Brief for the Appellant

    i

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ts
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No. 83-1035

In The

&uprenii (Sourt of ItjE Hnilsii States
October Term. 1984

State Of Tennessee, 
Appeilant,

vs.
Cleamtee Garner. 

Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

BRIEF FOR THE APPELLANT

W illiam M. Leech. Jr.
Attorney General & Reporter 
State of Tennessee

Jerry L. Smith 
Assistant Attorney General 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439

l. Louis U w  Priming Co.. Inc.. 411 No. Taith Sires 63101 314-23!



giJKSI ION I’RKSI N I i:!)

Wlietlier Icnncsscc C ode Annotated Sec. 40 7 108 is un 
constitutional as repugnant to the lourtli and lourtcentir 
Aniendinents to the C'onslitulion of tlie United States?

LISI OI I’AIMII'S

The following parties appeared in the Court of Appeals:

Cleamtee Garner, as father and next of kin of fid 
ward Eugene Cjarner, a deceased minor,

(I’laintiff-appellant in the Court of Appeals, 
Appellee in this Couit in No. 83-1035, 
Respondent in this C ourt in No. 83-1070).

1 he State of Tennessee.

(Appellee in the Court of Appeals, Apirellant 
in this Court in No. 83-1035).

Ihe  City of Memphis; The Memphis Police 
Departntent,

Uefendants-appellees in the Court o( Ap­
peals, Petitioners in this Court in No. 
83 1070).



TAiii i: o i  CON I i :n I S

Page

Opinions Uclow................................................................ •
, 9Jurisdiction.......................................................................

Constitutional and Staluloi y Provisions Involved 2

Statement .........................................................................  ^

Summary of Argument....................................................  / ’

Argument

lennessee Code Annotated See. 40-7-lOR Is Not 
Unconstitutional Under The I'ourtli and Four- 
tecntli Amendments To The United States Con-

O
sliUition ...................................................................

(A) The Common Law Rule F.mbodied In 
Tennessee Code Annotated Sec. 40 7-108 Is 
Not Violative Of Hie Fourth Amendment 9

(If) In Declaring lennessee C'ode Annotated 
Sec. 40-7-108 Unconstitutional As Depriving 
I he Fleeing Felony Suspect Of Life Without 
Due Process Of Law Under The Fourteenth 
Amendment, Ihe  Court Of Appeals Inap­
propriately F.nnunciated A Constitutional 
Doctrine That Is More Appropriately A 
Policy Decision That Should Be Left To Ihe 
Legislatures......................................................

(C) The Due Process Clause Of The I our 
teenth Amendment Docs Not Rcipiirc Imposi 
tion Of The Rule Fimunciated By 1 he C ourt 
Of Appeals Solely Because The Historical 
Underpinnings Of 1 he Common Law Rule 
On Deadly Force I lave Changed >2



Conclusion........................................................................  19

TABLE OF AUTIIORITIFii

Page

Cases:

Aslicrofi V.  MaHis, 431 U.S. 171 (1977).........................  7,14

Bell V .  Wolfisli, 441 U.S. 520(1979)..........    18

Bivens v. Six Unknown Federal NarcoJics Agents, 403
U.S. 388(1971)......................................................... 10,12

Chimel V. California, 395 U.S. 752(1969) .....................  6,9

City of Columbus v. Fraley, 41 Ohio St.2d 173, 324
N.E.2d 735 ................................................................  II

Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.
Term. 1971)..............................................................  15

Garner v. Memphis Police Department, 600 E.2d 52
(6th Cir. 1979)........................................................... 5

Hilton V .  State, 348 A.2d 242 (Me. 1975).......................  15

Jenkins V .  Averett, 424 F.2d 1228 (4th Cir. 1970).......... 13

Jones V.  Marshall, 528 F.2d 132 (2nd Cir. 1975)........7,14,17,18

Kortum v. Alkine, 69 C.A.3d 325, 138 Cal. Rptr. 26
(1977)........................................................................  14

Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir.
1980).......................................................................... >0

Lovev. Bass, 145 Tcnn. 522, 238 S.W. 94 (1921)............ 8,11

Mattis V.  Schnarr, 547 F.2d 1007 (8th Cir. 1976)........7,14,15,16

Miller V .  State, 462 P.2d 421 (Alaska 1969) ..................... 12

Minccy V.  Arizona, 437 U.S. 385 (1978).........................  6,10

Monell V .  Department of Social Services, 436 U.S. 658,
98 S.Ct. 2018, 56 E l d.2d 611 (1978) -5

Monroe V.  Pape, 356 U.S. 167(1961) .............................................  Id

Keneau v. Slate, 701enn. 720(1879) 8

Scarborough V .  Slate, l68Jenn. 106(19.34)............................... 8,11

State V.  Boles, 598 S.W.2d 821 (Tenn. Crim. App.
1980).........................................................................  II-"

Slate v.Mulvihill, 57 N..I. 151, 270 A.2d 277 (1970) . . . .  12

Slate V.  Peters, 450 A.2d 3.32 (Vt. 1982) H

Stale V.  Richardson, 95 Idaho 446, 511 P.2d 263 (197.3) . 12

Stale V.  Sundberg, 611 P.2d 44 (Alaska 1980) 14

Terry V .  Ohio, .392 U.S. I (1968) ..................................... '0

Wiley V.  Memphis Police Department, 548 l-.2d 1247 
(6lh Cir. 1977)..........................................................

Federal Slalulorv Authorities:

I'ourth Amendment, U.S. Constitution 2,6,8,9,10

I ourieenlh Amendment, Sec. I, U.S. Constitution .2,5,6,8,16

28 U.S.C. § 12.54(2).......................................................... ^

28U.S.C. § 1331 .............................................................

28 U.S.C. § 1343(3)..........................................................

28 U.S.C. § 240.3(c).......................................................... -

42 U.S.C. § 1981 .............................................................

42 U.S.C. § 1983 .............................................................



42U.S.C. § 1985 ..............................................................  ^

42U.S.C. § 1986 ..............................................................

42U.S.C. § 1988 ..............................................................  ^

Slate Slalulory Aulhorillcs:

Iowa Code §804.8 ............................................................  ^

Minn. Stal. Ann. §607.7 ..................................................  ^

Tennessee Code Annotated Sec. 40-7-108 ....................... passim

Other Aiithorllies:

Alaska Stat. § 11.81.370 ..................................................  ^

Comment, Deadly Force to Arrest: Triggering Consti­
tutional Review, II Harv. Civ. Rights - Civ. Lib.
I . Rev. 360, n .30(1976)........................................... ®

5 W. Ulackstone, Commentaries at 292 (1803) (Tucker
......................................................................  ^

Model Penal Code Sec. 3.07(2)(b)...................................

Mogin, The Policeman’s Privilege to Shoot a Fleeing 
Suspect: Constitutional Limits on the Use of Dead­
ly Force, 18 Am. Crim. L. Rev. 533 (1981) ............ 9,19

II Pollock and Maitland, History of English Law, 
464-466, (2d. Ed. 1959)............................................

Ringel, Searches and Seizures, Arrests and Confessions,
§23.7,pp. 23-29 (2ed 1982) ..................................... »

Sherman, Execution Without Trial: Police Homicide
and the Constitution, 33 Vand. L. Rev. 71 (1980).. 17

Tentative Drafts Nos. 8, 9, and 10, Model Penal Code,
pp. 60-61....................................................................

No. 83-1035

In Till

^luucinc (fliuiH Ilf life llnitcii g>Uilcfi
Oc lOlU R fERM, 1984

S i a m  Or TiNNisst r .  
Appellant, 

vs.

Cl I AMii E G arner. 
Api>ellee.

On Appeal from llic llnilcd Stales Court ol Appeals 
lor the Sixth Circuit

B K IliK  F O R  T H E  A P P E L L A N T

OPINIONS BELOW

The opinion of the United States Court of Appeals for the 
Sixth Circuit, holding Tennessee Code Annotated See. 40-7 108 
unconstitutional, was entered on June 16, 1983, and is repoiled 
at 710 F.2d 240 (6lh Cir. 1983). (JS. App p. A-1).* A sugges­
tion for Rehearing En Banc was denied on September 26, 1983, 
and the order doing so is unreported. (JS. App. p. A 17).

* Reference to dociimculs previously primed in the appendices to 
(he Jurisdictional Stalement in 83-1035 or the Petition For A Writ of
Certiorari in 83 1070 will be referred ioas(JS. App. p . ----- )and(l el.
App. p . ___ ). respectively.



The opinion of ihe United Slates District Court for the 
Western District of Tennessee, after remand, dated February 
29, 1980, and upholding the constitutionality of Tenn. Code 
Ann. §40-7-108, is unreporicd. (Pet. App. p. A-20).

The opinion of the United Stales Court of Appeals for the 
Sixth Circuit entered in the first appeal of the instant case is 
reported at 600 F.2d 52 (6lh Cir. 1979). (Pet. App. p. A-15).

The memorandum opinion of the United States District 
Court for the Western District of Tennessee entered in Ihe 
original trial of Ihe instant case and dated September 29, 1976, 
is unrcporled. (Pel. App. p. A-1).

JURISDICTION

I he judgment of the court of appeals declaring Tenn. Code 
Ann. §40 7-108 unconstitutional was entered on June 16, 1983. 
(JS. App. p. A-l). A Suggestion for Rehearing En Banc was 
denied on September 26, 1983. (JS. App. p. 17). Notice of Ap­
peal to this Honorable Court was filed on October 26. 1983. 
(JS. App. p. A-18). This Court entered an order noting pro­
bable jurisdiction on March 19. 1984. The jurisdiction of this 
Court rests upon 28 U.S.C. §1254(2).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

Fourth Amendment, United States Constitution:

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants shall 
issue, but upon probable cause, supported by oath or affir­
mation. and particularly describing Ihe place to be search­
ed, and the persons or things to be seized.

Fourteenth Amendment, Sec. 1, United Stales Constitution:

All persons born or nauirali/cd in the United Stales, ami 
subject to Ihe jurisdiction thereof, are citizens of the 
United Stales and of the slate wherein they reside. No 
stale shall make or enforce any law which shall abridge ihc 
privileges or immunilies of citizens of the United Stales; 
nor shall any stale deprive any person of life, liberty, or 
properly, without tine process of law; nor deny lo any per 
son within its jurisdiction ihe erpial protection ol the laws.

Tennessee Code Annolaled Sec. 40-7-108:

Resistance of Officer -  If, after notice of the intention lo 
arrest the defendant, he cither Bee or forcibly resist, the of­
ficer may use all the necessary means lo effect Ihe arrest.

ST AT EM I ,NT

On Ihe night of October 3. 1974. police were called lo a 
residence at 739 Vollinline in Memphis, l ennessec. Upon their 
arrival, the officers dispatched to Ihe residence wcnc informed 
by a neighbor that ‘•they are breaking in” . Oneolliccr repotted 
to his dispatcher while the other went toward the rear of the 
house. As he approached the back corner of the house, the of­
ficer heard a rear door slam and saw with the aid of a Hashlight. 
Ihc figure of a black male crouching next lo a fence thirty (30) to 
forty (40) feel away. The officer was unable lo ascertain 
whether Ihe man was armed. (Pel. App. pp. A 2 A 4).

The officer shouted to the suspect to ” hall” and he identified 
l.imseir The suspect, after a momentary pause, leaped to the 
top of Ihe fence; and. with half his body over the top. the ol- 
ficer fired, fatally wounding Ihe suspect. The officer slated he 
fired because he knew he would be unalbe to appiehend the 
suspect in any other manner. The officer was unfamiliar with 
the neighborhood and the leirain. was having difliculty getting 
through Ihc clullercd back yard and because ol his size and 
cduipment. he did not think he could scale the lence which was 
six (6) to seven (7) feel high. The officer indicated it was dark



and lie was concerned about the possibility of an armed ac­
complice in the residence. (Pet. App. pp. A-3, A-4, A-6, 
A-IO A ll)

The suspect who was killed turned out to be riftccn (15) year 
old Eugene Garner. Garner was unarmed and bad a small 
amount of money and jewelry from the residence on bis person. 
Hie residence was unoccupied at tbe time of tbe break-in 
altbougb this was unknown to officers at tbe time of tbe 
sbooting. (Pet. App. p. A-5. A ll)

On April 8, 1975, Cleamtee Garner, tbe father of Eugene 
Garner, brought tbe instant action in tbe United Stales District 
Court for tbe Western District of Tennessee pursuant to 42 
U.S.C. §§ 1981, 1983, 1985, 1986, 1988, and 28 U.S.C. §§1331, 
and 1343(3), seeking redress for the fatal shooting of Eugene 
Garner. Named defendants in the lawsuit were the Memphis 
Police Department; tbe City of Memphis, Tennessee; Wyeth 
Chandler, Mayor of the City of Memphis; Jay W. Hubbard, 
Director of Police for the City of Memphis; and E. R. Hyman. 
Police Officer of the City of Memphis. (App. pp. 4-6).

The suit alleged that Officer Hyman violated the constitu­
tional rights of Edward Eugene Garner when Hyman shot and 
killed Garner in an attempt to apprehend him as Garner Red 
from the burglary of a private residence at 739 Vollintine, Mem­
phis. Tennessee. The remaining defendants were joined on the 
grounds that their failure to exercise due care in the hiring, 
.raining, and supervision of defendant Hyman made them 
equally responsible for Garner’s death and all defendants were 
sued on the grounds that their use or authorization to use the 
••hollow point” bullet further caused the deprivation of 
Garner’s rights under the Constitution and Laws of the United 
States. (App. p. 6-19).

Trial was held on August 2-4, 1976, before the United Slates 
District Court for the Western District of Tennessee, the 
Honorable Harry W. Wciford, Judge, silting without the m-

icrveiition of a jury. Al the conclusion of the ['laiiilill’s proof 
on August 4, 1976, the district court granted a directed verdict 
for defeiidants Hubbard and Chandler, and a partial directed 
verdict as to the City of Memphis and the Memphis Police 
Departnicnl with respect to hiring practices.

On September 29, 1976. the district court found in favor of all 
defendants oti all issues. On appeal, a panel of the United 
States Court of Appeals for the Sixth Circuit affirmed the judg­
ment of the district court dismissing the case against the in­
dividual defendants. However, the case was remanded as 
against the City of Memphis for reconsideration in light of this 
Court’s opinion in Monell i’. Depiviment o f Social Services. 436 
U.S. 658. 98 S.Ct. 2018. 56 l..Ed.2d 611 (1978). .SVe.- Gamer v. 
Memphis Police Departmetu, 6(X) F.2d 52 (6th Cir. 1979). (Pet. 
App. pp. A-1 - A-19).

On remand, the district court entered an order in favor of the 
City of Memphis and determined inler alia that leniiessec Code 
Annotated Sec. 40-7-108 was not violative of the eruel and 
unusual punishment prohibitions of the Eighth Amendment to 
the Constitution nor did the statute violate the due process pro 
visions of the rourleenth Amendment to the Conslilution. 
(Pet. App. pp. A-20 - A-30).

Plaintiff-appellee again appealed to the United States Court 
of Appeals for the Sixth Circuit. During the pendency of this 
second appeal, the Clerk of the Court of Appeals notified the 
Office of the Attorney General of lennessee that Tennessee 
Code Annotated Sec. 40-7 108 was under constitutional attack. 
ITespite the provisions of 28 U.S.C. §2403(0. no prior notice o( 
such an attack had been affoided the Office of the Attorney 
General of Tennessee. Pursuant to 28 U.S.C. §2403(0. the 
State of Tennessee, through the Office of the Attorney General, 
filed a motion to intervene in this case lor the pu.pose of defen­
ding the constitutionality of Tennessee Code Annotated Sec. 
40-7-108. The United States Court of Appeals for the Sixth C ir



cuil grained ihe Stale of Tennessee’s motion to intervene and 
permitted the State to file a brief on the issue. (JS. App. pp.
A I. A l l ,  A-12).

in an opinion delivered by the Honorable Gilbert S. Merritt, 
the United States Court of Appeals for the Sixth Circuit deter­
mined that Tennessee Code Annotated Sec. 40-7-108 was 
violative of the Fourth and Fourteenth Amendments to the 
United Stales Constitution. The panel of the Court of Appeals 
found that in so far as the .statute would permit the use of dead­
ly force against a non-dangerous fleeing felony suspect fleeing a 
non-violent felony, the statute permitted an unreasonable and 
excessive seizure of the person. The panel also held that the due 
process protections of the Fourteenth Amendment prohibit the 
use of deadly force to apprehend a non-violent fleeing felony 
suspect. The case was remanded for further proceedings consis­
tent with the opinion. (JS. App. pp. A-1 - A-16)

The Stale of Tennessee filed a Suggestion for Rehearing En 
Banc in a timely fashion. Rehearing en banc was denied on 
September 26, 1983. Notice of Appeal to this Court was Filed 
October 26. 1983. This Court noted probable jurisdiction on
March 19, 1984.

SUMMARY OF ARGUMENT

(A)

The Fourth Amendment must be read largely as a reaction to 
abuses suffered by the colonists before the adoption of the Con­
stitution. See: Chimel v. California, 395 U.S. 752. 760, 761 
(1969). The common law rule respecting the use of deadly force 
was ell recognized at the lime of the adoption of the Constitu­
tion and has coexisted with the Fourth Amendment until the in­
stant decision of the Court of Appeals. This belies any argu­
ment the Fourth Amendment was ever intended to prohibit the 
use of necessary deadly force to arrest for a felony. Traditional 
F o u rth  A m endm ent analy sis  in de term in in g  
••unreasonableness” has focused on arbitrariness in the govern­

ment’s intrusion or Ihe necessity of the scope of it. lenncsscc 
Code Annotated .Sec. 40-7 108 is sufficiently narrow to prohibit 
the arbitrary or unnecessary use of deadly foice. Ihe C ourt of 
Appeals takes the unprecedented course of relating Fourib 
Amcndincnl protections to the gravity of the crime involved a 
course Ibis Court has previously rejected. Sec: Mincey v. 
Arizona, 437 U.S. 385. 393 (1978).

(»)
Almost every case which has previously considered the con- 

slit ulionalily of the common law rule respecting the use of dead 
ly force as a last resort to effect an arrest, which is embodied m 
Tennessee Code Annotated Sec. 40-7-108. has upheld the validi­
ty of the rule in the face of a due process attack correctly con­
cluding that the legislative branch of government is the proper 
forum to address to what extent the needs of effective law en­
forcement can be accomodated by more restrictive deadly force 
policies. Sec.- e.g. Jones v. Marshall, 528 F.2d 132 (2nd Cir. 
1975) Only one case has stricken a statute such as Tennessee s 
on due process grounds. Manis v. Schnarr, 547 F.2d 1007 (8th 
Cir. 1976), vacated as moot per curiam sub nom. Ashcroji v. 
MaUis, 431 U.S. 171 (1977). Because of its ultimate disposition 
as moot Manis is of only limited precedential value,

(C)

While the historical circumstances surrounding the origin of 
the common law rule respecting the use of deadly lorcc may 
have changed, the Stale retains compelling mleresis m the ap­
prehension of criminals which can only be served through the 
Uuly effective power of arrest. Thus, the me.e diange m 
historical circumstances docs not warrant a const.tuiiona doc­
trine rennouncing the use of deadly force m all but 
threatening arrest situations, thereby giving some felons m el- 
fecl the right to escape arrest.



ARGUMENT

I cniiessee Code Annotated Sec. 40-7-108 Is Not laclally Un­
constitutional Under The Fourth and Fourteenth Amendments 
To The United States Constitution.

Tennessee Code Annotated Sec. 40-7-108 permits police of- 
ricers to use whatever force is reasonably necessary to effect the 
arrest of a suspect when police have probable cause to believe 
the suspect has committed a felony. The statute has been inter­
preted by the Tennessee courts to permit an officer to use deadly 
force as a last resort to effect a lawful arrest of a Heemg felon 
when no other means of apprehension is available; but, if the 
deadly force is unreasonably excessive to effect the cainure of 
the suspect, then the officer may be subject to criminal liability. 
Scarborough v. State. IbSTenn. 106(1934); Reneau v. State 70 
Tenn 720 (1879); Love v. Bass, 145 Tenn. 522. 238 S.W. 9 
(1921)- State v. Boles. 598 S.W.2d 821. 823 (Tenn. Crim. App. 
1980).’ The Court of Appeals held the statute to be facially un­
constitutional as permitting an unreasonable seizure of the per­
son because the statute and case law made no differentiation 
between violent and non-violent nceing felons. The Court ol 
Appeals held that the Fourth and Fourteenth Amendments re- 
(,uirc not only probable cause to arrest a felony suspect, but also 
probable cause to believe the suspect is dangerous, or has com- 
.nitted a violent felony before deadly force may be used to effect 
tbe apprehension, even though the application of deadly force is 
necessary if the suspect is to be apprehended.

Sec 40-7-108 appears to be a codification of the common law 
rule with respect to the use of deadly force to effect an aaest. 
Despite movement in several jurisdictions to a more restrictive 
rule of law in this area, adherence to the common law rule is still
widespread.’

■ Ringcl. Searches and Seizures. Arrests and Confessions. J . PP  ̂
23-29 (2ed 1982); and Comment. Deadly Force to Arrest: Tnn^r,n,>

(A) 1 he common law rule embodied in Tennessee Code An- 
notiilcd Sec. 4(1-7-108 Is not violative of the Fourth Amend- 
nieiit.

In declaring Sec. 40-7-108 unconstitutional as violative of the 
Fourth Amendment, and positing a constitutional doctrine rc- 
cpiiring police to have probable cause to believe the fleeing 
felony suspect is dangerous or has committed a violent felony, 
the Court of Appeals has undertaken an unprecedented inter­
pretation of Fourth Amendnicnt protections. The common law 
rule respecting the use of deadly force was apparently the rule of 
law in Kngland at the time of publication of the lust edition of 
niackstone’s Commentaries. See: 5 W. Blackstone, Commen­
taries at 292 (1803) (Tucker Fd ); and was apparently well 
recognized at the time of the adoption of the United States Con 
stitution. Mogin. The Foliceman’s Privilege to Shoot a I teeing 
Suspect: Constitutional Limits on the Use of Deadly f  orce, 18 
Am. Crim. L. Rev. 533. 550 (1981). The long history of the 
common law rule’s coexistence with the Fourth Amendment is 
of particular significance since the Fourth Amendment must be 
read in light of the abuses felt by the colonists to which the 
amendment was a reaction. Chimel v. California, 395 U.S. 752, 
760, 761 (1969). Yet until the decision of the Court of Appeals 
i.i tiie instant case, no court, of which the appellant is aware, 
has held the common law rule respecting the use ol deadly force 
runs afoul of the Fourth Amendment. Appellant submits this 
belies any argument the framers of the Constitution felt the 
common law rule respecting the use of deadly lorce was an 
abuse of government power

Constiliiiional Review, II llarv. Civ. Rights Civ. Ub. F. Rev .
368 n 30 (1976); both inrlicate twenty-four (24) .slates adhere to I le 
common law rule. However. Alaska. Minnesota, and Iowa apPear
have amended their statutes to rellect a 8
force to arrest. 5ee. Alaska Stat. §11.81.370; Iowa Code §804.8.
Minn. Stat. Ann. §607.7.



It is ccr«ainly true lhat the Fourth Amendnienl protects in­
dividuals from “ unreasonable” seizures by police using the 
power of arrest. Bivens v. Six Unknown Federal Narcoiics 
AKems, 403 U.S. 388 (1971); Terry v. Ohio. 392 U.S. 1 (1968); 
Monroe v. Pape. 365 U.S. 167 (1961); Landrigan v. Ciiy o f  
iForwick. 628 F.2d 736 (1st Cir. 1980). However, the 
“ reasonableness” under the Fourth Amendment of the seizure 
of a person appears to have traditionally been evaluated in 
terms of whether the police action was arbitrary, or the 
magnitude of the action was necessary in relation to the state tn- 
terest served by the police conduct. .W. e.g. Terry v. Ohio, 
supra, indicating brief seizure of suspect not arbitrary where 
there are reasonable grounds to believe criminal activity afoo 
and suspect is armed. Under Terry, a limited detention and 
search of the suspect for weapons is reasonable as necessary to 
protect the safely of officers and others.

nm in the instant case, the Court of Appeals judges the 
“ reasonableness” of a seizure by the use of deadly force on the 
basis of the gravity of the crime. Thus, the Court of Appeals 
engages in a Fourth Amendment analysis m the instant case 
v l̂iich is both unprecedented and unwarranted. By relating 
I ourih Amendment piotcctions to the gravity of the crime t te 
0 „„, or Appear, opens ,  door .r,is Con,, has 
unwilling to lake. Mincey v. Arizona. 437 U.S. 385. 3VJ 
18 Am. Crim. L. Rev. 533 at 545 (1981).’

■ Oespitc its analysis in relating Fourth Amendinent 
,he graliiy of the crime involved, the Court of ^PP'**'* 
narcnlly allow the use of deadly force as a last resort to effect the p 
prehension of a suspect fieeing a relatively minor 
volving violence, or to effect the arrest of an armed suspect nceing 
some other relatively minor non-violent felony. On the other «*'
married suspect fieeing a non-violent felony, though one deemed

X : .  rnoTah b, stkL ,  ,n rnrri, irnarbr P— "  
treason or a triggering offense for
escape if he cannot be captured other than through deadly force.

I he common law rule crHlilied by Sec. 40-7-108 is siilliciciit 
to protect the fieeing felon from the arbitrary or unnecessary 
police intrusions against which the 1 ourih Aincndmcnt slaiuls 
guard. 1 he statute permits an officer to use deadly force to ef­
fect a seizure of the person only if; (I) the officer has probable 
cause to believe the person fieeing has committed a felony, (?) 
the officer notifies the person fieeing that he intends to aiiest 
the person. (3) the officer reasonably believes that no means less 
than deadly force can be used to prevent the escape of the per­
son fieeing. See: Sanhorou^h v. Stale, supra; Love v. Bass, 
supra; Slate v. Boles, 'lupra.

The statute itself, therefore, insures that deadly force is not 
used by police arbitrarily or unnecessarily in effecting a lawlul 
arrest. To conclude the Fourth Amendment requires as a 
precondition to the use of deadly lorce to effect an arrest, pro­
bable cause to believe the suspect is dangerous or has committed 
a violent felony ignores the practicalities of an arrest situation 
such as the instant case. The opinion offers no suggestion as to 
how officers who answer a call to a felony in progress, in the 
nighttime, in a situation requiring split-second decision making 
if the suspect is to be apprehended, are to gather sufficient in 
formation to establish probable cause to believe a fleeing 
suspect is dangerous or has committed a violent felony. The 
need to reduce violence in our society would be belter served by 
the peaceful submission to arrest by suspects who have good 
reason to know the person seeking to arrest them is a law cii 
forcemeni officer engaged in the performance of his duties, 
rather than by a constitutional doctrine which provides the op­
portunity for the swift felon to escape. See: Stale v. Peters. 450 
A.2d 332 (Vt. 1982); City o f Columbus v. Fraley. 41 Ohio St.2d

opinion also leaves open the possibility that in the biiure all police ap­
plications of force, deadly or not. will be measured for their 
reasonableness not by the necessity for the force but by the gravity of 
the crime involved.



173, 324 N.E.2d 735, cert. den.. 423 U.S. 872 (1975); Slate v. 
Richardson, 95 Idaho 446. 511 P.2d 263 (1973). cert, den., 414 
U.S. 1163 (1974); Stale v. Mulvihill, 57 N.J. 151, 270 A.2d 277 
(1970); Miller v. Slate, 462 P.2d 421 (Alaska 1969); all in­
dicating needs of a peaceful, law-abiding society promoted by 
peaceful submission to arrest by law enforcement officers.

As Professor Waite of the Model Penal Code’s Advisory 
Comnutlee noted in dissenting from the Model Penal Code’s 
restrictive deadly force provisions;

only through truly effective power of arrest can law be 
satisfactorily enforced. obviously until violators are 
brought before the courts the law’s sanctions cannot be ap­
plied to them . . . {Ejffectivcness in making arrests requires 
more than merely pitting the footwork of policemen 
against that of suspected criminals.

Tentative Drafts Nos. 8. 9. and 10. Model Penal Code. pp. 
60 61.

Once a decision to arrest has been made by police, the citizen 
can legally do very little if anything to prevent government ac­
tion to effect the arrest. See: Bivens v. Six Unknown Federal 
Narcotics Agents, 403 U.S. 388. 394, 395 (1971). Thus the 
Eourth Amendment should stand guard against the unnecessary 
use of excessive force to effect the arrest. But the fleeing felony 
suspect can do a great deal to prevent the application of deadly 
force: he can stop his Bight and peacefully submit to a lawful 
arrest thereby forestalling the necessity to use deadly force. The 
ficedom from arbitrary and unnecessary interference from the 
government that the Fourth Amendment confers on citizens 
cannot reasonably be said to encompass a chance to outrun any 
police officer who lawfully attempts to apprehend him. To con­
clude otherwise grants an immunity to the Beeing felon he does 
not deserve, and results in society’s sufferance of a risk it does 
not deserve.

I hc opinion of the court of appeals in the inslaiit case cites 
.lenkins v. Averell, 424 F.2d 1228 (4th Cir. 1970); as the only 
case found by the cotirt discussing Eourtli Amendment limita­
tions on the use of deadly force to capture a llccing suspect. 
But, Jenkins does not begin to suggest the constitutional doc­
trine posited by the court of appeals in the instant case. In 
Jenkins, the fleeing suspect was unreasonably seized within the 
meaning of the Fourth Amendment for two (2) reasons. I itst, 
the facts of the case lead to the conclusion that officers had no 
probable cause to interfere with .lenkins’s freedom of move­
ment at all and thus had no lawful right to arrest him using any 
level of force. Secondly, the use of deadly force was both 
reckless and excessive because it was apparently not necessary to 
capture him. Ihus. Jenkins docs not deal with the situation 
prcseirtcd in the instant case. i.e. a Beeing suspect whom officers 
have probable cause to believe has committed a felony, and who 
cannot be apprehended other than through the use of deadly 
force.

For the foregoing reasons, the State respectiully subnrits that 
Tennessee Code Annotated Sec. 40-7-108 which permits the use 
of deadly force only as a last resort to capture a Beeing felony 
suspect is not violative of the Fourth Amendment to the Con 
stitution.

(B) In decitrring Tenn. Code Ann. Sec. 40-7-108 iinemistitu- 
liunnl «s depriving the fleeing felony suspect of life without due 
process of law under Ihc l ourleenth Amendment, Ihc Court of 
Appeals inappropriately ennunciated a constitutional doctrine 
that is more appropriately a policy decision that should be left 
to the legislatures.

The Court of Appeals in the instant case held Sec. 40 7 108 
facially invalid under the due process clause of the Fourteenth 
Amendment. The court determined that in less than life 
threatening confiontations with police, the State has no com­
pelling interest that would permit officers to use deadly force to



apprehend a fleeing felony suspeci, i.e. deprive the suspect of 
his life without due process of law. The State respectfully sub­
mits the statute is not facially unconstitutional on this basis.

Almost every case which has previously considered the con­
stitutionality of statutes similar to Sec. 40-7-108, or indeed Sec. 
40-7-108 itself, on due process grounds has upheld the constitu­
tionality of the statutes. Only the Eighth Circuit case of Maliis 
V. Scfwarr, 547 F.2d 1007 (8th Cir. 1976), vacated as moot per 
euriatn sub noni Ashcroft v. Mattis, 431 U.S. 171 (1977), reh. 
den.. 433 U.S. 915, is in accord with the holding of the Court of 
Appeals in the instant ca.se.’

In Jones v. Marshall. 528 F.2d 132 (2nd Cir. 1975); the court 
upheld the validity of the Connecticut common law rule concer­
ning the use of deadly force, which is virtually identical to Tenn. 
Code Ann. Sec. 40-7-108. Although expressing a belief that the 
privilege to use deadly force should as a matter of policy be 
restricted to situations where there is a violent crime or the flee­
ing suspect poses a serious threat of danger, the court declined 
to elevate this belief to a constitutional mandate. The court 
noted that the long history of the common law rule, the ready 
availability of weapons in our society, the widespread presence 
of violence and the changing needs of law enforcement made 
the policy decision one most properly entrusted to the 
legislatures where these factors could be weighed and debated.

On a previous occasion, the Sixth Circuit Court of Appeals 
has considered the constitutionality of Sec. 40-7-108 and has

• In Koriutn v. Alkine. 69 C.A.3d 325, 13R Cal. Rptr. 26 (1977); 
Stale V. .Sandberg. 611 P.2d 44 (Alaska 1980); the state courts inter­
preted their deadly force statutes to be limited in application to those 
Oeeing violent felonies, or life-threatening situations but these courts 
did so on stale law bases.

upheld its validity.* In fl'i/er v. Memphis Polar Deparimeni. 
548 F.2d 1247 (6(h Cir. 1977); the Sixth Circuit found Sec. 
40-7-108 (formerly §40-808), to comport with due process and 
roundly critized the contrary holding in Mains v. Schnarr, 
supra, as extending unwarrnnted protection to the felon at the 
expense of the public. Ilccanse the abolition of the privilege to 
use deadly force in certain felonies thereby allowing some felons 
to escape had such a serious impact on the protection of the 
citizenry, the Sixth Circuit at the time of MV/er thought the 
question of the privilege to use deadly force one better left for 
the legislative branch. 548 l'.2d at 1252. .See also: Cunningham 
V. Pllingion, 323 F.Supp. 1072 (W.D. Tenn. 1971) (three-judge 
court); upholding the constitutionality of Tennessee’s deadly 
force rule.

Ill Hilton V. State, 348 A.2d 242 (Me. 1975); the Supreme 
Judicial Court of Maine reversed the holding of a lower ap 
pellate court which abrogated the common law rule c>f Maine 
with regard to the use of deadly force to arrest in favor of the 
Model Penal Code’s more restrictive deadly force policy.' In 
holding such public policy changes were better left to the 
legislature, the court said of the actions of the lower court;

In effect, it undertook to formulate a new public policy for 
the State of Maine in an area in which the delicacies of the 
balancing of values, the strongly held differing attitudes 
among segments of the populace and the potential for

* Despite prostestalions lo the contrary in the opinion of the Court 
of Appeals in the instant case, the Sixth Circuil case cited in the text 
above clearly upholds the constitulionalily of Sec. 40-7-108 in the face 
of a due process attack.

’ See: Model Penal Code See. 3.07(2)(b); restricting use of deadly 
force to violent felony situations or where there is substantial risk of 
violence by suspect if apprehension is delayed.



enormous impaci upon the public welfare strongly point to 
the propriety of judicial restraint, and an acknowledge­
ment that inadequacies, if any, in the common law as 
presently operative should be left to the Legislature to 
evaluate and remedy.

348 A.2d at p. 245.

In Mams 1’. Schnarr, supra, the Eighth Circuit Court of Ap­
peals by a single vote in an en banc hearing held a Missouri 
statute similar to Sec. 40-7-108 to be violative of the due process 
clause of the Fourteenth Amendment in ,so far as it would per­
mit the use of deadly force against fleeing felony suspects who 
were ultimately determined to be non-dangerous. In a strongly 
worded well-reasoned dissent three (3) judges of the Eighth Cir­
cuit found the question of when deadly force should be applied 
was one of public policy that should be entrusted to the 
legislature, not made a rule of constitutional magnitude. The 
dissent also pointed out that such a rule of constitutional law 
placed extraordinary burdens on police in emergency situations. 
In discussing the standard ennunciated in Matiis for the use of 
deadly force, which is similar to the one announced by the 
Court of Appeals in the instant case the dissent, per Chief Judge 
Ciibson staled:

This standard presupposes that law enforcement officers 
are endowed not only with foresight, but also with that 
most characteristic judicial vision, hindsight. 1 he ntajorily 
docs not suggest how law enforcement officers are to make 
the on ilie-spol consilulional analysis called for by its pro­
posal and still react quickly enough to meet the exigencies 
of an emergency situation. How can a police olficer ever 
know, reasonably or otherwise, whether the felon will use 
force against others if not immediately apprehended? It is 
clearly the perogalive of the stale legislatures to decide 
whether such restrictions on the use of deadly force are 
consonant with public policy.*

• 547 I 2(J ai 1023.

The stale’s interests in this area it is respectfully submitted arc 
compelling, and include effective law enforcement, the ap­
prehension of criminals, the prevention of crime and protection 
of the general public.' Fhe ready availability of handguns in 
our society and widespread violence indicate that to what extent 
the state’s interest can be served while protecting the fleeing 
felon’s right to life is a matter better entrusted to the state 
legislatures, than made a rule of constitutional law to which all 
states would be subject.*

(C) The rliie process clause of the Fourteenth Amendineiit 
does not require iiuposilioii of the rule ennunciated by the 
Court «>f Appeals solely because fhe historical underpinnings of 
fhe common law rule on deadly force have changed.

The opinion of the Court of Appeals takes as its premise for 
promulgating a constitutional doctrine on the use of deadly 
force to arrest, that the historical underpinnings surrounding 
the growth of the common law rule on deadly force have chang­
ed.’ (IS. App. p. A 8). It is true that some scholars have sug­
gested that the common law nde regarding the use of deadly 
force had its origin at a time when only violent crimes were 
felonies and all were punishable by death.” The Court of Ap 
peals reasons that because this is no longer the case with 
felonies, evolving standards of decency require a constitutional 
doctrine renouncing the use of deadly force except for felonies 
police have probable cause to believe involve violence or 
danger." (JS. App. p. A-8)

’ Id.

* Jones V. Marshall, 528 F.2d 132, 140.

’ 710 F.2(l at 243-245.

” II Pollock and Maitland, History of English Law, 464 466, 
578 Rt) (2d. Ed. IV59); Sherman, Execution Without Tnal: Police 
Homicide and the Constitution, 33 Vand. E. Rev. 71 (1980).

■' 710 F.2d at 244.



This reasoning assumes that ihe application of deadly force to 
arrest is really punishment. As such, it can only be imposed 
without due process guarantees such as a trial when there is a 
threat to life. But if the killing of a non-violent fleeing felony 
suspect deprives the supect of constitutional guarantees, it docs 
so no less with the Beeing violent offender." Yet no one serious­
ly argues that police should not be privileged to use deadly force 
to arrest in a situation Bought with actual violence or the poten­
tial violence. I  he answer to this arguntent is that the use of 
deadly force as a last resort to effect the arrest of a fleeing felon 
is not punishment. The resultant disability to the Beeing 
fugitive is imposed not for the purpose of punishing him, but as 
a necessary incident to the government’s compelling interests m 
the apprehension of criminals, the prevention of crime and the 
protection of the public. This Court has previously indicated 
that not every pre-trial disability imposed on a criminal suspect 
is punishment; the test is whether the disability is imposed for 
the purpose of punishment or for the vindication of some other 
legitimate governtnent interest. Dell v. Wolftsh, 441 U.S. 520, 
5.17, 538 (1979).

Appellant does not mean to suggest that because the applica­
tion of deadly force is not punishment it can be arbitrarily or 
unnecessarily utilized. But Sec. 40-7-108 as interpreted by the 
1 ennessee courts restricts the use of such force only to when it is 
necessary to effect the apprehension. This necessity is often 
created by the felon himself who refuses to peacefully submit to 
a lawful arrest. It is respectfully submitted the limited cir­
cumstances under which Sec. 40-7-108 itself permits the use of 
deadly force are sufficient to adequately accommodate Ihe Bee 
ing suspect’s right to life; the suspect has but to obey the order 
to hall to prevent the use of deadly force.

•> Jones V. Marshall, supra, 528 F.2d at 136 n.9., rejecting the 
reasoning adopted by the Court of Appeals in the instant case.

A change in the historical factors giving origin to the common 
law rule does not mandate the adoption of the conslilulional 
doctrine announced by the Court ol Appeals, lo  adopt that 
deadly force doctrine gives Ihe felon an unjustified opportunity 
to escape apprehension, while failing lo sullicicnily accom- 
inodale the compelling interests of the slate in apprehending 
him. Unlike Ihe days of the early common law, the modern 
police officer cannot count of the general cili/enry lo respond lo 
Ihe "hue and cry” of the common law by which the public was 
obliged to aid in Ihe capture of Beeing suspects." Only through 
Ihe privilege lo use deadly force as a last resort to effect the cap­
ture of a Beeing suspect is the power lo arrest truly effective. It 
would appear lo be common sense that an ol Beer’s order lo 
“ slop or I’ll shoot” enhances the likelihood that suspects will 
submit to arrest, if that order is believed.”

( ONCIAISION

For Ihe reasons set forth above, the Appellant respectfully re­
quests that the decision of the Sixth Circuit Court of Appeals be 
reversed.

Respectfully submitted,

WILLIAM M. LLLCM, JR.
Attorney General & Reporter
Stale of Tennessee

IF.RRY L. SMITH
Assistant Attorney General 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439

” See: 33 Vand. L. Rev. 71 at 74, n. 14, citing 4 W. Ulackslonc, 
Commentaries at 293. .

” Mogin, The PoUeeman’s Privilege to Shoot a Tieeing Suspect: 
Constitutional Limits on the Use o f Deadly Force, 18 Am. Criin. L. 
Rev. 533 (1981).