Brief of the State of Tennessee

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, et al. 
Appellants,

V .

MEMPHIS POLICE DEPARTMENT, 
et al.

Appellees.

NO. 81-5605

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
WESTEPJSI DISTRICT OF TENNESSEE 

WESTERN DIVISION

BRIEF OF THE STATE OF TENNESSEE

JERRY L. SMITH 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-6439

OF COUNSEL;
WILLIAM M. LEECH, JR. 
Attorney General & Reporter

OFFICE OF THE

Attorney General of Tennessee

NASHVILLE, TENNESSEE 37219



PAGE (S)

ISSUE PRESENTED FOR REVIEW......................... 1
STATEMENT OF THE CASE.............................. 2-3
STATEMENT OF THE EVIDENCE.......................... 4
ARGUMENT:

THE DISTRICT COURT CORRECTLY FOUND 
TENN. CODE ANN. § 40-7-108 TO BE 
CONSTITUTIONAL UNDER THE CIRCUMSTANCES 
PRESENTED IN THE INSTANT CASE............ 5-15

CONCLUSION......................................... 16
CERTIFICATE OF SERVICE............................. 16

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

CASES CITED: PAGE (S)

Beech v. Melancon, 465 F.2d 425
(6th Cir. 1972).......................... 7,9,10,14

Cunningham v. Ellington, 323 F.Supp.
1072 (W.D. Tenn. 1971)................... 8,10,11,14

Jones V .  Marshall, 383 F.Supp. 358, 
aff'd 528 F.2d 132 (2nd
Cir. 1975)...............................  11,12

Landrum v. Moats, 576 F.2d 1320
(8th Cir. 1978)..........................  13

Love V .  Bass, 145 Tenn. 522, 238
S.W. 94 (1921)........................... 5

Mattis V .  Schnarr, 547 F.2d 1007
(8th Cir. 1976)..........................  13

Reneau v. State, 70 Tenn. 720 (1879)............... 5
State V .  Boles, 598 S.W.2d 821, 823

(Tenn. Crim. App. 1980).................. 5
United Public Workers v. Mitchell, 330

U.S. 75, 67 S.Ct. 556, 91 L.Ed.2d
754 (1947)...............................  10

Vorbeck v. Schnicker, 660 F.2d 260, 264
(8th Cir. 1981).......................... 10

Wiley V .  Memphis Police Dept.,  548 F.2d 1247,
1251 (6th Cir. 1977)..................... 5,7,8,9,10,14

Wood V .  Georgia, 450 U.S. 261, 101 S.Ct.
1097, 1100, 67 L.Ed.2d 220 (1981)......... 10

OTHER AUTHORITIES CITED;
Tennessee Code Annotated § 40-7-10 8................ 2,5,8,9,15
Tennessee Code Annotated § 40-7-108................ 1,8
Tennessee Rules Appellate Procedure 13(e).......... 17

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ISSUE PRESENTED FOR REVIEW

Whether T.C.A. § 40-7-108 which states, "If, 
after notice of the intention to arrest the defendant, 
he either flee or forcibly resist, the officer may use 
all the necessary means to effect the arrest", is con­
stitutional?

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In the instant case the State of Tennessee was 
permitted, upon motion of the State, to intervene as a 
party-appellee for the purpose of litigating the constitu­
tionality of Tenn. Code Ann. § 40-7-108. Intervention by 
the State was obtained pursuant to 28 U.S.C. § 2403(b), 
which mandates the intervention of the attorney general of 
a state which has one of its statutes under constitutional 
attack in an action to which the state is not otherwise a 
party. The sole purpose of the State's intervention is to 
defend the constitutionality of Tenn. Code Ann. § 40-7-108 
as that statute has been interpreted by the courts of the 
State of Tennessee.

The State of Tennessee would respectfully adopt 
the Statement of the Case found in the Brief of the 
Appellees, Memphis Police Department, et al., as an accurate 
account of the procedural history of the instant case prior 
to the intervention of the State on appeal. The State would 
only add that it appears the district court specifically 
found that Tenn. Code Ann. § 40-7-108, under the circum­
stances of the instant case involving a fleeing burglary 
suspect, whom police did not definitely know was unarmed and

STATEMENT OF THE CASE

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who for all police knew had committed a violent crime, 
met constitutional muster. (App. 27, 39, 61).

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The State would respectfully adopt as a 
correct account of the facts herein those findings 
of fact made by the district court in its memoran­
dum of September 29, 1978, February 29, 1980, and 
July 8 , 1981. (App. 22-35, 36-46, 55-62).

STATEMENT OF THE EVIDENCE

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ARGUMENT

THE DISTRICT COURT CORRECTLY FOUND TENN. CODE ANN. 
§ 40-7-108 TO BE CONSTITUTIONAL UNDER THE CIRCUM­
STANCES PRESENTED IN THE INSTANT CASE.

Tenn. Code Ann. § 40-7-108 states;

Resistance to officer. - If, after 
notice of the intention to arrest 
the defendant, he either flee or 
forcibly resist, the officer may 
use all the necessary means to effect 
the arrest.

On its face this statute is only a codification of the 
common law. Wiley v. Memphis Police Department, 548 F.2d 
1247, 1251 (6th Cir. 1977). The statute has been inter­
preted by Tennessee courts to permit the use of deadly 
force to apprehend a fleeing felony suspect when no lesser 
means of apprehension reasonably appears available. Reneau 
V. State, 70 Tenn. 720 (1879); Love v. Bass, 145 Tenn. 522, 
238 S.W. 94 (1921); State v. Boles, 598 S.W.2d 821, 823 
(Tenn. Crim. App. 1980). Thus, on its face there is nothing 
unconstitutional about Tenn. Code Ann. § 40-7-108. The 
real issue is whether constitution permits the use of deadly 
force to apprehend what an officer knows to be a non- 
dangerous felony suspect fleeing from a non-violent felony.

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i.e. the constitutionality of the statute as applied to 
a particular fact situation. The State submits, however, 
that given the state of facts as found by the district 
court it is not necessary for this Court to address the 
constitutional question of the use of deadly force 
against a non-dangerous felony suspect fleeing a non­
violent felony.

In the instant case the district court found 
that Officer Hymon could not be certain whether there was 
an accomplice in the burglarized house, or in the area, 
and whether the accomplice might be armed. The area of the 
shooting was dark and Officer Hymon was uncertain of the 
terrain. Finally, Officer Hymon did not know if some 
violent offense had been committed, and he did not de­
finitely know Garner was unarmed. (App. 27, 61). These 
findings may not be set aside unless clearly erroneous. 
Fed. R. App. P. 52(a). The State submits these findings 
are clearly supported by the record and are not erroneous. 
(App. 644, 645, 656, 674, 675).

Given the facts found by the district court in 
the instant case the situation of an officer shooting an 
individual whom he had no reason to suspect was dangerous

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nor whom he had any reason to believe had committed a 
crime'of violence is simply not made out in this case.
Of course it was ultimately determined that Garner was 
unarmed and had not committed a crime of violence, but 
officers did not know this at the time of the shooting.

The State respectfully submits the instant 
case falls within the previous holdings of this Court 
in the cases of Beech v. Melancon, 465 F.2d 425 (6th Cir. 
1972); and Wiley v. Memphis Police Department, 548 F.2d 
1247 (6th Cir. 1977). In both Beech and Wiley this Court 
was faced situations very similar to the one presented 
in the instant case. In both cases, as in the present 
one, police shot and killed felony suspects at night as 
they fled from police officers who were unable to appre­
hend them otherwise. In both cases, as in the present 
one, officers were uncertain whether the suspects were 
armed and dangerous, and uncertain as to the dangerousness 
of accomplices. In both cases, as in the present one, 
officers identified themselves and warned the suspects to 
halt. In Beech this Court found that the district court 
was not guilty of clear error in finding the use of deadly 
force necessary to effect the arrest. Also noted was the

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holding in Cunningham v. Ellington  ̂ 323 F.Supp. 1072 
(W.D. Tenn. 1971); that Tenn. Code Ann. § 40-808 
[40-7-108] was constitutional. In Wiley this Court 
held that under the circumstances the district court's 
findings that the shooting was necessary was not clearly 
erroneous. Further, this Court indicated that under 
the circiamstances the use of deadly force was constitu­
tionally permissible. This Court stated with respect to 
Tenn. Code Ann. § 40-808 [40-7-108]:

The Eight Circuit is the only 
Court to our knowledge which has ever 
held that such a statute, which is so 
necessary even to elementary law en­
forcement, is unconstitutional. It ex­
tends to the felon unwarranted protec­
tion, at the expense of the public.

We agree with the dissent in the 
Eighth Circuit Case (Mattis v. Schnau), 
which was highly critical of the majority 
opinion for not following the decisions 
of other Circuits and for embarking on a 
new course which should have been left to 
the state legislatures where it belongs.

548 F.2d at 1252.

In both Beech and Wiley Judge McCree entered a 
concurring opinion finding it was not necessary to render 
an opinion concerning the constitutionality of the use of

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deadly force against a non-dangerous fleeing felon since 
in both Beech and Wiley the finding of the district court 
was that officers did not know the suspects were non- 
dangerous. 548 F.2d at 1256; 465 F.2d at 426. Judge 
McCree stated in Beech:

. . . courts should not second-guess
police officers, who faced with making 
split-second decisions, reasonable and 
in good faith believe that their lives 
or those of third persons would be en­
dangered if they refrain from employing 
deadly force to attempt to apprehend 
fleeing felons whose arrest cannot 
reasonably be accomplished by less dangerous 
means.

Id.

In the instant case there are findings by the 
district court that this case does not involve a clearly 
non-dangerous suspect fleeing a non-violent felony. (App. 
27, 61). Unless these findings are set aside as clearly 
erroneous the question of the constitutionality of Tenn.
Code Ann. § 40-7-108, as applied to allow the use of deadly 
force against a non-dangerous suspect fleeing a non-violent 
felony, is not before this Court and should not be addressed 
by it. Federal courts should not reach constitutional 
questions not squarely before them on the facts of the case;

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and should refrain from addressing a constitutional issue 
when possible. Wood v. Georgia> 450 U.S. 261, 101 S.Ct. 
1097, 1100, 67 L.Ed.2d 220 (1981); United Public Workers 
V .  Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 
(1947); Vorbeck v. Schnicker, 660 F.2d 260, 264 (8th Cir. 
1981).

The State respectfully submits therefore that this 
court should in the instant case refrain from unnecessarily 
announcing a broad constitutional principle involving the 
use of deadly force against non-dangerous, non-violent 
fleeing felony suspects; and should determine the case 
based on facts as found by the district court, and in 
accordance with the previous decisions of this Court. See: 
Beech v. Melanion supra.; Wiley v. Memphis Police Dept., 
supra.

In Cunningham v. Ellington, 323 F.Supp. 1072 (W.D. 
Tenn. 1971); a three (3) judge panel sitting in the 
Western District of Tennessee held that Tenn. Code Ann.
§ 40-808 [40-7-108] was not violative of the United States 
Constitution's prohibitions against cruel and unusual 
punishment, nor did the statute violate due process or equal 
protection. The Court found that to characterize the use of

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deadly force to apprehend a fleeing felon as punishment 
would mean that any exercise of force to apprehend a 
fleeing suspect is punishment. The Court noted that any 
force used by an officer to punish a suspect as opposed 
to apprehending him would be a crime, but that the use 
of necessary force, including deadly force, to apprehend 
a fleeing felon is not violative of the Eighth Amendment, 
The Court stated:

It may well be, as plaintiffs argue, 
that as a matter of value judgment 
it would be better to allow persons 
thought to be felons to escape than 
to incur the risk of killing them . .
This, however, is a policy question 
for the Tennessee legislature or per­
haps the Tennessee courts and not for 
the federal courts in the guise of 
constitutional adjudication.*

The district court in Cunningham also held the statute 
comported with due process and did not deprive any per­
sons of equal protection.

In Jones v. Marshall, 383 F.Supp. 358, aff'd . 528

*No Tennessee case has ever specifically held that Tenn. 
Code Ann. § 40-7-108 would authorize the use of deadly force 
against what an officer knows to be a non-dangerous suspect 
fleeing a non-violent felony.

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F.2d 132 (2nd Cir. 1975); the court upheld the consti­
tutionality of a Connecticut law similar to Tenn. Code 
Ann. § 40-7-108. The court found the constitution does 
not require a restriction of the use of deadly force 
to non-dangerous fleeing felony suspects. The court 
concluded the state legislature was the proper place for 
the plaintiff to turn if he wished to change the common 
law rule permitting the use of deadly force to effect 
an arrest.

The State submits that the use of deadly force 
to apprehend a fleeing felony suspect is constitutional 
given the state's interest in protecting the safety of 
officers and other citizens and the prevention of future 
criminal activity. Whie it may ultimately be determined, 
after a shooting, that the fleeing suspect was not 
dangerous or violent, this cannot always be determined in 
the heat of a chase, often at night in situations fraught 
with the potential for danger to police or citizens. It is 
unreasonable to allow a possibly dangerous suspect escape 
under circumstances similar to those in the instant case, 
when it is peculiarly within the power of the suspect to 
prevent the application of deadly force by his yielding

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to the lawful commands of officers to halt.

The plaintiffs in the instant case rely heavily 
upon the case of Mattis v. Schnari; 547 F.2d 1007 
(8th Cir. 1976). In Mattis the Missouri statute similar 
to Tenn. Code Ann. § 40-7-108 was found unconstitutional 
as applied to the use of deadly force to effect the 
arrest of fleeing felons suspected of a non-violent felony 
whom the officers do not reasonably believe will use deadly 
force against the officers or others. 547 F.2d at 1011.
See also: Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978);
essentially following Mattis; and Ayler v. Hopper, 532 
F.Supp. 198 (M.D. Ala. 1981).

Respondent submits, however, the foregoing cases 
are distinguishable from the instant case or are of 
limited precedential value. In Mattis the court was deal­
ing with a situation where officers did not reasonably 
believe the suspect to be dangerous or violent. This same 
set of facts was evidently the case in Landrum. In the 
instant case, howver, the trial judge found that officers 
could not know Garner was not dangerous or violent. (App. 
27, 61). Also in Mattis there is a strong dissent highly 
critical of the majority's unwarranted intervention in what

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is essentially a legislative policy decision. This Court 
in Wiley v. Memphis Police Dept. , supra., was also 
highly critical of the Mattis decision and in fact quoted 
extensively and with approval from the Mattis dissent.
Thus, the State submits Mattis is both distinguishable 
from the instant case and somewhat limited in its pre­
cedential value before this Court. With respect to the 
Ayler case the State submits its precedential value is 
limited due to the fact the opinion does not set forth 
with sufficient detail the circumstances of the shooting 
so as to determine the applicability of its holding to 
the facts of the instant case.

In summary the State of Tennessee respectfully sub­
mits this Court should not unnecessarily rule on the con­
stitutional question of whether deadly force may be applied 
to apprehend a clearly non-dangerous suspect fleeing a 
non-violent felony since that issue assiames facts contrary 
to those found by the district court and which are not 
clearly erroneous. Finally, the State respectfully sub­
mits that given the prior holdings of this Court in Beech 
and Wiley, supra. and the holdings of the district courts 
in Cunningham and Jones, supra., this Court should find

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Tenn. Code Ann. § 40-7-108 constitutional in all 
respects.

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CONCLUSION

In light of the foregoing the State of Tennessee 
respectfully requests that the judgment of the United 
States District Court for the Western District of 
Tennessee be affirmed.

Respectfully submitted.

j e r r y  l / SMii'H i 
'^ssist^t'Attorney General 
/450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-6439

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing 
Brief has been forwarded by first-class, U.S. mail, 
postage prepaid to Messrs. Jack Greenberg, James M. 
Nabrit, III, and Steven L. Winter, Suite 2030, 10 
Columbus Circle, New York, New York 10019; and Mr. Henry 
L. Klein, 2108 First Tennessee Building, Memphis, TN. 
38103, this the ^  // day of May, 1983.

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