themselves, which counsel has said he is not offering 
for the truth of what is purported, but merely to 
indicate that, there;, that such a meeting took 
place.

MR. CALDWELL; Yes, sir, and certain kinds of 
allegations were made, for example, well -- (inte.r-̂  

rupted)
THE COURT; Well, it would seem to the Court 

that a person who may have been associated, or con­
nected, would be the person to testify rather than 
to offer the voluminous papers that are not sub­
mitted for the purpose of showing the truth there, 
but for anyone that would testify with regard to



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360

that being information.
MR, CALDWELL: This is a summary report which

is not, which summarizes the material, but I have 
the transcript available also as supportive infor­
mation, not necessarily to burden the record in tht̂  

case -- (interrupted)
THE COURT: Well, I believe it would burden

the record.
MR. CALDV7ELL: (Continuing) -- to include all

of those other matters.
Vie can avoid all -- (interrupted)
THE COURT: All right, sir.
Is there anything, gentlemen, that either of 

you have, either of you gentlemen are ready to pre 
sent today, if you have to present some testimony, 
we can do that, but we don't expect to go too very 
long .

MR. SHEA: If Your Honor please, I think
Captain Coletta would take much longer than to fiv 
o'clock, if Your Honor wants to hear from him, we'Xl 
put him on.

THE COURT: All right, sir.
MR. ARNOLD: Your Honor?
THE COURT: Yes, sir.
MR. ARNOLD: This will take about one minute.



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but we'll do it now.
This is a chart prepared from items v/hich can 

be judicially noticed/ it is our calculations in 
terms of expected life earnings of Fred Lee Berry, 
calculated from the mortality tables in the 
Tennessee Code, and from the rainiraum wage Act in 
the United States Code, and I have attached to thi^ 
copies of the mortality table and the minimum 'wage 
law, and it reflects the changes in the minimum 
wage law as they now exist through 1977, and we 
would like to offer iiito evidence, as an exhibit, 
this, as I our purported statement of the expected 
life earnings of Fred Lee Berry.

THE COURT: Mr. Shea.
MR. SHEA: If Your Honor please, I object to

it, but I'm -- (interrupted)
THE COURT: Well, I'll admit it into evidence^
The mortality tables, testimony is, has been 

adduced that, that the deceased was sixteen years 
and eleven some odd months of age, at the time of 
his death and the Court will admit for whatever 
relevancy the minimum wage schedule, and, and as 
far as counsel's computations. I'll sustain an 
objection to that, without limiting the plaintiff 
to any relevant proof that may pertain to it.



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I don't know that The nature of your calcu­
lations nay be, for exaraple, as to v/hether tnat 
assumes v/orking fifty-two weeks, forty hours a 
week, frora what date to what date, and other assum}|>' 
tions that may be in the record, and how that 
related to a ninth grade student, and other vari­
ables that v;ould apply in this particular case 
based on the proof and evidence until this time, 
but I'll certainly admit into evidence the mortalij:y 
table and the minimum wage table for whatever 
relevancy may be shown by argument, and, and 1 will 
permit the exhibit to be identified that relates 
to plaintiff's calculations, and v;ould hear from 
the plaintiff at the appropriate tine after we get 
all of the proof and evidence as to what would be 
an appropriate amount, but I believe that I'll de­
cline to admit into evidence any calculations basejl 
(interrupted)

MR. ARNOLD: Yes, sir.
THE COURT: Again, based on counsel's calcula­

tions, other than the mortality table and the mini­
mum wage scale.

MR. CALDWELL: May we file it for identifica­
tion, the calculations or not?

THE COURT: You may file for identification.



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MR. CALD17LLL: Yes, Sir.
THE COURT: The Court is not precluding coun­

sel, by not admitting into evidence, those calcula­
tions, from any appropriate argument about it, 
about the amount of damages claimed.

THE CLERK: Shall we make that mortality tabl
44 and the code section -- (interrupted)

THE COURT: Let 44(a) will be the mortality
table, and 44(b) will be the purported ninimum wag^ 
schedule.

(Whereupon, the said exhibits were 
accordingly marked Exhibit Numbers 44(a) and 
(b), and received in evidence.)
THE CLERK; And 45 for the computation?
THE COURT; Forty-five for identification, 

the computation.
(Whereupon, the said instrument was 

accordingly marked Exhibit Number 45 for 
identification only.)
MR. ARNOLD; Your Honor has mentioned working 

tomorrow. If it makes any difference to the Court 
I just as soon not come down just for an hour 
tomorrow.

THE COURT: All right.
The Clerk has handed me, after I made that



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Statement, and I have got scheduled matters of
hearings, dispositions, or motions at nine thirty, |

i
Iten twenty, eleven fifteen, and eleven thirty, and 

one at one thirty, and one at one forty, and two 
fifteen, two forty-five, and three. So that doesn’ 
leave ne very much time for other disposition on 
this case.

MR. ARIIOLD: I just received a new notice of
a hearing in Judge Brown's court in the morning, 
so, if that is all right with you, I would appre­
ciate it.

THE COURT; Yes, sir.
MR. ARNOLD: Thank you.
THE COURT; Anything further, gentlemen?
The plaintiff will present whatever proof and 

evidence then that's to be adduced, and I'll ask 
that you gentlemen come in at nine thirty on 
Monday morning. We'll have proceeded to have 
Selected a jury in a criminal case, and then we'll! 
proceed with your matter on Monday, and you gentle^ 
men will be excused until that time.

And Mr. Clerk, we'll stand adjourned until 
ten o'clock tomorrow morning.

(Whereupon, at five p.m., the court was
adjourned for the day.)