Brief of Petitioners

    No. 83-1070

In the Supreme Court of the United States
October Term, 1983

MEMPHIS POLICE DEPARTMENT, et aL,
Petitioners,

vs.
CLEAMTEE GARNER, et al., 

Respondents.

On  W rit of Certiorari to the U nited S tates Court 
OF A ppeals for the S ix t h  C ircuit

BRIEF OF PETITIONERS

H enry L. K lein 
Staff Attorney
Attorney of Record for Petitioners 
1500 First Tenn. Bank Bldg. 
Memphis, Tennessee 38103 
(901) 523-2363

Clifford D. P ierce, Jr.
City Attorney 

Charles V. H olmes 
Senior Assistant City Attorney 

P aul F. G oodman 
Assistant City Attorney 

A rthur J. S hea 
Deputy City Attorney 
314 - 125 N. Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Petitioners

E. L. M endenhall  ̂ I n c ., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8030



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QUESTIONS PRESENTED

The questions presented for review are:
1. Whether Tennessee Code Annotated §40-7-108 

(former §40-808), which allows police to use all necessary 
means to effect the arrest of a fleeing felony suspect, in­
cluding deadly force when all lesser means of apprehen­
sion have been exhausted, violates the Fourth and Four­
teenth Amendments of the United States Constitution be­
cause it may authorize the use of deadly force against what 
ultimately is determined to be an unarmed suspect fleeing 
from a non-violent felony.

2. Whether a police officer’s use of deadly force, after 
all lesser means of apprehension have been exhausted, to 
apprehend a fleeing individual suspected of first degree 
burglary, a felony under state law defined as the night­
time breaking and entering of a dwelling, violates the 
Fourth and Fourteenth Amendments of the United States 
Constitution.



II

LIST OF PARTIES

In addition to the parties named in the caption, the 
State of Tennessee, through its Attorney Greneral, William 
M. Leech, Jr., was an intervenor-appellant to this pro­
ceeding in the Court of Appeals for the purpose of defend­
ing the constitutionality of Tennessee Code Annotated 
§40-7-108. The State of Tennessee filed a direct appeal 
to this Court on December 21, 1983. Probable jurisdiction 
was noted on March 19, 1984. The style of that appeal is 
State of Tennessee v. Cleamtee Garner, et al., No. 83-1035, 
and has been consolidated with this cause.



m

TABLE OF CONTENTS

Questions Presented .............. '............................. ........... i
List of Parties..................................................................  n
Table of Authorities ........................................................ iv
Opinions Below .................................................................  1
Jurisdiction ....................................................................... 2
Constitutional Provisions and Statutes Involved..........  2
Statement of Case ...........................................................  3
Summary of Argument............. ....................................   7

Argument—
1. Introduction ..................................................    9
2. Fourth Amendment Analysis .............................  12
3. Fourteenth Amendment Analysis—

a. Compelling State Interests Justify Use of
Deadly Force ..................................................  15

b. The Model Penal Code Standard Adopted
by the Sixth Circuit Is Not Required by the 
Constitution .................................................... 17

c. Burglary Is a Dangerous Offense Which
Warrants Inclusion As a Shooting Offense 22

Conclusion ........................................................................  26

TABLE OF AUTHORITIES 
Cases

Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), cert.
denied, 409 U.S. 1114 (1973) ....................................... 10

Garner v. State, 227 Ind. 726, 89 N.E.2d 74 (1949) ..... 24
Cunningham v. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 

1971) ................................................................................9-10



IV

Garner v. Memphis Police Dept., 710 F.2d 240 (6th 
Cir. 1983), rehearing and rehearing en banc denied
......................................................................................2,18, 22

Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970) ....8,12-13
Jones V. Marshall, 528 F.2d 132 (2d Cir. 1975) .......11,19-21
Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938) 9
Love V. Bass, 145 Tenn. 522, 238 S.W. 94 (1921) .....9-10,17
Mattis V. Schnarr, 547 F.2d 1007 (8th Cir. 1976), 

vacated as moot per curiam sub nom. Ashcroft v. 
Mattis, 431 U.S. 171 (1977), rehearing denied, 433
U.S. 915......................................................................... 7-8,11

Monell V. Dept, of Social Services, 436 U.S. 658 (1978) 6
Qualls V. Parrish, 534 F.2d 690 (6th Cir. 1976) ............  10
Reneau v. State, 70 Tenn. 720 (1879) ......................9,10,17
Roe V. Wade, 410 U.S. 113 (1973) ...................................  16
Scarbrough v. State, 168 Tenn. 106, 76 S.W.2d 106

(1934) ............................................................................  9
State V. Boles, 598 S.W.2d 821 (Tenn. Crim. App.

1980) ................................................................................  9
Terry v. State of Ohio, 392 U.S. 1 (1968) ..........................13-14
United States v. Gilliam, 25 Fed. Ca. 1319 (Cir. Ct.,

D.Col. 1882) ...................................................................  23
Wiley V. Memphis Police Department, 548 F.2d 1247 

(6th Cir. 1977), cert, denied, 434 U.S. 822 ....8, 9-10,12, 22

Constitutional Provisions

U.S. Constitution Amendment I V .......2, 7-8,10,12-13,19, 26
U.S. Constitution Amendment XIV ..................2, 7-8,10-11,

15-16, 19, 26



V

Statutes
28 U.S.C. §1331 ...... .........................................................  4
28 U.S.C. §1343(3) ..........................................................  5
42 U.S.C. §1981 ................................................................  4
42 U.S.C. §1983 .....................................................4,7-8,20-21
42 U.S.C. §1985 ................................................................  4
42 U.S.C. §1986 ................................................................  4
42 U.S.C. §1988 ................................................................  4
Tennessee Code Annotated §39-3-401 (1982) .............. 22-23
Tennessee Code Annotated §40-7-108 (1982) (Former 

§40-808) ..............................................3, 5, 7, 9-11,16-17, 26

Other Authorities
American Law Institute, Model Penal Code (Tent.

Draft No. 8, 1958) ..................................................14-16, 25
American Law Institute, Model Penal Code (1962) .... 18
13 Am. Jur. 2d, Burglary, §2 ......................................... 24
4 W. Blackstone, Commentaries................................’.....23-24
3 E. Coke, Institutes.........................................................  23
Comment, Deadly Force to Arrest: Triggering Con­

stitutional Review, 11 Harv. C.R.-C.L. L. Rev. 361
(1976) ............................................................................  24

D. Hume, Commentaries On The Law of Scotland Re­
specting Crimes (4th Ed. 1844) .................................  23

National Advisory Commission On Criminal Justice
Standards and Goals, Police 1-3 (1973) ..................  14

R. M. Perkins, Criminal Law (3rd Ed. 1982) ..............  23
II F. Pollock & F. Maitland, History of English Law,

(1st Ed. 1895) ...............................................................  23
Restatement of Torts §131 (1934) .................................  19
Restatement {Second) of Torts §131 (1965) ..................  19
Warren & Brandeis, The Right to Privacy, 4 Harv. L.

Rev. 193 (1890) ...........................................................  24



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No. 83-1070
In the Supreme Court of the United States

October Term, 1983

MEMPHIS POLICE DEPARTMENT, et al.,
Petitioners,

vs.
CLEAMTEE GARNER, et al.. 

Respondents.

O n W rit of Certiorari to the U nited S tates Court 
OF Appeals for the Six t h  C ircuit

BRIEF OF PETITIONERS

OPINIONS BELOW

The memorandum opinion of the District Court for the 
Western District of Tennessee, Western Division, filed Sep­
tember 29, 1976, has not been officially published, and ap­
pears in the Appendix to the Petition for Writ of Certiorari 
filed herein at page 1.̂  The opinion of the Sixth Circuit 
Court of Appeals filed June 18, 1979, reversing the District 
Court judgment and remanding the case against the City of 
Memphis for reconsideration by the District Court, is re­
ported at 600 F.2d 52 and appears at Pet. A. 15. The memo­
randum opinion of the District Court for the Western Dis­
trict of Tennessee, Western Division, filed February 29,

1. The appendix to the Petition for Writ of Certiorari filed 
herein will be designated by the signal: “ Pet. A.” The joint
appendix submitted in this matter will be designated “J.A.”



1980, has not been officially published, and appears at 
Pet. A. 20. Upon reconsideration, the District Court filed 
an opinion on July 8, 1981, which appears at Pet. A. 31. 
The opinion of the Sixth Circuit Court of Appeals, filed 
June 16, 1983, reversing the District Court judgment and 
remanding the case for further proceedings, is reported at 
710 F.2d 240 and appears at Pet. A. 40. The order of the 
Sixth Circuit Court of Appeals, denying the Petitioners’ 
petition for rehearing with a suggestion that the petition 
be heard by the court sitting cn banc, was filed September 
26,1983, and has not been officially published. It appears at 
Pet. A. 58.

JURISDICTION

The judgment of the Sixth Circuit Court of Appeals 
was entered June 16, 1983. On September 26, 1983, the 
court filed an order denying the petitioners’ timely request 
for a rehearing with a suggestion that the petition be heard 
by the court sitting en banc. The Petition for Writ of Cer­
tiorari was timely filed on December 27, 1983, and was 
granted on March 19,1984.

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

The constitutional provisions involved in this case are 
the Fourth and Fourteenth Amendments to the United 
States Constitution. Those amendments read as follows, 
in pertinent part:

AMENDMENT IV

The right of the people to be secure in their per­
sons, houses, papers, and effects, against unreasonable



searches and seizures, shall not be violated, and no 
warrants shall issue, but upon probable cause sup­
ported by oath or affirmation, and particularly de­
scribing the place to be searched, and the persons or 
things to be seized.

AMENDMENT XIV

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or im­
munities of citizens of the United States; nor shall 
any State deprive any person of life, liberty, or prop­
erty, without due process of law; nor deny to any 
person within its jurisdiction the equal protection of 
the laws.

The State statutory provision involved in this case is 
Tennessee Code Annotated §40-7-108 (1982) (former
§40-808) at Volume 7A, page 55, which reads as follows:

Resistance to Officer - If after notice of the in­
tention to arrest the defendant, he either flees or 
forcibly resists, the officer may use all the necessary 
means to effect the arrest.

STATEMENT OF THE CASE

On the night of October 3, 1974, an individual broke 
a window at the rear of a residence within the city limits 
of Memphis, Tennessee, and entered the house. (J.A. 33, 
37-38, 47-48.) Police were called by a neighbor, and two 
(2) officers were dispatched to the scene. (J.A. 37-38, 
47-48.) When they arrived, the officers were advised



by the neighbor only that “they are breaking in” (em­
phasis Judge WeUford’s). (Pet. A. 3; J.A. 37-38, 48, 75-77.) 
While one officer reported their arrival to the dispatcher, 
the other, Officer E. R. Hymon, went toward the rear of 
the house. (J.A. 48-49, 75-76.) As he approached the 
corner of the house, he heard the rear door slam and, 
rounding the corner, saw with the aid of his flashlight the 
figure of a black male crouching next to the fence at 
the rear of the residence approximately thirty to forty feet 
(30-40') away. (J.A. 49-51, 76-77.) The officer could 
not tell whether the man was armed. (J.A. 55-56.)

The officer shouted “halt” and identified himself as 
a police officer. (J.A. 52.) After a momentary pause, the 
suspect sprang to the top of the fence, extending half his 
body over the fence, and the officer fired, striking the sus­
pect in the head. (J.A. 51-53, 56-57, 75-78). The of­
ficer believed there was very little opportunity of identi­
fication of the suspect for purpose of future arrest if he 
escaped; there were several obstacles, including a clothes­
line and other objects outlined in the dark, between the 
officer and the suspect, making pursuit almost certainly 
futile, and the officer was unfamiliar with the location and 
the neighborhood. (J.A. 52-53.)

The suspect, who was fatally wounded, turned out to 
be a fifteen-year old who was unarmed at the time. A 
small amount of money and jewelry, shown to have come 
from the residence, was on his person. (J.A. 34-35.) It 
was also later learned that the residence was unoccupied 
at the time of the break-in, although this was not known 
to the officers. (J.A. 32-33.)

On April 8, 1975, a civil rights action was brought by 
Cleamtee Garner in the United States District Court for 
the Western District of Tennessee pursuant to 42 U.S.C. 
§§1981, 1983, 1985, 1986, and 1988 and 28 U.S.C. §§1331



and 1343(3), to seek redress for the fatal shooting of his 
son, Edward Eugene Garner, by an officer of the Memphis 
Police Department, Named as defendants were the Mem­
phis Police Department; City of Memphis, Tennessee; 
Wyeth Chandler, Mayor of Memphis; Jay W. Hubbard, Di­
rector of the Memphis Police Department, and E. R. Hy- 
mon. Police Officer of the City of Memphis. (J.A. 4.)

The complaint alleged that defendant Officer Hymon 
violated the constitutional rights of Edward Eugene Gar­
ner when he shot and killed Garner in an attempt to ap­
prehend him while he fled from a private residence in 
Memphis. The other defendants were sued on grounds 
that their failure to exercise due care in the hiring, train­
ing, and supervision of defendant Hymon made them 
equally responsible for Garner’s death. All defendants 
were also sued on the grounds that the use or authoriza­
tion for use of the “hollow point” bullet further caused 
the deprivation of Garner’s rights under the Constitution 
and laws of the United States. (J.A, 4.)

On September 18, 1975, defendants filed their Answer 
denying liability, any violation of the Federal Civil Rights 
Statutes, and any deprivation of the deceased’s constitu­
tional rights. In further answering, defendants alleged 
that the actions of defendant Officer Hymon were autho­
rized by Tenn. Code Ann. §40-7-108, and that he therefore 
had the qualified immunity of “good faith.” (J.A. 19.)

Trial was held on August 2-4, 1976, without the in­
tervention of a jury. At the conclusion of the plaintiff’s 
proof on August 4, 1976, the district court granted a di­
rected verdict for defendants Hubbard and Chandler, and 
a partial directed verdict as to the City of Memphis and 
the Memphis Police Department with respect to hiring 
practices.

On September 29, 1976, the district court found in 
favor of all defendants on all issues. (Pet. A. 1-14.) On



appeal, the United States Court of Appeals for the Sixth 
Circuit affirmed the judgment of the district court dis­
missing the case against the individual defendants. How­
ever, the case was remanded as against the City of Mem­
phis for reconsideration in light of Monell v. Department 
of Social Services, 436 U.S. 658 (1978). The court in­
structed the district court to consider the following ques­
tions, among others, on remand:

1. Whether a mimicipality has qualified immunity or 
privilege based on good faith xmder Monell.

2. If not, under Tennessee law is a municipality’s use 
of deadly force to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitution­
ally permissible under the Fourth, Sixth, Eighth, 
and Fourteenth Amendments? (Pet. A. 15-19.)

On remand, the trial court ordered memoranda and 
oral argument on the issue of whether the trial should be 
reopened. By order dated February 29, 1980, the court 
denied further hearings and dismissed the case on the 
merits, holding that the constitutional claims had already 
been fully adjudicated. (Pet. A. 20-30.) The Court fur­
ther held that because there had been no constitutional 
violation, the holding of Monell that cities could be liable 
for violations occurring pursuant to a policy or custom 
of the city did not require a different result. (Pet. A. 29.) 
Plaintiff’s motion for reconsideration was granted, and 
he was allowed to submit further briefs and make an 
offer of proof. The Judge considered the offer of proof 
and once again ruled against plaintiffs in a written opinion 
dated July 8, 1981. (Pet. A. 31-39.) The court held that 
the wisdom of a statute permitting the use of deadly 
force against fleeing felons was a matter of policy for 
the legislature rather than the judiciary, and that the



Tennessee statute was neither unconstitutional on its face, 
nor as applied by the police officer in this case. (Pet. A. 37.)

An appeal was again taken to the Sixth Circuit Court 
of Appeals. In its opinion the Court of Appeals determined 
that Tenn. Code Ann. §40-7-108 was violative of the Fourth 
and Fourteenth Amendments to the United States Con­
stitution. The Court found that, insofar as Tenn. Code 
Ann. §40-7-108 would permit the use of deadly force 
against a nondangerous felony suspect fleeing a nonviolent 
felony, the statute permitted an unreasonable and excessive 
seizure of the person. The Court further held that the 
due process provisions of the Fifth and Fourteenth Amend­
ments prohibit deadly force except where the officer has 
probable cause to believe that the felon is dangerous or 
has committed a violent crime. The case was remanded 
for further proceedings consistent with the opinion. (Pet. 
A. 40-47.)

SUMMARY OF ARGUMENT

The Sixth Circuit below found that Tennessee’s Deadly 
Force Statute, which codifies the common law “fleeing 
felon” rule, violated the Fourth and Fourteenth Amend­
ments to the United States Constitution, in that it could 
allow the use of deadly force against even a nonviolent 
fleeing felon. The Sixth Circuit essentially adopted the 
Model Penal Code as providing the minimum standard 
for constitutional review of a shooting by a police officer. 
Petitioners submit that the Sixth Circuit erroneously ap­
plied 42 U.S.C. §1983 for this proposition.

Prior to the Sixth Circuit’s decision below, only the 
Eighth Circuit Court of Appeals in Mattis v. Schnarr, 
547 F.2d 1007 (8th Cir. 1976), vacated as moot per curiam 
sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977), rehear­



8

ing denied, 433 U.S. 915, had so applied Section 1983. 
The view contra, i.e. that a police officer is justified in 
using deadly force to apprehend a fleeing felony suspect 
after all lesser means of apprehension have been exhausted, 
has long been the rule in almost every state, until altered 
by recent legislation in several states. The common law 
view has had considerable support in case law over a 
great many years and should not be lightly abandoned.

The finding below that the Tennessee Deadly Force 
Statute violates the Fourth Amendment rights of a fleeing 
suspect is an aberration and has no supporting case law. 
Any reliance placed by the Sixth Circuit in Jenkins v. 
Averett, 424 F.2d 1228 (4th Cir. 1970), is based on a misin­
terpretation of that case, in which the Fourth Circuit held 
that no amount of force by the officer would have been 
permissible. The Sixth Circuit created a Fourth Amend­
ment violation from the degree of force used, a miscon­
struction of the Fourth Amendment.

The Sixth Circuit now adopts the Model Penal Code 
as the minimum constitutional requisite for purposes of 
determining whether a violation of 42 U.S.C. §1983 has 
occurred, in contravention of its own earlier holding in 
Wiley V. Memphis Police Department, 548 F.2d 1247 (6th 
Cir. 1977), cert, denied, 434 U.S. 822. The Model Penal 
Code represents only model legislation and has been 
adopted to date in only fourteen states; thus, it is still 
very much the minority view.

In applying the Fourteenth Amendment balancing 
analysis to the facts herein, the Court of Appeals either 
ignored or gave insufficient deference to the compelling 
state interests herein—effective law enforcement and the 
apprehension of fleeing criminals. The rule adopted favors 
the criminal and encourages flight to avoid capture.



The decision below treats the nighttime breaking and 
entering of a residence with intent to commit a felony 
as no more serious a crime than tax fraud or other non­
violent felonies, a preposterous conclusion that ignores cen­
turies of thought to the effect that burglary should be 
considered a dangerous offense. Burglary is an invasion 
of the sanctity of the domain and inherently endangers 
life; it is not a mere property crime, as stated by some 
critics of the common law deadly force rule.

ARGUMENT

INTRODUCTION

Tennessee Code Annotated §40-7-108 (formerly §40- 
808), is Tennessee’s “deadly force” statute. The language 
of this section first appeared in the Tennessee Code of 
1858, the first official Code of Tennessee, and was a codifi­
cation of the common law. See Wiley v. Memphis Police 
Department, 548 F.2d 1247 (6th Cir. 1977), cert, denied, 
434 U.S. 822; Cunningham v. Ellington, 323 F.Supp. 
1072 (W.D. Tenn. 1971). As interpreted by the Tennessee 
courts, the statute permits an officer to use force that 
may result in death in preventing the escape of a person 
he is attempting to arrest if (1) he reasonably believes 
that the person has committed a felony; (2) he notifies 
the person that he intends to arrest him, and (3) he reason­
ably believes that no means less than such force will 
permit the escape. Johnson v. State, 173 Tenn. 134, 114 
S.W.2d 819 (1938); Scarbrough v. State, 168 Tenn. 106, 
76 S.W.2d 106 (1934); Love v. Bass, 145 Tenn. 522, 238 
S.W. 94 (1921); Reneau v. State, 70 Tenn. 720 (1879), 
and State v. Boles, 598 S.W.2d 821 (Tenn. Crim. App. 
1980). As such, in Tennessee an officer has no absolute 
right to use deadly force either to arrest or prevent the



10

escape of a fleeing felon, if with diligence and caution 
the fleeing felon might otherwise have been taken. Re- 
neau v. State, supra; Love v. Bass, supra.

The constitutionality of Tenn. Code Ann. §40-7-108 
has been considered on several occasions. In the case 
of Cunningham v. Ellington, supra, the plaintiff contended 
that the statute was unconstitutional on its face because 
it permitted the use of cruel and unusual punishment 
in violation of the Eighth Amendment; it was unconstitu­
tionally overbroad; it was an unconstitutional incursion 
with respect to a person’s rights to trial by jury, confronta­
tion of witnesses and assistance of counsel, and it violated 
the due process clause of the Fourteenth Amendment. 
After considering each argument, the three-judge panel 
concluded that §40-7-108 was not unconstitutional on its 
face and, further, that any changes to this rule allowing 
the use of deadly force should be left to the state legisla­
ture.

The statute was further considered by the United 
States Court of Appeals for the Sixth Circuit 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 Wiley v. Memphis Police Department, 
supra. In each of these cases the Court of Appeals found 
the statute to be constitutionally sound.

In Wiley, the most recent case to consider the statute’s 
constitutionality, the plaintiff alleged that the Memphis 
Police Department’s deadly force policy, which conformed 
with Tenn. Code Ann. §40-7-108, violated, among others, 
the Fourth and Fourteenth Amendments to the United 
States Constitution. In upholding the constitutionality of 
the statute, the Court reasoned that if such a statute were 
held to be unconstitutional it would extend to the felon 
unwarranted protection, at the expense of the unprotected



11

public. The Court further declared that any change in 
the law relating to the use of deadly force by police officers 
should be left to the state legislature.

A similar decision was rendered by the United States 
Court of Appeals for the Second Circuit in the case of Jones 
V. Marshall, 528 F.2d 132 (2d Cir. 1975). In Jones the 
United States Court of Appeals for the Second Circuit up­
held the validity of the Connecticut common law concern­
ing the use of deadly force, which was virtually identical 
to Tenn. Code Ann. §40-7-108. There the officer, while in 
pursuit of three subjects suspected of auto theft, shot and 
killed plaintiff after he failed to heed the command to 
halt. It was later determined that none of the fleeing 
felony suspects was armed or posed a threat to third per­
sons. In upholding the validity of Connecticut’s deadly 
force rule, the Court found that the constitution does not 
require a restriction of the use of deadly force to non- 
dangerous felony suspects. The Court concluded that 
the state legislature was the proper place for the plaintiff 
to turn if he wished to change the common law rule which 
permitted the use of deadly force to effect a felony arrest. 
(As noted by the Court, shortly after the facts in Jones 
occurred, the Connecticut legislature indeed codified the 
Connecticut common law rule concerning the use of deadly 
force.)

Prior to the Court of Appeals’ decision herein, the 
Eighth Circuit was the only court which had held a statute 
similar to Tenn. Code Ann. §40-7-108 to be unconstitu­
tional. In Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976), 
vacated as moot per curiam suh nom. Ashcroft v. Mattis, 
431 U.S. 171 (1977), rehearing denied, 433 U.S. 915, the 
Court held Missouri’s deadly force statute unconstitutional 
under the Fourteenth Amendment as a denial of substan­
tive due process. The decision of the Court, however, in­



12

eluded a dissenting opinion written by Chief Judge Gibson 
which was highly critical of the majority opinion for not 
following decisions of other Circuits and for embarking 
on a new course which should have been left to the state 
legislatures. It should be noted that the Sixth Circuit in 
Wiley was sharply critical of the Eighth Circuit’s majority 
opinion and adopted the reasoning of the dissent.

FOURTH AMENDMENT ANALYSIS

In its opinion herein the Sixth Circuit Court of Ap­
peals holds that the use of deadly force by police to ap­
prehend a fleeing felon can only meet Fourth Amendment 
standards upon a finding of probable cause on two levels: 
(1) police must have probable cause to believe that a 
felony has been committed and that the person fleeing 
committed it, i.e. probable cause to arrest, and (2) police 
must have probable cause to believe the fleeing felon is 
dangerous or has committed a violent crime. It is the 
position of the Petitioners herein that the Court of Appeals 
below erred in so finding.

The Court of Appeals admitted in its opinion that 
there appears to be virtually no authority for the proposi­
tion that the Fourth Amendment imposes limits on the 
use of deadly force to capture a suspected fleeing felon. 
The Court’s reliance on Jenkins v. Averett, 424 F.2d 1228 
(4th Cir. 1970), for this proposition, is misplaced. In 
Jenkins the Court found that the officers, in shooting 
Jenkins, had unreasonably “seized him” because they had 
no probable cause to arrest him using any level of force. 
It is clear that the very attempt to apprehend Jenkins, 
without probable cause to interfere with his freedom of 
movement, was the constitutional violation subjecting the 
officer to liability, not the level of force used.



13

The facts in Jenkins reveal that the defendant police 
officer pursued plaintiff despite the fact that he had no 
reason to believe plaintiff had been guilty of any wrong­
doing and shot him at close range after he had surrendered. 
The Court, upon being presented with these facts, concluded 
that "'no force was needed to restrain Jenkins” (emphasis 
added), and as such, any force used was unnecessary and 
an arbitrary act on the part of the defendant officer, creat­
ing the constitutional violation.

Petitioners herein contend that the Fourth Amend­
ment does not prohibit the use of deadly force against a 
suspect fleeing from a felony, particularly first degree 
burglary. Once probable cause to arrest has been estab­
lished, the Fourth Amendment does not protect an in­
dividual from police officers’ use of that amount of force 
necessary to effect arrest. This is especially true when 
it is considered that the individual himself has created the 
necessity of using such force to effect his arrest by re­
fusing to submit to a lawful arrest and lesser means of force. 
As noted by the District Court Judge below, the suspect 
herein assumed the risk of being fired upon by refusing 
to heed the warnings of the arresting officer. (See Pet. 
A. 10.)

Assuming, for purposes of this argument, that a Fourth 
Amendment analysis is appropriate, the Court must then 
look to the rule of reasonableness established by Terry v. 
State oj Ohio, 392 U.S. 1, 9 (1968). Following Terry, the 
Court must first identify both the governmental interest in 
volved which would justify the use of deadly force and the 
effect such use would have upon individual rights. Then 
the Court must balance the two competing interests and 
determine whether the state’s need to use such force justi­
fies the effect it has upon individual rights.



14

When this analysis is applied to the Tennessee deadly 
force rule, it becomes apparent that there are several 
legitimate governmental interests at stake. The state cer­
tainly has an interest in effective crime prevention and 
law enforcement, and the apprehension of fleeing felons 
to answer the charges against them. Being able to arrest 
such individuals is a condition precedent to the state’s 
entire system of law enforcement. Having the potential 
to lawfully use deadly force to apprehend a felon facilitates 
this process by notifying the criminal that flight is not an 
option open for his consideration. As stated by Professor 
Waite, a member of the Advisory Committee for the 
Model Penal Code, “effectiveness in making arrests re­
quires more than merely pitting the footwork of policemen 
against that of suspected criminals.” Model Penal Code, 
§3.07 (Tent. Draft No. 8, 1958).

Further, the state, in enacting such deadly force stat­
utes, need not ignore the long tradition of violence which 
surrounds the American criminal, the effect crime has 
upon the community generally, and the effects specific 
crimes have upon individuals. See Terry v. State of Ohio, 
supra, 392 U.S. at p. 23. The effects of crime on individual 
liberty, safety, and security must be given due consideration 
by the courts when assessing the reasonableness of the 
use of deadly force to arrest. As noted by the National 
Advisory Commission on Criminal Justice Standards and 
Goals:

The fear of crime is something Americans cannot ac­
cept. Modern Americans are moving toward insula­
tion and isolation. . . . Fear of personal injury or 
loss of possessions can dominate the lives of freedom 
loving people.

See: National Advisory Commission On Criminal Justice
Standards and Goals, Police 1-3 (1973).



15

Balanced against these interests are the individual 
rights of the fleeing felon. The most important interest 
at stake for the fleeing felon, of course, is the interest he 
has in his own life. However, it must be recognized that 
his right to escape, once probable cause to arrest exists, 
is not a constitutionally protected interest. There is no 
constitutional right to commit felonious offenses and to 
escape the consequences of those offenses.

It only seems reasonable that, when a police officer 
has probable cause to make an arrest of a felon, he also 
have the necessary powers to implement and effect that 
arrest by being authorized to use that amount of force 
reasonably necessary under the circumstances. Not giving 
police officers the necessary power to effectuate the arrest 
says to the criminal: __

“No matter what you have done you are foolish if 
you submit to arrest. The officer dare not take the 
risk of shooting at you. If you can outrun him, outrun 
him. . . .  If you are faster than he is you are free, 
and God bless you.”

Model Penal Code 
1958)

53.07, Comments (Tent. Draft No. 8,

FOURTEENTH AMENDMENT ANALYSIS

Compelling State Interests Justify Use Of Deadly 
Force

The Fourteenth Amendment to the United States Con­
stitution prohibits a State from depriving “any person of 
life, liberty, or property without due process of law.” 
Under the Fourteenth Amendment a state is required to 
justify any law enforcement practice which affects a fun­



16

damental right by demonstrating a compelling state in­
terest to justify such practice. Roe v. Wade, 410 U.S. 113 
(1973). Further, the Fourteenth Amendment requires 
that laws so affecting fundamental rights be narrowly 
drawn to express only the legitimate state interests at 
stake. Id.

Petitioners herein contend that the Court of Appeals 
below erroneously held that Tenn. Code Ann. §40-7-108 
violates the Fourteenth Amendment, in that it failed to 
recognize the compelling state interests involved or con­
sider the procedural safeguards which govern the applica­
tion of the statute.

The legitimate state interest involved herein concerns 
the apprehension of a fleeing felon. It is the apprehension 
of such person and not his punishment that is in question. 
The police officers who are in pursuit of a fleeing felon 
have no right to punish the felon in any manner, but it is 
their duty to apprehend him as the first step of our criminal 
law process.

Plaintiffs will assert that the officer’s shooting of a 
fleeing burglary suspect is too harsh a penalty, since no 
state provides a sentence of execution for the convicted 
burglar. However, plaintiffs confuse the motive of ap­
prehension in law enforcement with the motive of criminal 
sentencing. Even under the Model Penal Code standard 
espoused by some writers and, now, the Sixth Circuit, 
many of the crimes which might allow an officer to 
shoot if necessary to apprehend the fleeing suspect are not 
capital offenses, for example aggravated assault, armed 
robbery, forcible rape, and felony murder. Even the ma­
jority of murders committed will not result in a death 
sentence, and, of course, under our system of justice all 
offenders are presumed innocent until adjudged guilty. 
It is not a question of whether an officer may execute a



17

suspected felon, but whether an officer may use all 
means reasonably necessary to effect an arrest of a felony 
suspect, including the use of deadly force after all other 
means have been exhausted.

Since apprehension is the compelling state interest 
at stake, it is important to recognize that the Tennessee 
Deadly Force Statute allows only such force as may be 
reasonably necessary under the circumstances to appre­
hend a fleeing felon. It does not authorize the use of 
deadly force to apprehend a fleeing felon in every in­
stance, but rather only when no lesser means of appre­
hension are readily available. Reneau v. State, supra; 
Love V. Bass, supra. Therefore, as interpreted by the 
Tennessee Courts, §40-7-108 restricts the use of deadly 
force so as to effectuate only the legitimate state interests 
involved.

The Model Penal Code Standard Adopted By The Sixth 
Circuit Is Not Required By The Constitution

Petitioners submit that, even if the Sixth Circuit’s 
rejection of the Tennessee Deadly Force Statute be correct, 
the Court’s further holding that a State legislature may 
not include first degree burglary as a criminal offense 
warranting the application of deadly force to arrest a 
fleeing suspect, unless there existed probable cause to 
believe that the suspect is dangerous or has committed 
a violent crime, is an erroneous interpretation of the 
Fourteenth Amendment.

In holding the Tennessee Deadly Force Statute uncon­
stitutional, the Sixth Circuit stated:

Before taking the drastic measure of using deadly 
force as a last resort against a fleeing suspect, officers 
should have probable cause to believe not simply that



18

the suspect has committed some felony. They should 
have probable cause also to believe that the suspect 
poses a threat to the safety of the officers or a danger 
to the community if left at large. The officers may 
be justified in using deadly force if the suspect has 
committed a violent crime or if they have probable 
cause to believe that he is armed or that he will en­
danger the physical safety of others if not captured. 
A statute which allows officers to kill any unarmed 
fleeing felon does not meet this standard and is there­
fore invalid.

710 F.2d at 246.
In so holding, the Court in essence adopted the standard 
expressed in the Model Penal Code as the minimum con­
stitutional standard. The Model Penal Code, which was 
propounded by the American Law Institute in 1962, adds 
an additional element to the common law rule—the officer 
must believe that either:

(1) the crime for which the arrest is made involved 
conduct including the use or threatened use of 
deadly force, or

(2) there is a substantial risk that the suspect will 
cause death or serious bodily harm if his appre­
hension is delayed.

Although the Model Penal Code has it proponents, it was 
never intended to establish a minimum constitutional stan­
dard.

The Code standard has hardly met with unanimous 
approval even as model legislation. Since its introduction 
in 1962, a variant of the Model Penal Code has been codi­
fied in fourteen states; however twenty-five jurisdictions 
including the District of Columbia, retain the common law 
approach. See Tables at end of Petitioners’ Brief. Addi­



19

tionally, ten states have adopted a middle ground, in 
which certain “ forcible felonies”—which may or may not 
include first degree burglary, depending on the particular 
state—can authorize the use of deadly force. Two states, 
Idaho and New York, at one time adopted the Model 
Penal Code approach, but both then rejected it within 
one year.

There is certainly no consensus among the state legis­
latures as to what the standard ought to be, nor need there 
be. Certainly Connecticut, New York, California, Arizona, 
and Tennessee have differing concerns in combating crime, 
and the respective legislatures ought to be able to address 
their own state’s concerns within constitutional limita­
tions.

This is not to suggest that the lack of unanimity among 
the states as to the shooting standard forecloses discussion 
of whether the Fourth and Fourteenth Amendments pro­
hibit this particular shooting; yet the same lack of unanim­
ity certainly indicates that a strong belief remains that 
burglary is an offense of such gravity that shooting to ap­
prehend a fleeing suspect should be allowed.

As noted by the Court in Jones v. Marshall, supra, the 
history of both the First and Second Restatements of Torts 
is enlightening. Although both Restatements would allow 
an officer to use deadly force to apprehend a fleeing bur­
glary suspect (§131 in each), the First Restatement pro­
vided a narrower standard, allowing a privilege for the 
use of deadly force to effect an arrest only for treason, first 
degree burglary, or any other felony which normally causes 
death or serious injury. This narrow standard was ex­
pressly rejected in §131, Second Restatement, which es­
sentially restates the common law view.

The Second Circuit in Jones v. Marshall, supra, con­
cluded from the history of the two Restatements that.



20

“The American Law Institute’s almost 50 years of con­
sideration of the problem demonstrates that the area in 
which we are treading is one still characterized by shifting 
sands and obscured pathways.” 528 F.2d at 141. The 
Court further noted:

Here we are dealing with competing interests of so­
ciety of the very highest rank—interests in protecting 
human life against imwarranted invasion, and in pro­
moting peaceable surrender to the exertion of law 
enforcement authority. The balance that has been 
struck to date is very likely not the best one that 
can be. In an area where any balance is imperfect, 
however, there must be some room under §1983 for 
different views to prevail.

This would seem peculiarly to be one of those 
areas where some room must be left to the individual 
states to place a higher value on the interest in this 
case of peace, order, and vigorous law enforcement, 
than on the rights of individuals reasonably suspected 
to have engaged in the commission of a serious crime.
..  . While the Fourteenth Amendment may require us 
to make an independent assessment of the fairness of 
the state rule, however, we are today interpreting 
§1983, and within that statute the states must be given 
some leeway in the administration of their systems 
of justice, at least insofar as determining the scope 
of such an unsettled rule as an arresting officer’s priv­
ilege for the use of deadly force.

528 F.2d at 142, emphasis added.
In rejecting the plaintiff’s argument, the Court stated, 

“ [W]e are not satisfied, given the history and current 
status of the law of privilege, the ready availability of 
handguns to the populace at large (including nonviolent 
felons), and the needs of law enforcement in a society



21

where violence is widespread, that we can or should impose 
that view through §1983, as a federal standard to which 
all states would be subject.” 528 F.2d at 140.

The standard argued for here has in its favor centuries 
of support and should not be lightly tossed aside. It has 
long been the settled law of almost every state in the 
union, and only in recent years has it been significantly 
altered. The fact that some states have enacted a more 
stringent rule and that many police departments, including 
Memphis’, have adopted more stringent policies—see J. 
A. 140 & 145—is indicative that states and police depart­
ments are addressing a standard complaint to the common 
law rule, that shooting of all fleeing felons is impermissible, 
given the number of nondangerous offenses which are 
considered serious enough to be designated as felonies. 
However, it would be error to perceive from this a rejec­
tion of the historical categorization of burglary as a danger­
ous felony.

The decision of the Sixth Circuit herein places too 
great an emphasis on the due process rights of a felony 
suspect fleeing from the authority of a law enforcement 
officer, at the expense of the interest of the public. As 
stated by the Sixth Circuit in an earlier case:

The opinion [referring to Mattis v. Schnarr] does 
not suggest how law enforcement officers are to make 
the on-the-spot constitutional anlysis called for by its 
proposal and still react quickly enough to meet the 
exigencies of an emergency situation. How can a po­
lice officer ever know, reasonably or otherwise, 
whether the felon will use force against others if he 
is not immediately apprehended? It is clearly the 
prerogative of the state legislature to decide whether 
such restrictions on the use of force are consonant 
with public policy.



22

m iey  V. Memphis Police Dept., 548 F.2d 1247, 1253 (1977). 
Such a cogent and persuasive analysis should have been 
applied by the Sixth Circuit herein.

Burglary Is A Dangerous Offense Which Warrants In­
clusion As A Shooting Offense

The Sixth Circuit below failed to give sufficient defer­
ence to the gravity of the crime of burglary and the 
rationale for its inclusion as an offense warranting the 
use of deadly force to arrest. The Court stated that:

Tennessee law authorizing the use of deadly force 
against all fleeing felons is at odds with the purpose 
and function of the common law principle because 
there are now hundreds of state and federal felonies 
that range all the way from violations of tax, securities 
and antitrust laws and the possession of stolen or 
fraudulently obtained property to murder and crimes 
of terror.

710 F.2d at 244. From the fact that the Tennessee statute 
on its face would allow an officer to shoot a fleeing tax 
evader, the Court seems to reason that the statute may 
not constitutionally provide for the shooting of a fleeing 
burglary suspect. However, as the court noted, the com­
mon law rule allowing the shooting of a fleeing felon 
was deemed acceptable because “only violent crimes were 
classified as felonies, and all were punishable by death 
and subject to outlawry.” Id. What the court, of course, 
ignores is that this case does not involve a fleeing tax 
evader or securities defrauder, but instead a fleeing bur­
glar, an outlaw at common law.

Burglary was defined at common law as the nighttime 
breaking and entering of a dwelling house with intent 
to commit a felony. Tennessee Code Annotated §39-3- 
401 codifies the common law rule and provides for a sen­



23

tence of five to fifteen years or, if a firearm was involved, 
ten to fifteen years.

The common law conclusively presumed that burglary 
tended to put the life of the homeowner “ in peril.” United 
States V. Gilliam, 25 Fed.Ca, 1319, 1320 (Cir. Ct., D.Col. 
1882); see also R. M. Perkins, Criminal Law, 1110 (3rd 
Ed. 1982) ( “ ‘dangerous’ felonies were those that . . . have 
been shown by human experience to involve an unreason­
able risk [of causing] great personal harm (such as bur­
glary)” ).

At common law felonies included the crimes considered 
most heinous, e.g. treason, homicide, arson, rape, robbery, 
burglary, and grand larceny. II F. Pollock & F. Maitland, 
History of English Law 463-64, 509 (1st Ed. 1895). All such 
crimes were punishable by death and confiscation of the 
criminal’s land and chattels. Id. at 509. Burglary was 
considered especially serious, because its nighttime occur­
rence left victims particularly vulnerable to harm and 
it invaded the sanctity of a person’s domain.

Blackstone described burglary as a “forcible and atro­
cious crime” and “a very heinous offense.” 4 W. Black- 
stone, Commentaries, 180, 223. At common law, even the 
breaking and entering of a temporarily unoccupied building 
was considered burglary. 3 E. Coke, Institutes 63- 
65. Hume described it as a crime which causes sudden 
“alarm and danger.” D. Hume, Commentaries On The Law 
of Scotland Respecting Crimes 220 (4th Ed. 1844).

Professor Rollin M. Perkins noted that, “Those in 
charge of drafting the Model Penal Code were seriously 
in error when they assumed that defense of the habitation 
‘is a purely property concept.’ ” R. M. Perkins, Criminal 
Law 1153 (3rd Ed. 1982). “Burglary at common law 
is peculiarly an offense against the security of the habita­
tion, and not an offense against property as property.”



24

Carrier v. State, 227 Ind. 726, 731 n. 3, 89 N.E.2d 74, 
76 n. 3 (1949), quoting from Clark & Marshall, Law of 
Crimes, §401, at pp. 596-97 (2d Ed.).

The concept of inviolability of the home was so funda­
mental that at common law a homeowner could justifiably 
slay such an intruder. 4 W. Blackstone, Commentaries, 
180. As often noted, “The common law has always recog­
nized a man’s house as his castle. . . .” Warren & Brandeis, 
The Right to Privacy, 4 Harv. L. Rev. 193, 220 (1890); 
also see 4 Blackstone, Commentaries 223; 13 Am. Jur. 
2d, Burglary, §2. With this background in mind, any 
classification of burglary as merely an “economic” crime 
is seen to be clearly erroneous.^

It is clear that even the drafters of the Model Penal 
Code recognized that burglary was a serious offense, al­
though they did not treat it as such in drafting their ar­
rest provision.

The drafters considered abolition of common law bur­
glary as a separate offense and treatment instead as an 
attempt to commit the intended crime plus the offense of 
criminal trespass. In deciding to retain it they noted:

Centuries of history and a deeply imbedded Anglo- 
American conception such as burglary, however, are 
not easily discarded. The notable severity of bur­
glary penalties is accounted for by the fact that the 
offense was originally confined to violent nighttime 
assault on a dwelling. The dwelling was and remains 
each man’s castle, the final refuge from which he 
need not flee even if the alternative is to take the 
life of an assailant. It is the place of security for his 
family, as well as his most cherished possessions. Thus

2. See Comment, Deadly Force to Arrest: Triggering Con­
stitutional Review, 11 Harv. C.R.-C.L. L. Rev. 361, 366 n. 22 
(1976).



25

it is perhaps understandable that the offense should 
have been a capital felony at common law and that 
public fear of the burglar has broadened beyond its 
original objective.

The offense has thus been limited in the Model Code 
to the invasion of premises under circumstances es­
pecially likely to terrorize occupants.

ALI, Model Penal Code, Vol. II, Art. 221-1, Comment, p. 
67. (Emphasis added.)

The drafters noted that retention of common law bur­
glary as a separate offense “reflects a considered judgment 
that especially severe sanctions are appropriate for criminal 
invasion of premises under circumstances likely to terrorize 
occupants.” Id., Introductory note to Art. 221, p. 59. Se­
vere penalties were retained by the Model Code for bur­
glary joined with rape or murder, although the Code omits 
burglary, without other information being apparent to the 
officer, from offenses warranting the use of deadly force. 
What the Code overlooks is that in many instances a police 
officer in pursuit of a burglary suspect will not know 
whether the house was unoccupied, or instead, contains 
victims of assault, rape, or murder.

Our common experience tells us that, though the break­
ing and entering of a dwelling at nighttime may involve 
nonviolent crime, burglary frequently is associated with 
crimes of violence against the person, including rape and 
murder. The Sixth Circuit rule below— t̂he judicial codifi­
cation of the Model Penal Code—quite simply ignores the 
practical difficulty that a police officer attempting to ap­
prehend, for example, a burglary suspect will know what 
other crime was intended or committed. The officer in this 
case had no way of determining whether young Gamer 
was fleeing from a petit larceny or a murder. In fact, if



26

the Sixth Circuit decision is allowed to stand, it will be 
the rare violent criminal who accedes to the officer’s 
command to halt.

CONCLUSION

Based upon the foregoing argument, petitioners sub­
mit that a police officer’s use of deadly force to apprehend 
a fleeing burglary suspect, after all lesser means of ap­
prehension have been exhausted, does not violate the 
Fourth and Fourteenth Amendments to the Constitution, 
nor does Tenn. Code Ann. §40-7-108, which authorizes the 
use of deadly force to apprehend a fleeing felony suspect, 
violate the Fourth and Fourteenth Amendments.

As such, petitioners request this Court to reverse the 
decision of the Court of Appeals and affirm the holding 
of the District Court below.

Respectfully submitted,
H enry L. Kx e in  

Staff Attorney
Attorney of Record for Petitioners 
1500 First Tenn. Bank Bldg. 
Memphis, Tennessee 38103 
(901) 523-2363

Clifford D. P ierce, Jr.
City Attorney 

C harles V. H olm es

Senior Assistant City Attorney 
P aul F. G oodman 

Assistant City Attorney 
A rthur J. Shea 

Deputy City Attorney 
314 - 125 N. Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Petitioners



27

TABLE OF DEADLY FORCE LAWS 

Common Law Jurisdictions*

1. ALABAMA—see Union Indemnity Co. v. Webster, 218 
Ala. 468,118 So. 794 (1928), re/iearingf denied.

2. ARKANSAS—Ark. Stat. Ann. §41-510 (1977).

3. CONNECTICUT—Conn. , Gen. Stat. Ann. §53a-22 
(West 1972).

4. DISTRICT OF COLUMBIA—Barrett v. U.S., 62 U.S. 
App. D.C. 25 (1933).

5. FLORIDA—Fla. Stat. Ann. §776.05 (West 1976).

6. IDAHO—Idaho Code §19-610 (1979)—requires war­
rant. Idaho had adopted Model Penal Code in 1971 
but repealed it three months later.

7. INDIANA—Ind. Stat. Ann. §35-41-3-3-(b) (Burns 
Supp. 1983).

8. KANSAS—Kan. Stat. Ann. §21-3215 (1981).

9. MARYLAND—see Giant Foods, Inc. v. Scherry, 51 
Md. App. 586, 444 A.2d 483 (1982).

10. MASSACHUSETTS— ŝee Uraneck v. Lima, 359 Mass. 
749, 269 N.E.2d 670 (1971).

11. MISSISSIPPI—Miss. Code Ann. §97-3-15 (Supp. 
1983).

12. MISSOURI—Mo. Ann. Stat. §563.046 (Vernon 1979).

13. MONTANA—Mont. Code Ann. §46-6-104 (1983).

14. NEVADA—Nev. Rev. Stat. §200.140(3) (b) (1983).

*Allow shooting of fleeing burglary suspect.



28

15. NEW JERSEY—see Davis v. Hellwig, 21 N.J. 412, 
122 A.2d 497 (1956); Nohack v. Town of Montclair, 
33 N.J. Super. 420,110 A.2d 339, 343 (1954).

16. OHIO—see Clark v. Carney, 71 Ohio App. 14, 42 N.E.2d 
938, 940 (1942); State v. Elder, 120 N.E.2d 508, 510 
(Ohio Munic. Ct. 1953)

17. NEW MEXICO—N.M. Stat. Ann. §30-2-6 (c) (1983) 
(former §40A-2-7(c)).

18. OKLAHOMA-^kla. Stat. Ann. tit. 21, §732 (West 
1983).

19. RHODE ISLAND—R.I. Gen. Laws §12-7-9 (1981).

20. VIRGINIA—see Stinnett v. Commonwealth, 55 F.2d 
644, 645 (4th Cir. 1932); Berry v. Hammon, 203 Va. 
596, 125 S.E.2d 851 (1962); Hendricks v. Common­
wealth, 163 Va. 1102,178 S.E. 8 (1935).

21. SOUTH DAKOTA—S.D. Cod. Laws §22-16-32 (1979).

22. TENNESSEE—Tenn. Code Ann. §40-7-108 (1982)
(former §40-808).

23. WASHINGTON—Wash. Rev. Code Ann. §9A.16.040 
(1977).

24. WEST VIRGINIA—see State ex rel. Bumgarner v. 
Sims, 139 W. Va. 92, 79 S.E.2d 277 (1953); Thompson 
V. NA W. Ry. Co., 116 W. Va. 705, 182 S.E. 880, 
883-84 (App. 1935).

25. WISCONSIN—Wis. Stat. Ann. §939.45 (West 1982).



29

Forcible Felony Jurisdictions

1. CALIFORNIA—Cal. Penal Code §196 (West 1970)— 
California’s conunon law statute has been restricted 
by case law to include only “violent” felonies. See, 
e.g., Kortum v. Alkire, 69 Cal. App. 3d 325, 138 Cal. 
Rptr. 26 (Cal. App. 1977).

2. GEORGIA—Ga. Code Ann. §26-902 (1972); Wehh v. 
State, 283 S.E.2d 636 (Ga. App. 1981), rehearing 
denied, cert, denied; Johnson v. Jackson, 140 Ga. App. 
252, 230 S.E.2d 756 (1976).

3. ILLINOIS—m. Rev. Stat. ch. 38, §7-5 (a) (West 1972).

4. LOUISIANA— L̂a. Code Crim. Proc. Art. 220 (West 
1967); La. Stat. Ann. §§ 14:18, 14:20; Sauls v. Hutto, 
304 F. Supp. 124 (D. La. 1969).

5. NEW YORK—N.Y. Penal Law §35.30(1) (McKinney 
1975 & Supp. 1983 - 1984).*

6. OREGON—Ore. Rev. Stat. §161.239 (1983).*

7. PENNSYLVANIA------Pa. Stat. Ann. tit. 18, §508 (a)
(Purdon 1983).*

8. SOUTH CAROLINA—S.C. §17-252 (1962).
9. UTAH—Utah Code Ann. §76-2-404(2) (b) (Supp. 

1975).
10. VERMONT—Vt. Stat. Ann. tit. 13, §2305 (1959).*

* Apparently the statutes of New York, Oregon, Pennsylvania, 
and Vermont would allow shooting of fleeing burglary suspect, 
while the remaining states’ statutes are unclear.



30

Model Penal Code Jurisdictions*

1. ALASKA—Alas. Stat. §11.81.370 (1983)—Formerly
Alaska followed common law rule. See Alas. Stat. 
§11.15.090 (1970), repealed 1978.

2. ARIZONA— Âriz. Rev. Stat. Ann. §§13-409 and 410 
(West 1978)—^Formerly Arizona followed common law 
rule. See Ariz. Rev. Stat. Ann. §13-461 (Supp. 1972), 
repealed 1978; Wiley v. State, 19 Ariz. 346, 170 P. 869 
(1918).

3. COLORADO—Colo. Rev. Stat. Ann. §18-1-707 (1978) 
—Formerly Colorado followed common law rule. See 
Colo. Rev. Stat. Ann. §40-2-16.

4. DELAWARE—Del. Code Ann. tit. 11, §467 (1979).

5. HAWAII-Hawaii Rev. Stat. §703-307 (1976).

6. IOWA— l̂owa Code Ann. §804.8 (West 1979)—^Previ­
ously Iowa followed common law rule (former §755.8).

7. KENTUCKY—Ky. Rev. Stat. §503.090 (1975).

8. MAINE—Me. Rev. Stat. Ann. title 17A, §107(2) (B) 
(West 1983).

9. MINNESOTA—Minn. Stat. Ann. §609.066 (West Supp. 
1984)—Formerly Minnesota followed common law 
rule. See Minn. Stat. Ann. §609.065(3), repealed 1978.

10. NEBRASKA—Neb. Rev. Stat. §28-1412(3) (1979)
(former §28-839(3)).

♦Would prohibit shooting of fleeing burglary suspect unless 
force or weapon involved.



31

11. NEW HAMPSHIRE^N.H. Rev. Stat. Ann. §627:5(11) 
(b) (Supp. 1983)—Formerly New Hampshire followed 
common law rule. See former N.H. Rev. Stat. Ann. 
§627:5.

12. NORTH CAROLINA—N.C. Gen. Stat. §15A-401(d) 
(2) (1983).

13. NORTH DAKOTA—N.D. Cent. Code §12.1-05-07 (d) 
(1976)—^Forcible felony/Model Penal Code variant.

14. TEXAS—Tex. Penal Code Ann. tit. 2, §9.51 (a) & (c) 
(Vernon 1974).





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