Memorandum of Points and Authorities

    IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, father and 
next of kin of EDWARD EUGENE 
GARNER, a deceased minor.

Plaintiff,
vs •
MEMPHIS POLICE DEPARTMENT; CITY 
OF MEMPHIS, Tennessee; WYETH 
CHANDLER, Mayor of Memphis; JAY 
W. HUBBARD, Director of Police 
of Memphis; and E. R. HYMON, 
Police Officer of the City of 
Memphis,

Defendants.

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CIVIL ACTION 
NO. C-75-145

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

On Thursday, October 3, 1974, Ruth Ann Haywood of 748 
Vollintine, Memphis, Tennessee, noticed someone at the front door 
of the home of Louvenia Johnson who resided across the street at 
739 Vollintine. This person was next observed jumping over a 
fence and going around the house. A short time later Ms. Haywood 
heard glass break at the Johnson residence. Realizing that a 
burglary was taking place she went to the house of Daisy Bell Statts, 
737 Vollintine, and informed Ms. Statts of what had transpired and 
suggested that she call the police. Ms. Statts became very upset 
so Ms. Hay'.vocd called and informed the police of the break in and 
gave Ms. Statts' address of 737 Vollintine.

Thereafter the police dispatcher put out a bulletin that 
the suspect was inside the house at 737 Vollintine. A patrol car 
manned by Patrolman Wright and defendant Hymon responded and appeared 
at 737 Vollintine. Upon arrival Ms. Statts was seen pointing at 
739 Vollintine. Patrolman Hymon was then able to find out that 
tsomeone was breaking in the house. Patrolman Hymon went back to 
the squad car where he got his flashlight and informed his partner



what was happening. Patrolman Hymon then ran to the rear of the 
house where he heard a door slam, then a noise on the boundary 
fence in the back yard. He drew his gun and shined his flashlight 
on the fence. At this time Garner was seen at the fence and 
Patrolman Hymon called for him to "halt". Hymon turned to call 
to his partner. While he was doing this. Garner continued to 
climb over the fence to get to the other side. Noticing this 
Hymon took aim and fired one shot that struck Garner in the right 
side of the head. Hymon and his partner then called for an ambulance 
and proceeded to remove Garner from the fence on which he was draped.

The fire department ambulance arrived shortly thereafter 
and transported Garner to John Gaston Hospital where he was pronounced 
deed at 12:20 A.M., October 4, 1974.

A check of the house indicated that it had been ransacked 
and that certain property which was missing from the house was found 
among Garner's personal property.

At the time of this incident Defendant Hymon was using 
Remmington 125 grain jacketed hollow point bullets in his service 
revolver which said ammunition was furnished by the Memphis Police 
Department.

ISSUES INVOLVED

1. Whether defendant E. R. Hymon in the exercise of 
his judgment acted reasonably and used what he felt at the time to 
be the only practicable means available to prevent the escape of 
Edward Eugene Garner.

2. Whether the use of hollow point bullets by the Memphis 
Police Department is a violation of the constitution of the United 
States.

3. Whether the death of Edward Eugene Garner was a direct 
and proximate result of the hiring practices and training program 
implemented by defendants Chandler, Hubbard, City of Memphis and 
Memphis Police Department.



. A

STATEMENT OF LAW

The actions of defendant Hymon on this case are controlled 
by T.C.A. 40-808. He has a right to use force and prevent escape 
and effect the arrest. Beech and Melancon, 465 F2d 425 (6th Cir. 
1972); Memorandum Opinions; Wiley v. Memphis Police Department,
United States District Court for the Western District of Tennessee, 
Western Division, Civil Action No. C-73-8 (June 30, 1973).

In Cunningham v. Ellington, 323 F.Supp. 1072 (three 
Judge Court, W. D. Tenn., 1971) the panel sustained the constitu­
tionality of T.C.A. 40-808 and interpreted the statutes as follows:

"...this statute means, in the present context, 
that an officer may use force that may result in 
death in preventing the escape of a person that 
he is attempting to arrest if (1) he reasonably 
believes that the person has committed a felony and 
(2) he notifies the person that he intends to arrest 
him and (3) he reasonably believes that no means 
less than such force will prevent the escape. The 
parties also agree that, so construed, the statute 
merely states the common law."

The issue involving hiring practices, training procedures 
and the use of hollow point bullets are fact questions to be resolved 
by the Court based upon the proof. Defendants rely upon the Court's 
opinion in Beech v. Melancon, No. C-71-117 (November 16, 1971) and 
Wiley V. Memphis Police Department, supra, regarding training, 
practice and policies in connection with the use of lethal force.

Respectfully submitted.

Henry L. Klein,
Attorney for Defendants 
100 North Main Building 
Suite 3500
Memphis, Tennessee 38103

CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Memorandum 

of Points and Authorities has been served upon counsel for the 
plaintiff. Drew S. Days, III, 10 Columbus Circle, New York, New York

“  J  “



10019, and Walter Lee Bailey, Jr., 901 Tenoke Building, Memphis, 
Tennessee 38103, by mailing same to them at their offices by United 
States Mail, postage prepaid, this ______ day of July, 1976.

Henry L. Klein

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Dear Walter:
I think we have waited long enough for Henry Klein 
to make suitable arrangements for any deposition of 
Colletta. Would you indicate to Klein that we want 
to depose Coletta during the first week in June (if 
it fits your schedule) and will go to court if 
necessary to insure that he is present in Memphis 
at that time.
Let me know what happens.

Best regards.

Drew S. Days, III
DSD:mm