US District Court for the Western District of Tennessee Court Opinion

    No. 77-1089

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Cleamtee Garner, father and next of 
kin of Eugene Gamer, a deceased, 
minor,

Plaintiff-Appellant,

V.

Memphis Police Department, Gity 
OF Memphis, T ennessee and J ay 
W. Hubbard and E. R. Hymon in 
their official capacities,

Defendants-Appellees.

On Appeal from the 
United States District 
Court for the Western 
District of Tennessee.

Decided and Filed June 18, 1979.

Before: Edwards, Chief Judge; L ively and Merritt, Cir­
cuit Judges.

Merritt, Circuit Judge. On the night of October 3, 1974, 
a fifteen year old, imarmed boy broke a window and en­
tered an imoccupied residence in suburban Memphis to steal 
money and property. Two police officers, called to the scene 
by a neighbor, intercepted the youth as he ran from the back 
of the house to a six foot cyclone fence in the back yard. 
Using a 38-calibre pistol loaded with hollow point bullets, 
one of the officers shot and killed the boy from a range of 
30 to 40 feet as he climbed the fence to escape. After shining  
a flashlight on the boy as he crouched by the fence, the of-



fioer identified himself as a policeman and yelled “Halt.” He 
could see that the fleeing felon was a youth and was apparent­
ly unarmed. As the boy jumped to get over the fence, the 
officer fired at the upper part of the body, as he was trained 
to do by his superiors at the Memphis Pohce Department. 
He shot because he believed the boy would elude capture in 
the dark once he was over the fence. The officer was taught 
that it was proper to kill a fleeing felon rather than run 
the risk of allowing him to escape.

The District Court dismissed the suit of decedent’s father 
brought against the City under 42 U.S.C. §1983 (1976) to 
recover damages for wrongful death caused by claimed con­
stitutional violations of the fourth, eighth and fourteenth 
amendments. In accordance with then existing law, the Dis­
trict Court held that a city is not a “person” subject to suit 
under § 1983; but Monroe v. Pape, 364 U.S. 167 (1961), in 
which the Supreme Court so ruled, was overruled on this 
point last term by the case of Monell v. Department of Socid  
Services, 436 U.S. 658 (1978). Following a bench trial, the 
District Court also dismissed the case against the officer and 
his superiors holding, in accordance with our decisions in 
Beech  v. Melancon, 465 F.2d 425 ( 6th Cir. 1972), cert, denied, 
409 U.S. 1114 (1973); Qualls v. Parrish, 534 F.2d 690 ( 6th Cir. 
1976); and W iley  v. Memphis Police Department, 548 F.2d 
1247 ( 6th Cir.), cert, denied, 434 U.S. 822 (1977), that the 
officers acted in good faith reliance on Tennessee law which 
allows an officer to kill a fleeing felon rather than run the 
risk of allowing him to escape apprehension.

We conclude that the District Court did not err in finding 
that the individual defendants acted in good faith reliance 
on Tenn. Code Ann. § 40-808 which provides that an officer 
“may use all the necessary means to effect the arrest” of a 
fleeing felon. As our previous cases, cited above, point out, 
Tennessee courts have interpreted this statute as a codification 
of the common law rule allowng officers to kill fleeing felons 
rather than run the risk of permitting them to escape ap­

2 Garner v, Memphis Police Department, et d . No. 77-1089



No. 77-1089 Garner v. Memphis Police Department, et al. 3

prehension. This rule applies to fleeing felons suspected of 
property crimes not endangering human hfe, as well as life- 
endangering crimes, and to felons who pose no threat of 
bodily harm to others, if not apprehended immediately, as 
well as felons who may be dangerous to others if left at large. 
Applying the qualified “good faith” privilege or immunity 
from liabihty for constitutional claims, as announced in our 
previous decisions cited above, we aflSrm that portion of the 
District Comrt’s judgment dismissing the case against the in­
dividual defendants.

We reverse and remand the case against the City, how­
ever, for reconsideration by the District Court in hght of 
Monell V. Department o f Social Services, supra. Monell holds 
that a city may be held liable in damages under § 1983 for 
constitutional deprivations that result from a “policy or cus­
tom” followed by the city. 436 U.S. at 694 and n.66.

Our previous decisions do not establish the constitutionality 
of Tenn. Code Ann. § 40-808, permitting a city to authorize 
its officers to use deadly force against a fleeing felon, nor 
have they established the constitutionahty of the city’s use of 
hollow point bullets. Although there is discussion of the 
constitutionality of the Tennessee statute in the Beech, Qualls 
and Wiley cases, supra, all three of those cases dealt with ac­
tions against individual officers under § 1983, and not liabili­
ty based on the “policy or custom” of a governmental entity. 
Those cases held that it “would be unfair” to impose liability 
on an officer “who relied, in good faith, upon the settled law 
of his state that relieved him from liability for the particular 
acts performed in his official capacity.” Qualls v. Parrish, supra 
at 694, quoted in Wiley v. Memphis Police Department, supra 
at 1253. The essential holding of those cases was that an in­
dividual officer has a qualified privilege or immunity from 
liability for constitutional claims based on good faith per­
formance of his duties in accordance with statutory or admin­
istrative authority, a holding subsequently approved by the 
Supreme Court in Butz v. Economou, 438 U.S. 478, 496-508



(1978). Although the quahfied immunity developed in those 
cases insulates the officers and officials from personal liabihty 
in this case, as the District Court held, the following ques­
tions in the case against the city are stiU open under Monell:

1. Does a municipahty have a similar qualified immuni­
ty or privilege based on good faith under Monell?’

2. If not, is a municipality’s use of deadly force under 
Tennessee law to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitutionally 
permissible under the fomth, sixth, eighth and four­
teenth amendments?*

3. Is the municipality’s use of hollow point buUets con­
stitutionally permissible under these provisions of the 
Constitution?*

4. If the municipal conduct in any of these respects vi­
olates the Constitution, did the conduct flow from a 
“policy or custom” for which the City is liable in 
damages under Monell?*

4 Garner v. Memphis Police Department, et al. No. 77-1089

1 See  discussion of this question in Leite v. City of Providence, 463 
F. Supp. 585, 588 (D. R.I. 1978).

2 See generally Coker v. Georgia, 433 U.S. 5S4 (1977); Ingreiham 
V. Wright, 430 U.S. 651 (1977); Gregg v. Georgia, 428 U.S. 153 
(1976); Furman v. Georgia, 408 U.S. 238 (1972); Landrum v. Moats, 
576 F.2d 1320 (8th Cir.), cert, denied, 99 S.Ct. 282 (1978); Mattis v. 
Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated as advisory opinion 
sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977); Jones v. Marshall, 
528 F.2d 132 (2d Cir. 1975); Day, Shooting the Fleeing Felon: State 
of the Law, 14 Cr im . L. B u ll . 285 (1978); Comment, Deadly Force to 
Arrest: Triggering Constitutional Review, 11 Harv. C. R . —  C. L. L. 
R ev. 361 (1976).

3 See generally Paust, Does Your Police Force Use Illegal Weapons^ 
A Configurative Approach to Decision Integrating International and 
Domestic Law, 18 Harv. I nt’l  L.J. 19 (1977).

4 On the question of “policy or custom,” police records are said 
to show, according to rep>orts we do not find in this record, that 
during the preceding eight years Memphis police officers killed 
seventeen fleeing burglary suspects; thirteen were black and five 
were youths. According to the same reports, Memphis police of­
ficers killed twenty-four individuals during this period in connec­
tion with crimes of violence or in self-defense; they attempted to 
use deadly force on 177 occasions, 114 of which were in connection



We remand the case against the City to the District Court 
for reconsideration in light of Monell, including consideration 
of these questions.

No. 77-1089 Gamer v. Memphis Police Department, et al, 5

with property crimes. See the original certified appellate record, 
document 45, in Wiley v. Memphis Police Dep’t, 548 F.2d 1247 (6th 
Cir.), cert, denied, 434 U.S. 822 (1977), as summarized in Comment, 
Deadly Force to Arrest: Triggering Constitutional Review, 11 Harv. 
C. R. —  C. L. L . R ev. 361, 362 n.4 (1976); Report, Term. Adv. Com­
mittee to U.S. Civ. Rights Comm’n, Civic Crisis —  Civil Challenge: 
Police-Community Relations in Memphis 81 (1978).