Correspondence from John P. Hehman to Jack Greenberg

    JOHN P. HEHMAN
CLERK

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

CINCINNATI, OHIO 45202

June 18, 1979

Mr. Jack Greenberg
Mr. Charles Stephen Raison
Mr. Drew S. Days III
Mr. Walter L. Bailey, Jr.
Mr. D'Army BaileyMr. Avon N. Williams, Jr.
Mr. HenryL. Klein

Re: Case No. 77-1089
Cleamtee Garner, etc., Plaintiff-Appellant, vs. Memphis Police Department, et al.,
Defendants-Appellees.
Dist. Ct. No. C-75-145

Dear Counsel:
The Court today announced its decision in the above- entitled case.
A copy of the Court's opinion is enclosed, and a 

judgment in conformity with the opinion has been entered today 
as required by Rule 36, Federal Rules of Appellate Procedure.

Costs may be recovered by the Appellant as provided by Rule 39, Federal Rules of Appellate Procedure.
Very truly yours,
John P. Hehman, Clerk

B y .(Mrs.)Betty Tibbies Deputy Clerk
BT:jgc 
Enclosure



r )

Vt,



52 ^  FEDERAL REPORTER, 2d SERIES

•j . , 

pf»
SI !••'• • n

•i*

f
• * i

rant performed laundry work ordinarily 
only upon the establishment’s own linens or 
fabrics of those of iU guests.” The Admin­
istrator later changed this interpretation of 
the Act and now supports the position ar­
gued by the Secretary of Labor.

The Administrator’s first interpretation 
seems to us more in line with the purpose of 
the 1966 legislation excluding laundries 
from the small business exemption. 29 
U.S.C. § 213(aX2). The Senate Committee 
on Labor and Public Welfare report on the 
legislation reads; “This section repeals the 
[existing] wage and overtime exemption ap­
plicable to employees in laundry and dry 
cleaning eatablishments. . . , [Tjhe
amendments . . provide for com-

• protection for employees o f  
such establiahmenta,” S.Rep. No. 1487, 89th 
Cong., 1st Sess. at 28 (1966) (emphasis add­
ed), U.S.Code Cong. & Admin.News 1966, 
pp. 3002, 3030. ■ “ [W]hat Congress intended 
to accomplish was a sweeping coverage of 
the entireijaundry industry.” National Au­
tomatic tMandry and Cleaning Council v. 
Shultz, ,143 U.S.App.D.C. 274, 290, 443 F.2d 
689, 705 (1971). Dominant segpnents of the 

I industry sought the amendments. They 
were already paying the minimum wage 
and had to charge higher prices as a result. 
They sought coverage of the entire industry 
in order to remove the competitive price 
advantage of small operators. Ibid.

[1,2] A motel, however, is not usually 
considered “ a laundry establishment” or a 
part of the “ laundry industry.” Congress 
was trying to put a floor under the wages 
paid by these establishments, but there is 
no indication that Congress was so interest­
ed in obtaining business for laundries that 
it intended that small retail businesses such 
as restaurante and motels should lose their 
minimum wage exemption because they 
wash their own laundry rather than send it 
outside to a “ laundry establishment.”  We 
disagree with the recent decision of the

not employees of restaurants or motels who 
wash tablecloths, sheets and the like for use 
on the premises in the ordinary course of 
business. Not a single line or word of the 
legislative history suggests that Congress 
intended to extend the provision to include 
employees of businesses outside the laundry 
industry.

Accordingly, the judgment of the District 
Court is reversed.

O I  KEY»UMBERSrSIEM>

Cleamtee GARNER, father and next of 
kin o f Eugene Gamer, a deceased 

minor, Plaintiff-Appellant,

V .

MEMPHIS POLICE DEPARTMENT, 
CITY OF MEMPHIS, TENNESSEE and 
Jay W. Hubbard and E. R. Hymon in 
their official capacities, Defendants-Ap- 
pellees.

No. 77-1089.

United States Court of Appeals,
Sixth Circuit. '

Argued Feb. 14, 1979.
Decided June 18, 1979.

. ,5f

K

Father of youth brought action against 
city, municipal police officer and officials to 
recover for a llege  wrongful death caused 
by constitutional violations when policeman 
shot and killed youth as he allegedly was 
escaping from the scene of a burglary. The

n- -------------- --------- United States District Court for the West-
h ifth (> cu a  to the contrary, Cfoaaett v. ern District of Tennessee, Harry W. Well- 
U u-^-K el Corp 569 F.2d 869 (1978). We ford. J.. dismissed suit against city and 
construe the words of the statute, “employ- against officer and his superiors, and plain- 
ees e n g a ^  m laundering,” to mean “em- tiff appealed. The Court of Appeals, Mer- 
ployees of laundering establishments” and ritt. Circuit Judge, held that: (1) policeman •

was entitled i 
a qualified “g 
nity from lia' 
based on hi: 
which allows 
felon rather 
him to escape 
of city unde 
depended up< 
whether mun 
nity or pri\ 
whether mui 
under state 
missible, wht 
low point bi 
missible anc 
flowed from 
municipality

Case ag: 
sideration.

1. Civil Righ
A city p< 

youth as he 
burglary wa*- 
defense to c 
“ good faith” 
liability for • 
his reliance < 
an officer to 
run the risk 
prehension. 
Const. Amer

2. Civil RigI'
Liability 

rights statul 
man of yout 
burglary dep 
tions as to w 
ified immuH' 
faith, wheth. 
force under 
permissible, 
hollow point 
missible an' 
flowed from 
municipality



KS

restaurants or motels who 
sheets and the like for use 
in the ordinary course of 
single line or word of the 
y suggests that Congress 
d the provision to include 
nesses outside the laundry

0 judgment o f the District

ET NUMBER SYSTEM!>

HR, father and next o f 
I* Gamer, a deceased 
lintiff-Appellant,

V .

-ICE DEPARTMENT, 
t’HIS, TENNESSEE and 
d and E. R. Hymon in 
nacities, Defendants-Ap-

77-1089.

 ̂ Court of Appeals, 
h Circuit.

Peb. 14, 1979.
June 18, 1979.

h brought action against 
e officer and officials to 
wrongful death caused 

■lations when policeman 
‘ th as he allegedly was 
nene o f a burglary. The 
ict Court for the West- 
n e s ^ , Harry W. Well- 
suit against city and 

his superiors, and plain- 
Court of Appeals, Mer- 
eld that: (1) policeman

%

■> »

GARNER V .  MEMPHIS POLICE DEPT., ETC.
CHea*600F.2d 52 (1979)

53
was entitled to assert, as complete defense, 
a qualified “ good faith” privilege or immu­
nity from liability for constitutional claims 
based on his reliance on Terinessee law 
which allows an officer to kill a fleeing 
felon rather than run the risk of allowing 
him to escape apprehension, and (2) liability 
of city under federal civil rights statute 
depended upon resolution of questions as to 
whether municipality had a qualified immu­
nity or privilege based on good faith, 
whether municipality’s use of deadly force 
under state law was constitutionally per­
missible, whether municipality’s use of hol­
low point bullet was constitutionally per­
missible and whether officer’s conduct 
flowed from a “ policy or custom” for which 
municipality could be liable in damages.

Case against city remanded for recon­
sideration.

1. Civil Rights ■9=13.8(4)
A city policeman who shot and killed a 

youth as he escaped from the scene of a 
burglary was entitled to assert, as complete 
defense to civil rights action, a qualified 
“ good faith”  privilege or immunity from 
liability for constitutional claims baaed on 
his reliance on Tennessee law which allows 
an officer to kill a fleeing felon rather than 
run the risk of allowing him to escape ap­
prehension. 42 U.S.C.A. § 1983; U.S.C.A. 
Const. Amends. 4, 8, 14; T.C.A. § 40-808.

2. Civil Rights -9=13.8(3)
Liability of city under federal civil 

rights statute for shooting by city police­
man of youth as he escaped from scene of 
burglary depended upon resolution of ques­
tions as to whether municipality had a qual­
ified immunity or privilege based on good 
faith, whether municipality’s use of deadly 
force under state law was constitutionally 
permissible, whether municipality’s use of 
hollow point bullet was constitutionally per­
missible and whether officer’s conduct 
flowed from a “ policy or custom” for which 
municipality could be liable in damages. 42

U.S.C.A. § 1983; U.S.C.A.Const. Amends. 4, 
6, 8, 14; T.C.A. § 40-808.

Jack Greenberg, Charles Stephen Ralston, 
Drew S. Days, III, Steven L. Winter, New 
York City, Walter L. Bailey, Jr., D’Army 
Bailey, Memphis, Tenn., Avon N. Williams,' 
Jr., Nashville, Tenn., for plaintiff-appellant.

Henry L. Klein, Memphis, Tenn., for de- 
fendants-appellees.

Before EDWARDS, Chief Judge and 
LIVELY and MERRITT, Circuit Judges.

MERRITT, Circuit Judge.
On the night of October 3, 1974, a fifteen 

year old, unarmed boy broke a window and 
entered an unoccupied residence in subur­
ban Memphis to steal money and property. 
Two police officers, called to the scene by a 
neighbor, intercepted the youth as he ran 
from the back of the house to a six foot 
cyclone fence in the back yard. Using a 
38-calibre pistol loaded with hollow point 
bullets, one of the officers shot and killed 
the boy from a range of 30 to 40 feet as he 
climbed the fence to escape. After shining 
a flashlight on the boy as he crouched by 
the fence, the officer identified himself as a 
policeman and yelled “ Halt.” He could see 
that the fleeing felon was a youth and was 
apparently unarmed. As the boy jumped to 
get over the fence, the officer fired at the 
upper part of the body, as he was trained to 
do by his superiors at the Memphis Police 
Department. He shot because he believed 
the boy would elude capture in the dark 
once he was over the fence. The officer 
was taught that it was proper to kill a 
fleeing felon rather than run the risk of 
allowing him to escape.

The District Court dismissed the suit of 
decedent’s father brought against the City 
under 42 U.S.C. § 1983 (1976) to recover 
damages for wrongful death caused by 
claimed constitutional violations of the 
fourth, eighth and fourteenth amendments. 
In accordance with then existing law, the 
District Court held that a city is not a

n



54 600 FEDERAL REPORTER, 2d SERIES

m

1

“ person” subject to suit under § 1983; but 
Monroe v. Pape, 365 U.S. 167, 81 S.Ct 473, 5 
L.Ed.2d 492 (1961), in which the Supreme 
Court so ruled, was overruled on this point 
last term by the case of Monell v. Depart­
ment o f  Social Services, 436 U.S. 658, 98 
S.Ct. 2018, 56 L.Ed.2d 611 (1978). Follow­
ing a bench trial, the District Court also 
dismissed the case against the officer and 
his superiors holding, in accordance with 
our decisions in Beech v. Melancon, 465 F.2d 
425 (6th Cir. 1972), cert, denied, 409 U.S. 
l i f t ,  93 S.Ct. 927, 34 L.Ed.2d 696 (1973); 
Qualls V. Parrish, 534 F.2d 690 (6th Cir. 
1976); and Wiley v. Memphis Police De­
partment, 548 F.2d 1247 (6th Cir.), cert.. 
denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 
78 (1977), that the officers acted in good 
faith reliance on Tennessee law which al­
lows an officer to kill a fleeing felon rather 
than run the risk of allowing him to escape 
apprehension.

[1] We conclude that the District Court 
did not err in finding that the individual 
defendants acted in good faith reliance on 

' Tenn. Code Ann. § 40-808 which provides 
that an officer “ may use all the necessary 
means to effect, the arrest” of a fleeing 
felon. As our previous cases, cited above, 
point out, Tennessee courts have interpret­
ed this statute as a codification of the com­
mon law rule allowing officers to kill flee­
ing felons rather than run the risk o f per­
mitting them to escape apprehension. This 
rule applies to fleeing felons suspected of 
property crimes not endangering human 
life, as well as life-endang;ering crimes, And 
tol/elons who pose no threat of bodily harm 
to others, if not apprehended immediately, 
as ^ell as felons who may be dangerous to 
others if left at large. Applying the quali­
fied “good faith” privilege or immunity 
from liability for constitutional claims, as 
announced in our previous decisions cited 
above, we affirm that portion of the Dis­
trict Court’s judgment dismissing the case 
against the individual defendants.

|‘2] We reverse and remand the case 
against the City, however, for reconsiders- • 
tion by the District Court in light of Monell 
V. Department o f  Social Services, supra. 
Monell holds that a city may be held liable 
in damages under § 1983 for constitutional 
deprivations that result from a “ policy or 
custom” followed by the city. 436 U.S. at
694 and n. 66, 98 S.Ct. 2018. .

\

Our previous decisions do not establish 
the constitutionality of Tenn. Code Ann.
§ 40-808, permitting a city to authorize its' 
officers to use deadly force against a flee­
ing felon, nor have they established the 
constitutionality of the city’s use of hollow 
point bullets. Although there is discussion 
of the constitutionality of the Tennessee 
statute in the Beech, Qualls and Wiley 
cases, supra, all three o f those cases dealt 
with actions against individual officers un­
der § 1983, and not liability based on the 
“ policy or custom” of a governmental enti­
ty. Those cases held that it “ would be 
unfair” to impose liability on an officer 
“ who relied, in good faith, upon the settled 
law of his state that he relieved him from 
liability for the particular acts performed in 
his official capacity.”  Qualls v. Parrish, 
supra at 694, quoted in Wiley v. Memphis 
Police Department, supra at 1253. The es­
sential holding of those cases was that an 
individual officer has a qualified privilege 
or immunity from liability for constitution­
al claims based on good faith performance 
of his duties in accordance with statutory or 
administrative authority, a holding subse­
quently approved by the Supreme Court in 
Butz V. Economou, 438 U.S. 478, 49&-508, 98. 
S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although 
the qualified immunity developed in those 
cases insulates the officers and officials 
from personal liability in this case, as the 
District Court held, the following questions 
in the case against the city are still open 
under Monell:

1. Does a municipality have a similar 
qualified immunity or privilege based 
on good faith under Mone//?*

8.

4.

2.

1. See discussion of this question In Llete v. City o f  Providence, 463 F.Supp. 585, 588 (D R I 
1978).



and the case 
r reconsidera- 
ifht o f Monell 
'"vices, supra. 
t)e held liable 
constitutional 

a “ policy or 
436 U.S. at

not establish 
Code Ann. 

authorize its 
^ainst a flee- 
ablished the 
ise o f hollow 
is discussion 
e Tennessee 

and Wiley 
cases dealt 

officers un- 
ased on the 
mental enti- 

“ would be 
an officer 

t the settled 
■d him from 
>erformed in 

V. Parrish,
V. Memphis 

'>3. The es- 
■vas that an 
■k1 privilege 
onstitution- 
•erformance 
■itatutory or 
ding subse­
ne Court in 
496-508, 98.

Although 
“d in those 
td officials 
ise, as the . 
g questions 
! still open

a similar 
dege based 
'/?>

•<8 (D.R.I.

'i

-■

UNITED STATES v. RENFRO
cite u  600 F.2d 5S (1979)

If not, is a municipality’s use of dead­
ly force under Tennessee law to cap­
ture allegedly nondangerous felons 
fleeing from nonviolent crimes consti­
tutionally permissible under the 
fourth, ^xth, eighth and fourteenth 
amendments? *

3. Is the municipality’s use of hollow 
point bullets constitutionally permis-

1 sible under these provisions of the 
; Constitution? *

4. If the municipal conduct in any of 
thdSe respects violates the Constitu­
tion, did the conduct flow from a 
“ policy or custom” for which the City 
is liable in damages under Monell 1*

We remand the case against the City to 
the District Court for reconsideration in 

' light of Monell, including consideration of 
these questions.

55

UNITED-STATES o f America, 
Plaintiff-Appellee,

v.

Andrew RENFRO, Defendant-Appellant. 
No. 78-5482.

United States Court of Appeals, 
Sixth Circuit.

Argued April 9, 1979.
' Decided June 19, 1979. 

Rehearing and Rehearing En Banc 
Denied July 31, 1979.

2. See generally Coker v. Georgia, 433 U.S. 584, 
97 S.Ct. 2523, 53 L.Ed.2d 653 (1977); Ingraham 
V. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 
L.Ed.2d 711 (1977): Gregg v. Georgia, 428 U.S. 
153, 96 s  et. 2909, 49 L.Ed.2d 859 (1976); 'fu r -  
man V. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 
L.Ed.2d 346 (1972); Landrum v. Moats, 576

, F.2d 13M (8th Cir.), cert, denied,-----U.S.--------,
99 S.Ct.^82. 58 L.Ed.2d 258 (1978); Mattis v. 
Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated 
as advisory opinion sub nom. Ashcroft v. Mat­
tis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 
(1977); Jones v. Marshall, 528 F.2d 132 (2d Cir. 
1975); Day, Shooting the Fleeing Felon: State 
of the Law, 14 Crim.L.Bull. 285 (1978); Com­
ment, Deadly Force to Arrest: Triggering Con­
stitutional Review, 11 Harv.C.R.— C.L.L.Rev. 
361 (1976).

I

S. See generally Paust, Does Your Police Force 
Use Illegal Weapons? A Configurative A p ­
proach to Decision Integrating International 
and Domestic Law, 18 Harv.Infl L.J. 19 (1977).

Defendant was convicted before the 
United States District Court for the East­
ern District of Michigan, Southern Division, 
Philip Pratt, J., of income tax evasion and 
failing to file, and he appealed. The Ck)urt 
of Appeals, Cecil, Senior Circuit Judge, held 
that: (1) the prosecutor’s supposed improp­
er argument concerning expression of per­
sonal opinion of guilt, misstatements of law 
and fact and shifting burden of proof did 
not rise to level of plain error; (2) court 
properly instructed that jury could consider 
reasonableness of defendant’s explanation 
as to his increase in net worth as bearing on 
his consciousness of guilt; (3) in prosecution 
for income tax evasion and failure to file, 
admission o f alleged hearsay testimony of

4. On the question of “ policy or custom,” police 
records are said to show, according to reports 
we do not find In this record, that during the 
preceding eight years Memphis police officers 
killed seventeen fleeing burglary suspects; thir­
teen were black and five were youths. Accord­
ing to the same reports, Memphis police offi­
cers killed twenty-four individuals during this 
period in connection with crimes of violence or 
in self-defense; they attempted to use deadly 
force on 177 occasions, 114 of which were in 
connection with property crimes. See the orig­
inal certified appellate record, document 45, in 
Wiley V. Memphis Police Dep't, 548 F.2d 1247 
(6th Cir.), cert, denied, 434 U.S. 822, 98 S.Ct. 
65, 54 L.Ed.2d 78 (1977), as summarized in 
Comment, Deadly Force to Arrest: Triggering 
Constitutional Review, 11 Harv.C.R—C.L.L. 
Rev. 361, 362 n. 4 (1976); Report, Tenn. Adv. 
Committee to U.S. Civ. Rights Comm’n, Civic 
Crisis-—Civil Challenge: Police-Community Re­
lations in Memphis 81 (1978).

m



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' V
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No. 77-1089

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

C l e a m t e e  G akneh , father and next of 
kin of Eugene Garner, a decctised, 
minor,

Plaint i ff-AppeUan t.

V.

M e m p iu s  P o l ic e  D e p a h t m e n t , C ity  
OF M e m p iu s , T ennessee  and Jay 
W. IIouBAUD and E. R. I I v m o n  in 
their official capacities.

Defendants-Appellees.

O n A i ’p e a i , from the 
United States District 
Court for tlie Western 
District of Tennessee.

Decided and Filed June 18, 1979.

Before: E dw aiuis, Cliicf Judge; L iv e ly  and M e h iu t i, Cir­
cuit Judges.

MEmurr, Circuit Judge. On the night of Oc+olier 3, 1974, 
a fifteen year old, unanned boy broke a window and en­
tered an unoccupied residenc-e in suburban Memphis to ste;d 
money and property. Two police officers, called to the scene 
by a neighbor, intercepted the youth as he ran from llû  back 
of tlie house to a six foot cyclone fence in the back yard. 
Using a 38-calibre pistol loaded with hollow point bullets, 
one of the officers shot and killed the boy from a range of 
30 to 40 feet as he climbed the fence to escape. After shining 
a flaslilight on the boy ;is he crouched by the fence, the of-

mmi

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, I'It y'*< <A

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'  . . - - i '  ■ <**-• - .* '■ - -  ■- e ; • - v '- r /W . - ' f  ' *: L  .



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

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

The District Court dismissed the suit of decedent’s father 
brought against the City under 42 U.S.C. § 1983 (1976) to 
recover damages for wrongful death caused by claimed con­
stitutional violations of the fourth, eighth and fourteenth 
amendments. In accordance with then existing law, the Dis­
trict Court held that a city is not a “person” subject to suit 
under § 1983; but Monroe v. Pape, 364 U.S. 167 (1961), in 
which the Supreme Court so ruled, was overruled on this 
point last term by the case of Monell v. Department of Social 
Services, 436 U.S. 658 (1978). Following a bench trial, the 
District Court also dismissed the case against the officer and 
his superiors holding, in accordance with our decisions in 
Beech v. Melancon, 465 F.2d 425 ( 6th Cir. 1972 ), cert, denied, 
409 U.S. 1114 (1973); Qualls v. Parrish, o34 F.2d 690 (6th Cir. 
1976); and W iley  v. Memphis Police Department. 548 F.2d 
1247 ( 6th Cir.), cert, denied, 434 U.S. 822 (1977), that the 
officers acted in good faith reliance on Tennessee law which 
allows an officer to kill a fleeing felon rather than run the 
risk of allowing him to escape apprehension.

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

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

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

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

Our previous decisions do not establish the constitutionafitv- 
of T e x x . C ode A x x . § 40-808, permitting a citŷ  to authorize 
its officers to use deadly force against a fleeing felon, nor 
have thev’ established the constitutionalitv’ of the city’s use of 
hollow point bullets. Although there is discussion of the 
constitutionality of the Tennessee statute in the Beech, Qualls 
and W iley  cases, supra, all three of those cases dealt with ac­
tions against individual officers under § 1933, and not liabili­
ty based on the “policy or custom” of a governmental entity. 
Those cases held that it “would be unfair” to imjwse liability 
on an officer “who relied, in good faith, upon the settled law 
of his state that relieved him from liability' for the particular 
acts performed in his official capacity.” Qualls v. Parrish, supra 
at 694, quoted in W iley  v. Memphis Police Depanment, supra 
at 1253. The essential holding of those cases wav that an in­
dividual officer has a qualified privilege or immunity from 
liability for constitutional claims based on good faith per­
formance of his duties in accordance with statutoiy or admin- 
istrativ'e authority, a holding subsequently appnwed by the 
Supreme Court in Butz v. Economou, 438 U.S. 478, 496-508



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

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

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

3. Is the municipahty’s use of hollow point bullets con­
stitutionally permissible under these provisions of the 
Constitution?^

4. If the municipal conduct in any of these respects vi­
olates the Constitution, did the conduct flow from a 
“pohcy or custom” for w’hich the City is hable in 
damages under Monell?^

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

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

2 See generally Coker v. Georgia, 433 U.S. 584 (1977); Ingraham 
V. Wright, 430 U.S. 651 (1977); Gregg v. Georgia. 428 U.S. 153 
(1976): Furman v. Georgia, 408 U.S. 238 (1972); Landrum v. Moats, 
576 F.2d 1320 (8th Cir.), cert, denied. 99 S.Ct. 282 (1978); Mattis v. 
Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated as advisory opinion 
sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977); Jones v. Marshall, 
528 F.2d 132 (2d Cir, 1975); Day, Shooting the Fleeing Felon: State 
o-f the Law, 14 (Tr im . L. B ull, 285 (1978); Comment, Deadly Force to 
A rrest: Triggering Constitutional Review , 11 Harv , C. R. —  C, L. L, 
R ev. 361 (1976).

3 See generally Paust. Does Your Police Force Use Illegal Weapons? 
A  Configurative Approach to Decision Integrating International ana 
Domestic Law, 18 Harv. iNriL L.J. 19 (1977).

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

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

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

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