Appendix Volume I
Public Court Documents
1976
1072 pages
Cite this item
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Case Files, Garner Working Files. Appendix Volume I, 1976. 78204214-34a8-f011-bbd3-000d3a53d084. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5df3acfc-f498-4234-9c40-babf542bdf65/appendix-volume-i. Accessed February 12, 2026.
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NO. 77-1089
CLEAMTEE GARNER, ETC.,
Plaintiff-Appellant,
V.
MEMPHIS POLICE DEPARTMENT,
et al.,
Defendants-Appellees.
On Appeal from the United States District Court for the V7estern District of Tennessee
APPENDIX. VOL. I pp. 1 - 401
45-
jack GREENBERG
CHARLES STEPHEN RALSTON
10 Columbus Circle
Suite 2030
New York, New York 10019
WALTER L. EALLEY, JR.
D'ARMY BAILEY
Suite 901, Tenoke Building
161 Jefferson Avenue
Memphis, Tennessee 38103
AVON N. WILLIAMS, JR.
MAURICE FRANKLIN
Suite 1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219
Attorneys for Plaintiff-Appellant
s
INDEX
>
Page
Docket Entries ----------------------------------- 1
Complaint ---------------------------------------- 3
Motion to Dismiss-------------------------------- 19
Order-------------------------------------------- 21
Answer------------------------------------------- 28
Plaintiff's Request for Production of
Documents-------------------------------------- 34
Defendant's Response ----------------------------- 38
Answer to Plaintiff's First Interrogatories ----- 41
Answer of Defendant E. R. Hyman to
Plaintiff's Interrogatories'-------------------- 51
Answer to Plaintiff's First Interrogatories
by Jay V7. Hubbard------------------------------ 70
Order of Reference to Magistrate----------------- 82
Report on Reference------------------------------ 83
Objection to Magistrate's Report ----------------- 103
Order--------------------------------------------- 108
Plaintiff's Proposed Findings of Fact and
Conclusion of L a w ------------------------------- 110
Defendant's Proposed Finding of Fact and
Conclusions------------------------------------- 138
Order on Motions for Directed Verdict-------------148
Judgment------------------------------------------ 149
Memorandum Opinion ------------------------------- 150
Judgment------------------------------------------ 164
Transcript of Testimony -------------------------- 166
INDEX
Page
Docket Entries ----------------------------------- 1
Complaint ---------------------------------------- 3
Motion to Dismiss-------------------------------- 19
Order-------------------------------------------- 21
Answer------------------------------------------- 28
Plaintiff's Request for Production of
Documents-------------------------------------- 34
Defendant's Response ----------------------------- 38
Answer to Plaintiff's First Interrogatories ----- 41
Answer of Defendant E. R. Hyman to
Plaintiff's Interrogatories -------------------- 51
Answer to Plaintiff's First Interrogatories
by Jay W. Hubbard------------------------------ 70
Order of Reference to Magistrate----------------- 82
Report on Reference------------------------------ 83
Objection to Magistrate's Report ----------------- 103
Order--------------------------------------------- 108
Plaintiff's Proposed Findings of Fact and
Conclusion of L a w ------------------------------- 110
Defendant's Proposed Finding of Fact and
Conclusions------------------------------------- 138
Order on Motions for Directed Verdict-------------148
Judgment------------------------------------------ 149
Memorandum Opinion ------------------------------- 150
Judgment------------------------------------------ 164
Transcript of Testimony -------------------------- 156
>-8-75
1̂ -8-75
>-8-75
1 1̂ -22-75
U-22-75
. U-22-75
' 1+-22-75
, U-22-75
; 5-1-75
5-23-75
■5-23-75
‘ 6-2-75
6-10-75
|8-i8-75
i
^9-18-75
110-10-75
!10-10-75
110-10-75
110-10-75
} 10-22-75
110- 28-75
11-12-75
{ 11-12-75
; 11-12-75
111- 18-75
‘ 12-2U-75
I - 19-76
^1-19-76
j 1-19-76
II - 19-76
1-20-76
2- 17-76
3- 4-76
3-10-76
U-2-76
U-19-76
I-19-76
I+-19-76 U- 19-76
1̂ -11-75.
F K O G £ tD !l'!C ;r.
Order allowing suit to be filed on Pauper's Oath
/ I Complaint'r
Issued Summons and handed attorney. ■ ■■
Marshal's return on summons for E. R. Î nmon exec. h-ll-Y3-
Marshal's'return on summons for Jay W. Hubbard exec, h-11-75.
Marshal's return on Summons for Wyeth Chandler exec. U-11-75,
Marshal's return on Summons for Memphis Police Department exec,
Marshal's return on Summons for Memphis, City of, exec, lt-11-75.
^ Stipulation extending time within which defendants may move or plead.
Motion to Dismiss in Behalf of Defendants >—
. Memrorandum in Support of Motion to Dismiss
: Extension of Time To Respond To Motion, plairtiff allowed 15 days id addition to
j those permitted inLocal Rule 9 iu which to respond to deft, motion to dismiss.
Copy Judge, Bailey, Greenberg, Klein and Shea.
<2) Plaintiff's Memorandum in Opposition To Motion to Dismiss of Defendants, Meit̂ jhis
jPolice Department, Ci'ty of Memphis, Wyeth Chaindler, Jay W. Hubbard 'and S. R. I^on.
'7' (Order on Motion to Dismiss - Defendants' motion to dismiss is overruled, reluctantly
as to the City of Memphis and the Police Department on the §1331 Jurisdicational i—
' basis. C<3py handed Judge Wellford and mailed Walter Lee Bailey, Jr., Jack Greenberg
.Arthur Shea .and Henry L. Klein
^ Answer of Defendants ---
9 Plaintiff's First Request For. Production of Documents.
/O \ Plaintiff's Interrogatories, to deft. Wyeth Chandler. '•
// Plaintiff's Interrogatories to deft. E. R. Hymon.
/2_ Plaintiff's Interrogatories to deft. Jay W. Hubbard.
/5 I Notice to Take Deposition of Cleamtree Garner
/y i Notice to Take Deposition of Jay W. Hubbard.
/ctI Answer of Defendant, E. R. I^on to Plaintiff's Interrogatories
/(̂ j Answer to Plaintiff's First Interrogatories.'^
/7l Defendant's response and objection to Plaintiff's First ReqiKt for production of
j Documents.
J3\ Order of Reference to Magistrate; CHJW, Copy handed Magistrate; copies mailed to (_,I Arthur Shea, Henry L. Klein, Wal'ter & D'Army Bailey and Jack Greenberg firm.
19 (Answer to Plaintiff's First Interrogatories - of def. Jay W. Hubbard; CHJW ' '
.20 Plaintiff's Motion for Enlargement of Time Within Which to Complete Discovery
.2 / Motion for An Order Compe31ing More Complete Answers to Interrogatories Pursuant to
Rule 37(a)(2) and (3) F.R.C.P. - filed by plaintiff
Plaintiff's Motion to Compel Production of Documents Pursuant to Rule 37(a) F.R.C.P
Memorandum of Points and Authorities in Support of Plaintiff's Motion to Compel
Production of Documents
2H- Order referring motion for compelling more complete ansviers to
to Interrogatories and for production of documents, copy handed Judge
SheA, Klein, Bailey and Greenberg
2 S Certificate pursuant to Local Rule 10(c)
p Report on reference concerning discovery -granting some parts of plaintiff^
motion and denying others (recommendations) - copies to Bailey, Greenberg, Shea
and Klein
2.'/ Objection to Magistrate's Report on Reference Concerning Discovery
2 8 Order - defs.have objected to request for production relating to documents relating
to lethal force; unless persuaded by pltf to contrary. Court will limit the request
without requiring production of all official investigation reports, etc; defs. will
produce disciplinary proceedings instituted against officers involved re lethal for(̂ e
copies to Messrs. Bailey, Greenberg, Shea & Klein‘S
2-9 Notice of deposition of E. R. Hymon and L. B. Wright
2 0 Notice of deposition of R. T. Montgomery, W G. Ball and C. A. Russell
31 Notice of deposition of T. H. Smith and S. E. Chambers
3 2 Notice of deposition of Custodian Records relating to Citizens Complaints of
■Po.1 i r.e.. Mi.scanduct-------------------------------------------------------
■uii.ii!iLiPiaa
CIVIL DOCKET CONTINUATION SHEET JUDGE WELLFORD
PLAINTIFF DEFENDANT
Cleumtee Garner Memphis Police Dept., et al
U-19-76
14- 19-76
7-1 - 7 6
7-6-76
7-12-76
7-12-76
7-22-76
7-22-76
7-22-76
7-22-76
7-22-76
7-22-76
7-22-76
7- 22-76
8- 5-76
3-5-76
8-23-76
8- 30-76
9- 7-76
9-7-76
9-29-76
9-30-76
10-13-76
10-27-74
12-3-76
1 -17-77
35
35
v3i,
37 3 S’
v39
i-
VV i ’
<5"/
v53
C}75-ll45DOCKET NO. .
PAGE ____ OF ______ PA(
PROCEEDINGS
C. Peel and G.E.Jorde
Notice of Intent to take deposition of J. A. Coletta
Notice of intent to take deposition of F. J. Wheeler, J.
Memo, of points and authorities
Motion for Inspection and View - by Garner
Memorandum of Points aind Authorities of Plaintiff Cleamtee Garner
"Corrected Copy" of Memorandum of Points and Authorities of Plaintiff Cleamte
Garner
Deposition of Sherman E. Chambers'^
Deposition of Thomas H. Smith •—
Deposition of George E. Jordan'-^
Deposition of F. J. Wheeler...̂
Deposition of J. C. Peel w.--
Deposition of Leslie Burton W'right
Deposition of Elton Richard Hymonw^
Pre-Discovery Comments (of attorneys) April 26, 1976
Deposition of Cleamtee Garner'-^ .
Deposition of John A. Colettav/
Defendants' Proposed Findings of Fact and Conclusions.
Plaintiff's Proposed Findings of Fact and Conclusions of Law
Order.on Motions for Directed Verdict - that motions for directed verdict as
to defendants Mayor Wyeth Chandler and Jay Hubbard are granted and case disml
as to these two defendants;CHJW, copies to Bailey, Greenberg, Shea & Klein
Judgment on Decision by the Court - that the motions for directed verdict in
behalf of defendants Chandler and Hubbard be and are granted and the case 1__.
dismissed as to these defendants; CHJW, copies to attorneys of record
Memo Op-. Judgment in favor of all defendants rendered, copy to Bailey, Greenbe
Shea, Klein, OB and Judge '— ^
Judgment on decision by the Court - dismissing case ; CHJW, OB, copies to 1̂
Walter Bailey, D'Army Bailey, Jack Greenberg, Art Shea and Henry Klein
Testimony of Coletta, Dr. Francisco on Aug.2,3 & *+, 1976(2 Vols.) - THIS HAS
— rtjrmiTfn-̂ n̂nnn— tr~:̂ incorporated in trial transcript filed 1 -17-77
Notice of Appeal - of plaintiff '
Consent Order Extending Time - to 50 days from 12-6-76 in which to perfect
appeal; CHJW, Lynn Dudley; copies to Bailey, Greenberg, Shea and Klein
Court Reporter's Transcript of Trial - Six (6) volumes - Orig. & Clerk's 'cop;
CERTIFICATE
I, J. Franklin Reid, Clerk of the United States District Court for the
Western District of Tennessee, do hereby certify that the above index of
the docket entries is a true and correct copy of all relevant docket
entries which appear on the docket in this office.
This // day of
r '
J. FRANKLIN REID, CLERK
BY:
D.C.
̂ - 1
i!
Constitution. Jurisdiction is conferred on this Court by 28
U.S.C. § 1343(3) and 28 U.S.C. § 1331. The matter in controversy
exceeds the sum or value of $ 1 0 ,000.00, exclusive of interests
and costs.
The shooting and killing of Edward Eugene Garner by a
police officer of the City of Memphis also deprived the deceased
rights, privileges and immunities secured him by the Consuicu-
tion a.nd laws of the State of Tennessee. This action, therefore,
seeks damages for wrongful death and survival and also with
respect to violations or the deceased's state—conferred rights
through exercise of this Court's pendent jurisdiction.
Parties
r . • > i
l| 4, Plaintiff Cleaintee Garner is an adult black citizen of
i:
!j United States and the State of Tennessee, residing in Meiripnis,
ji
II Shelby County, Tennessee. Plaintiff is father and next of kin of 'i|
!j Edward Eugene Garner, deceased minor, who died on October 3, 1974 ’
I
|| as a result of defendants' policies, practices, customs and '
i| . ■ ■
Ij usages complained of herein. At the time of his death, Edward
|j ' :
Ij Eugene Garner, resided with plaintiff and was fifteen years old.
5. All of the individual defendants are citizens of the
United States and the State of Ten.nessee, residing in Memphis,
Shelby County, Ten.nessee. The defendants are as follows:
(a) The Memphis Police Department is a departm.ent or
agency of the City of Memphis and is charged by law with the
law enforcemc.nt responsibilities of the City of Memphis. The
Department has a duty to operate in a lawful manner so as to
preserve to the citizens of Memphis the rights, privileges
and immunities guaranteed and secured to them by the
Constitution and laws of the United States.
(b) The City of Memphis is a mu.nicipal corporation
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_ . ,1
organized and existing under the laws of the State of '
I
Tennessee. The City, pursuant tO' lav;, operates the defendant
Memphis Police Separtment, which the City has the duty to '
operate in conformity with the Constitution and laws of the '
United States. i
(c) Wyeth Chandler is Mayor of the City and, as such,
is the City's chief executive officer. . Defendant Chandler
is respo.nsible for all policies and practices a.nd actions
or omissions of the Department and its members and has the
duty to preserve to all citizens the rights, privileges and
immunities secured by t'ne Constitution and laws of the
United States. Prior to becoming Mayor, on January 1, 1972,
defendant Chandler was a member of the Memphis City Council, >
the City's legislative body. '
̂ 1
(d) Jay W. Hubbard is and was, at all times relevant
herein. Director of Police of Memphis. I.n that capacity as
chief executive officer of the Memphis Police Department, !
he is responsible for establishing general practices, pro
cedures and policies with respect to the operation of that
Departm.ent. Pursuant to that authority he has promulgated
regulations relating to the use of lethal force by Memphis
officers and has authorized the use of weaponry and arrmuni-
I
tion by police officers both of v;hich acts are complained of
heroin. Defendant Hubbard is sued individually and in his
official capacity with the Departm.ent.
(e) Defendant E.R. Kymon is sued individually and in
his official capacity. At all times relevant, he v;as an
officer of the City of .Memphis Police Departeent. He is a
citizen of the United States and of the State of Tennessee,
residing in the City of Mem.phis.
- 3 -
is
First Claim for Relief .---- jI
6 - On information and belief, since February 5, 1974, offi
cers of the Department have been authorized by City and Department
officials to employ deadly force in the follov/ing circum.stances
2fter all other reasonable means to apprehend or other\^;ise
prevent the offense have been exhausted: >
a) defense of themselves or others when confronted with
real and immediate threats of sei'ious bodily harm or
death;
b) v;hcre the offense involves a felony and the suspect uses
or attempts to use or threatens the use of physical
force against any person; and |!
c) where the offense involved is (1 ) kidnapping, (2 ) murder
in the 1st or 2nd degree, (3) manslaughter, (4) arson,
(5) rape, (6) assault and battery v/ith intent to '
carnally know a child under 12 years of age, (7) assavilt
and battery with intent to commit rape, (S) burglary in
the 1st, 2nd or 3rd degree, (9) assault to commit murder ̂
in the 1 st or 2nd degree, (1 0 ) assault to commit volun-
, tary manslaughter, or (1 1 ) armed and simiple robbery.
7. On informatio.n and belief, police-officers of the ‘
Department are issued .38 Smith & Wesson Special revolvers for
use in the carrying out of their official responsibilities.
I
8. On inform.ation and belief, since the latter part of
1973, police officers of the Departm.ent have been issued Reming
ton 125 grain jacketed hoilov.--point bullets for use in .38
revolvers in the exercise of their official duties.
9- The Remington 125 grain jacketed hollow-point bullet is
a member of a class of projectiles commonly referred to as '
“Du.m-Dum" bullets. Named after an arsenal near Calcutta, India
where bullets of this type were first made, "Dur.i-Dumi" bullets
- 4 -
6
■t ■.
j possess the very special quality of expanding and flattening I
roo*e easily in tne huiuan body than do traditional cartridges for ‘
.38 revolvers. •
10. Because of the expanding and flattening quality of such
i
bullets upon entering the human body they, unlike traditional '
cartridges, do noc exit immediately but tend, instead, to expend
I their enormous force within the body. This tendency to expend
force within the body means that persons wounded by such bullets
in the head or torso areas will undoubtedly suffer grievous bcdilv
harm or death.
11. Because of the devastating effect of "2um-Dum" tvpe
bullets upon the human body, their use has bee.n outlawed in inter-
!| national warfare as violative of bans in various international
j | agreements against "projectiles or materials of a nature to
jl cause superfluous injury" (Hague Convention on Land Warfare of
ij 1899), "arms, projectiles, or materials calculated to cause
il . ,jl unnecessary suffering" (Hacme Convention on Land Warfare of 1907
'i , - , :I and the Oxrord Kanual of Naval War of 1915) among others, and
prohibited by regulations of the United States military for use
in v.’arfare. ̂ • ‘
12. On information and belief, on or about October 3, 1974,
Edward Euge.ne Garner was observed by E.R. Hynion behind a resi-
. 1
! donee located au Vollintine in the City of .Memphis at about '
I 11 P.M. in the evening. ;
j 13. On information and belief, defendant E.R. Hymon, ordered
j the deceased. Garner, to halt, as the deceased was in the process
j of approaching or actually climbing a 6-foot cyclo.ne fence that
I
extended the length of the area behind the residence at 739
Vollintine.
14. \-Jhen the deceased Garner, v;ho at the time of his deatu
i was about five feet tall and under 100 pounds in weight, did net
|| respond to defendant Hymon's order, the defendant Hymon shot the
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7
r o
•Vs/
deceased in the hack of the head with a Rer^„ington 125 grain
jacketed hollow-point bnllet frot. his service revolver.
15. Edward Eugene Garner expired at the scene of the
shooting shortly after sustaining the gun-shot wound to the back
of his head.
16. On information and belief, the deceased. Garner, was
unarmed at the time he was mortally wounded by defendant Hymon.
17. _ In using his service revolver armed with "Duir.-Dur.’,'' typo
bullets, dsfenda.nt E.R. Hynion knew or should have known that his
apprehensxon of Edward Eugene Garner would be effected only at
the cost of severely v/ounding, maiming or killing the fleeing
youtn and 'would prevent, under normal circtur.stances,
Garner's being subjected to the due process protections of being
formally charged, tried by a court or jury, and, if guilty,
punished by incarceration or probation. Defenda.nt E.R. Kyip.on
knew or should have k.nown, that his shooting of Garner would
inflict £u.mmary capital punishme.nt, a penalty which even a court
of law could .not i.-pose consonant with rhe Eighth and Fourteenth
Amendme.nts at the time the incident in question occurred.
IS. The wounding and killing of the deceased. Garner, by
I defendant, Kinnon, constituted a wanton, willful, malicious anq/or'
neglige.nt violation of the deceased's right not to be subjected '
to summary punishment and death at the hands of a law enforce- ■
ment orricer, but rather to be charged and tried before a court
of law and convicted, if guilty, for any crimes he allegedly
committed as guaranteed by the Fifth, Sixth, and Fourteenth '
A.nendments to the United States Constitution, specifically by
the Due Process Clauses of the Fifth and Fourteenth Amendments.
19. The wounding and killing of the deceased. Garner, by
defendant, Hinnon, constituted a wanton, willful, malicious and'or !
negligent violation of the deceased's right not to be subjecteci
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8
JLL
to unreasonable seizures of his body as guaranteed by the Fourth
and Fourteenth Amencbnents to the United States Constitution. In
view of the fact that the deceased was unarmed and posed no
r
!| threat to the life or person of the defendant, Himion, or any ■
j third person, the officer's resort to let.nal force was unnecessary
j| and unreasonable, designed not to apprehend the deceased, but
rather to cause his death or grievous bodily harm to him.
j i 20. - The v.'oundi.ng and hilling of the deceased. Garner, by
i
defendant, Hvmon, constituted a wanton, willful, malicious andii
ji neglige.nt violation of the deceased's raght not to be subjected
ji|i to cruel a.nd u.nusual punishiT.ent as guaranteed by the Eighth and
I i Fourteenth Ame.ndments to the United States Constitution in that ^
I •
;1 the lethal force used by defendant, Kvmon, v;as unreasonable and■I ‘ :
■I unnecessary to apprehend the deceased. Instead, the force used
j|
ji was excessive in that the nacural and reasonable co.nsecuence ofl!
II of its application to the deceased v;as death or grievous bodily
ii
jj har.m. ;
As a result of his v.'ounding, the deceased, Gar.ner,
suffered and v;as forced to endure intense uain and sufferi.ng-i ' ' *!; prior to succumbing to the mortal damage sustained by his body.1 ■ i!ji 22. The wounding a.nd killing of the deceased. Garner, by
!ij defenda.nt, Hymon, occurred because the deceased v;as black, that
i! is to say, lethal force would not have been resorted to under
i in
the circumstances had the deceased been white. In that reg
the deceased was deprived of his right to equal protection
laws irrespective of race as guaranteed by the Fourteenth
!'; Amendment to the U.nited States Co.nstitution and by 42 U.S.A.i|ji § 1981.
- 7 -
12
I
23.
22 above
■1 24.
Second Claira for Relief
Plaintiff reasserts and toallegcs paragraphs 6 through
The wounding and killing of the deceased. Garner, by
I defenda.nt, hyir.on, in violation of the deceased's rights guaran- ■
j oeed by tne Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments'
to the Unrtec States Constitution, was a direct and pro.ximate
Ij result of the defendant, Memphis Police Daparc.mcnt' s hiring of
defendant, Kymon, despite the fact that it knew or should have '
known that defendant, Kv-mon, was unsuitea to perform the duties
of a law enforceme.nt officer and that his employment in that
capacity would result in his causing grievous bodily injury or '
death to persons in the City of Memphis ;
I 25. The v;ounding and killing of the deceased. Garner, by
I defendant, Hymon, in violation of the deceased's rights guaran-
I teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments
I to the U.nited States Constitution was a direct and proximate
j result or the derendant, Memphis Police Department's hiring
I defendant, Hymon, as a law enforcement officer with the authority
and capacity to cause grievous bodily injury to persons in the
j City of Memphis without providing him with adequate trai.ning in
jj the use of weapons ge.nerally and in the proper use of non-lethal
|l
I and lethal rorce in making apprehensions.
2<̂ - The wounding and killing of the deceased. Garner, by
defendant, Kymon, in violation of the deceased's rights guaranteed
by the Fourth, Fifth, Sixth, Eighth and Fourtee.nth AmendmiCnts to
the United States Constitution was a direct and proximate result
of the defendant, Memphis Police Department's hiring defendant,
Hymon, as a law enforcement officer with the authority and capa
city to cause death or grievous bodily harm to persons in the
10
13
li
II
-1 ■ i
city of Memphis without providing him with adequate training in j
the use of weapons generally and in the proper use of non-lethal :
• Iand lethal force in making apprehensions and, in reckless and !
inegligent disregard for his lack of training, issuing him "Dum- ;
Dum" type bullets, the use of which could result only in death *
1
or grievous bodily injury. ,I
27. The wounding and killing of the deceased. Garner, by the i
defendant, Hymon, in violation of the deceased's rights guaranteed
by the Fourth, Fifth, Sixth, Eighth and Fourtee.nth .Amend-oents to
the United States Co.nstitution was a direct and proximate result
of defe.ndant, Memphis Police Department's (a) providi.ng authori
zation to officers such as defendant Kymo.n ro shoot to prevent
the escape of persons suspected of committing certai.n non-violent '
felonies but who pose no threat to the life or physical safety ■
of the officer or of third persons and (b) arming such officers
with "Dum-Dum" type bullets that assure that the alleged felon
will be grievously wounded or killed instantly obviating any i
possibility that the suspect will be brought to justice in accord
ance with accepted notions of due process. I.n so doing, the
defendant, Memphis Police Department, authorized the imposition
of summary punishment not the apprehension of criminal suspects
for disposition by the legal process.
28. As a consequence of the reckless and negligent conduct
of the defendant, Memphis Police Dcpartme.nt, as set forth in
paragraphs 24 to 27 above, the defendant, Hym.on, resorted to the
use of lethal force where non-lethal force was appropriate,
mortally wou.nding the deceased. Garner.
11
14
Third Claim for Relief ' i
— — -- ’ j
I
̂ I
29. Plaintiff reasserts and realleges paragraphs 6 through '
• ' I
22 above. ‘
I
30. The wounding and hilling of the deceased. Garner, by l
defendant, Hyrron, in violation of the deceased's rights guaranteed
i|
jl t.ne Fourth, Fift.n, Sixth, Eighth and Fourteenth Amendments to
!' . •i| the United States Co.nstitution was a direct a.nd proximate result
jl of the defe.nda.nt. Jay V7. Hubbard's hiring of defendant, Hymon,
!]
ij despite the fact that defendant, Hubbard, Knew or should hove
l| ,
jl Knov/n that dexendant, Hymon, was unsuited to perfor.m the duties
ii
ji of a law enforcement officer and that his employment in that '
ij capacity v;ould result in his causing grievous bodily injury or
II death to persons in the City of Memohis
I •|l :
|| 31. The wounding and killing of the deceased, Garner, by !
ji ' HyKion, in violation of the deceased's rights guaranteed
ji by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendme.nts toii . :
j the United States Constitution was a direct result of defendant,
I Jay W. Hubbard's hiring defendant, Hym.o.n, as a law enforcement =
i officer with the authority and capacity to causa death or grievous
I bodily injury to perso.ns in the City of Memphis without oroviding
[ ~ ;
t him with adequate rraining in the use of weapons generally and in
the proper use of non—lethal and lethal force in making appre1
iiI hensions.!l
I 32. The wounding and killing of the deceased, Garner, by
I
j defenda.nt, Hymon, in violarion of the deceased's rights guara.ntaeci
I by the Fourth, Fifth, Sixth, Eighth a.nd Fourteenth Amendments to
1 the United States Constitution was a direct and proximate result
I
i! of defendant. Jay VI. Hubbard's hiring defendant, Hymon, as a law
j j e.nforceme.nt officer with the authority and caoacity to causeIj
Ij death or grievous bodily harm to persons in the City of Memphis
:j .|i without providing him with adequate training in the use of weapons
- 10
1
15.
j
Fourth Claim for Relief' ' ■ ■ ' ■ ..i.~ I
ii
35. Plaintiff reasserts and realleges paragraphs 6 through i
22 above. i
I
36. The wounding and killing of the deceased. Garner, by !
I
I defendant, Hynion, in violation of the deceased's rights guaran—
! teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amend-
j ments to the United States Constitution v̂ as a direct and proximate
presuit of the defendant. City of .Merr.ohis' hiring of defendanti!I I Hymon, despite the fact that defendant City of Memphis knew
jj or shoula have known that derendant, Kymon, was unsuited to
jl
!i perform the dvities of a lav.’ enforcement officer and that his
It eniployiiient in that: capacity would result in his causing grievous!i _ ■
|! bodily injury or death to persons in the City of Memphis. '
[i ■ :[I "̂7. The wounding and killing of the deceased. Garner bv
!j . . . ■ ;!i defendant, Hynion, in violation of the deceased's rights guaran—
|i i
|| teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth I
!! Amendiments to the United States Constitution was a direct result I
jl iI of defendant City of Memphis' hiring defendant Hymon as a law
I enforcement officer with the authority and capacity to cause
i
I death or grievous bodily injury to persons in the City of Memphis
! without providing him with adequate training in the use of ;
I weapons generally and in the proper use of non-lethal force in :
!making apprehensions.
li 38. il
I!
The wounding and ):illing of the deceased. Garner, by
jidefendant, Hymon, in violation of the deceased's rights guaran-
I teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth
Amendjr.ents to the United States Constitution was a direct and
proximate result of defendant, City of Memphis' hiring defendant
Hymon as a law enforcement officer with the authority and
12 -
14
T7
capacity to cause death or grievous bodily harm to persons in |
i
the City of Memphis without providing him with adequate training ;
in the use of weapons generally and in the proper use of non- i
j lethal and lethal force in making apprehensions and, in reckless
and negligent disregard for his lack of training, issuing him
"Dum-Dum" type bullets for his use on duty, the use of which
could result only in death or grievous bodilv injurv.
j 39. • The wounding and killing of the deceased Garner, by
I defendant, Hymon, in violation of the deceased's rights guaran-
! teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amend-
i
j merits to the United States Constitution was a direct result of
I
jj defendant City of Memphis' (a) providing authorization to officers
jl such as defendant Hymon to shoot to prevent the escape of persons ■
jl suspected to coin.mitting certain non-violent felonies but who
pose no threat to the life or physical safety of the officer
or of third persons and (b) arming such officers v/ith "Dum-Dum"i: J
j| type bullets that assure tliar the alleoed felon will be grievously
il wounded or killed instantly obviating any oossibilit'^^ that theII " ■ I
!{ suspect will be brought to iustice in accordance with accentedh
!'n notions of due process. In so doing, the defendant. City of •
II • '|j Memphis, authorized the imposition of surmtary punishur.e.nt not
li
!i the apprehension of criminal susoects for disDosition bv the!i ' ' ‘ 'I legal orocess. ;
!i
jl 40. As a consequence of the reckless and neglige.nt conduct
ji
II of the defendant. City of .Memphis, as set forth in oaragraohs
’ ' ' ' |! 36 to 39, the defendant Hymon resorted to the use of lethalj l
ij force where non-lcthal force was appropriate, mortally woundijig
the deceased. Garner.
- 13
15
Fifth Claim for Relief '
41.
Ij 22 above.
I 42.
Plaintiff reasserts and realleges paragraphs 6 through
The wounding and killing of the deceased. Garner, by
I defendant, Hynion, in violation of the deceased's rights guaran-
j teed by the Fourth, Fifth, Si.xth, Eighth and Fourteenth
Amencto.ents to the Constitution was a direct and proximate result
of defendant Kyeth Chandler's publicly c.xprcssed support for and
approval of, as a member of the City Council and since becoming
Nayor or tne City Council, shooting by officers of the Memphis
Police Department to prevent the escape of persons suspected of
coimritting certain non-violent felonies but v;ho pose no threat '
I to the life or physical safety of the officer or of third persons
I despite the fact that he knew or should have known that: (a) The
Memphis Police Department was hiring persons as police officers '
who were unsuited to perform the duties of law enforcement |
ofriccrs and whose hiring would result in their improperly causing
grievous bodily injury or death to persons in 'che City of Memphis J
(b) The Memphis Police Department was hiring persons as police
officers with the authority and capacity to cause death or griev- ;
I ous bodily injury to persons in the City of Memphis without
I providing them v;ith adequate training in the use of weapons
i I
generally and in the proper use of non-lethal and lethal force
in .making apprehensions; (c) The Memphis Police Department was
arming police officers with "Dum-Dum" type bullets, the use of
whicn could result only in death or grievous bodily injury, there
by preventing any disposition of an alleged felon in accordance
v/ith accepted notions of due process.
43. In publicly supporting the shooting by police officers
of the Memphis Police Department to prevent the escape of persons
- 14 -
16
-la
suspected of conmitting certain ncn-violent felonies but who pose
no threat to the life or ph^^sical safety of the officer or of
third persons, despite the factors mentioned in 42(a) through (c)
above, defendant Wyeth Chandler placed the prestige and authority
of his office as City Councilman and later iMayor of Memphis
behind the imposition of summary capital punishment by Memphis
police officers v/hich■official policy was in fact effectuated
|! in the case of the deceased. Garner, as a result of his shcoting
by defendant, Kymon.
Pendent Claim
44. Plaintiff reasserts and realleges paragraphs 1 through
43 above.
45. The foregoing acts of defendants H^mion, Memphis Police
Department, City of Memphis, Hubbard and Chandler which resulted
j in the death of plaintiff's son, Edv/ard Eugene Garner, also
j violated the Constitutio.n and lav/s of the State of Te.nnessee,
!
including but not limited to TENN. Code Ann. § 40-808, as
authoritatively construed by the courts' of Tennessee and served
to deprive the deceased of rights granted by those provisions.'
Prayer
45. Plaintiff respectfully requests that ccmpe.nsatory and
punitive damages be awarded under the federal claims in the total
amount of One Million Dollars ($1,000,000) for which the defend
ants are jointly and severally liable.
! 47.III
Plaintiff respectfully requests that compe.nsatory and
j| punitive damages be awarded under the pendent claim in the total
I amount of One Million Dollars ($1,000,000) for which the dofend-
; ants Hy.mon, Hubbard and Wyeth are jointly and severally liable,
- 15 -
17
20
and reasonable hospital, metical, funeral expenses and expenses ̂
of administration necessitated by reason of injuries causing !
death to the deceased. Garner. j
48. Plaintiff also requests that this Court grant declaratory'
relief pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that the !
use of "Dum-Dum" type bullets by Memphis Police officers to i
!
apprehend persons fleeing from the alleged commissio.n of non- i
violent felonies who pose no threat to the life or physical |
safety to officers or of third persons violates the Fourth, ■
Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitu
tion and federal laws enacted pursuant to those Amendments.
49. Plai.ntiff respectfully requests that costs and counsel
fees be aw’ardcd and that such other, further and additional
relief as may appear to the Court to be just and equitable be
granted.
Respectfully submitted.
Dated:
V7.ALTER DEE BAILEY, JR.
D'AR.MY BAILEY
Suite 901, Tenoke Building
161 Jefferson .Avenue
Memphis, Tennessee 38103
uACK GREENBERG
CHARLES STEPHEN RALSTON
DREVJ S. D.AYS, III
10 Columbus Circle
New York, New York 10018
Attorneys for Plaintiff
16 -
I S
21
7 ^ ' /!'r
IN THE UNITED STATES DISTRICT COURT
FOR THE iVESTERN 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.
CIVIL ACTION
Nc. C-75-145
MOTION TO DISMISS IN BEHALF OF DEFENDANTS
COME NOW the Defendants, Memphis Police Department., City
of Memphis, Wyeth Chandler, Jay W. Hubbard, and E. R. Hyiaon, and
move the Court to dismiss the Complaint filed in this cause pursuant
to the Federal Rules of Civil Procedure and in support thereof state
as follows:
1. The Complaint fails to state a cause of action upon
which relief can be granted.
2. The City of Memphis and the Memphis Police Department
are not persons within the meaning of the Civil Rights .Act.
3. The City of Memphis is not a person within the
meaning of the Civil Rights Act which would make it subject to
equitable relief such as an action for a declaratory judgment.
4. The Doctrine of Respondeat Superior is not applicable
to the City of Memphis and the Memphis Police Department under the
Civil Rights Act and the laws of the State of Tennessee.
5. The City of Memphis is not liable for torts
committed by its police o.fficers under the Doctrine of Governmental
Iimnunity.
19
J
6. The Doctrine of Respondeat Superior is not applicable
to Wyeth Chandler, Mayor of Memphis, and Jay W. Hubbard, Director
of Police of Memphis, and these Defendants are not liable under the
Civil Rights Act while acting in a supervisory capacity, absent
allegations in the Complaint of direct personal participation.
7. The Complaint fails to state a cause of action upon
which relief can be granted with regard to the hiring practices and
training programs implemented by the City of Memphis, the Memphis
Police Department and Jay W. Hubbard, Director of Police.
8. The Complaint fails to state a cause of action upon
which relief can be granted with regard to Wyeth Chandler, Mayor of
Memphis, and his "public support" of the policies and practices of
the Memphis Police Department and its officers.
9. Memphis Police Department, City of Memphis, Wyeth
Chandler and Jay W. Hubbard are not liable for any claims based
upon violation of State law under Doctrine of Pendent Jurisdiction.
/
V
/ X-
Henryy'L. Klein, Staff Attorney
City of Memphis
Attorney for Defendants
Suite 3500 - 100 N. Main Bldg.
Memphis, Tennessee 38103
Certificate Of Service
I, Henry L. Klein, hereby certify that a copy of the
foregoing Motion to Dismiss has been forwarded to Mr. VJalter Lee
Bailey, Jr., Suite 901, Tenoke Building, 161 Jefferson Avenue,
Memphis, Tennessee, and Mr. Drew S. Days, III, 10 Columbus Circle,
New York, New York 10019, Attorneys for Plaintiff, on this the
day of May, 1975.
Hen^y L. Klein
2 - 20
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CLEAMTEE GARNER,
Plaintiff,
MEMPHIS POLICE DEPARTMENT,
et al.
Defendants.
NO. C-75-145
ORDER ON
MOTION TO DISMISS
This is an action for compensatory and punitive
damages brought by the father of Edward Eugene Garner, a black
youth who allegedly was fatally shot by a Memphis police officer,
defendant E. R. Hyman, on October 3, 1974. It is alleged that the
type of bullet with which Garner was shot, a Remington 125 grain
jacketed hollow point bullet or "Dum Dum" type bullet, was of such
a known lethal quality that its use in the apprehension of Garner
was cruel and inhuman punishment; summary punishment denying Garner
the right to trial by jury and due process of law; an unreasonable
seizure of the body of Garner; and further it is asserted that the
shooting was racially motivated and thus a denial of equal protec
tion of the laws, all in violation of constitutionally protected
rights and interests.
The Memphis Police Department, the Director of Police,
Jay W. Hubbard, Mayor Wyeth Chandler, and the City of Memphis are
also defendants, in addition to the individual police officer. In
addition to the claim for damages for violation of federal rights,
plaintiff seeks wrongful death damages under Tennessee law as a
21
pendent claim and a declaratory judgment that use of the "Dum Dum"
type bullets by police officers to apprehend suspected fleeing
felons is unconstitutional.
The action is presently before the Court on the
defendants' jointmotion to dismiss. Numerous grounds are assigned
in the defendants' motion: (1) failure to state a claim upon which
relief can be granted; (2) the City and the Police Department are
not "persons" within the meaning of the Civil Rights Act of 1871; (3)
the City is not a "person" under the Civil Rights Act and is not sub
ject to the equitable relief plaintiff seeks; (4) the doctrine of
respondeat superior is not applicable to the City and Police Depart
ment under the Civil Rights Act and the law of Tennessee; (5) the
City is protected by the doctrine of governmental immunity, (6) the
doctrine of respondeat superior is not applicable to the Mayor and
Director of Police acting in their official, supervisory capacities,
and (7) denial of liability for the pendent state law claim.
For present purposes, the various grounds stated in
the motion fall into two categories, those essentially coming within
Fed. R.Civ.P. 12(b)(6) - "failure to state a claim upon which relief
can be granted" - and those falling within Fed.R.Civ.P. 12(b)(2) -
"lack of jurisdiction over the person."
The Court is satisfied that the Rule 12(b) (5) element
of defendants' motion must fail. A complaint should not be dismissed
for failure to state a claim "unless it appears to a certainty that
plaintiff is entitled to no relief under any state of facts which
could be proved in support of the claim." 2a Moore's Federal Practice,
S12.08 (1974). See Azar v. Conley, 456 F.2d 1382, 1384 and n. 1 (6th
Cir. 1972) . Construed liberally and in a reason^le light, as it must
be, the complaint in this action sets out at least justiciable claims
22
- 2 -
against each of the defendants.
The jurisdictional issues are not so easily resolved.
The co.Tiplaint asserts that the action is brought pursuant to 42
U. S.C. §§1981, 1982, 1983, 1985, 1986 and 1988 to redress the depri
vation of rights, privileges and immunities secured by the Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments. Jurisdiction is
said to be conferred by 28 U.S.C. §1343(3) and 28 U.S.C. §1331.
Jurisdiction is properly conferred by 28 U.S.C.
§1343 as to all defendants except the City of Memphis and the Memphis
Police Department. Insofar as plaintiff asserts a claim for relief
under 42 U.S.C. §§1981, 1982, and 1988, this Court has jurisdiction
over the City and the Police Department as well as over the other
defendants. However, it is well established, and conceded by the
plaintiff, that the City and the Police Department are not "persons"
within the meaning of 42 U.S.C. §§1983, 1985 and 1986, and this
Court has no jurisdiction under 28 U.S.C. §1343 as to claims under
those sections against the City and Police Department. Monroe v.
Pape, 365 U.S. 167 (1961); City of Kenosha v. Bruno, 412 U.S. 507
(1973) .
The plaintiff contends, however, that general federal
question jurisdiction under 28 U.S.C. §1331 exists for the very
claims against the City and Police Department which cannot be based
on 28 U.S.C. §1343. Barred from a claim under 42 U.S.C. §§1983, 1985
and 1986, because of the "municipal immunity' recognized in Monroe
V . Pape, supra, plaintiff would cast his claim against the City and
Police Department as based not on the Civil Rights Act of 1871, but
rather, on the Constitution itself. Thus, plaintiff contends his
claim is for violation of constitutionally recognized rights, his
claim therefore "arises under the Constitution," and the alleged
matter in controversy exceeding $10,000, general federal question
23
- 3 -
jurisdiction is proper.
Faced with the issue whether municipal immunity was
applicable to §1331, the district court in Dahl v. City of Palo Alto,
372 F.Supp. 647, 650 (N.D. Calif. 1974) stated;
If jurisdiction will lie under
§1331 in a case such as this one, the
application of the Monroe bar on suits
against municipalities is limited to
those cases where less than $10,000 is
in controversy. What appears to be the
broad substantive significance of Monroe
is then reduced, in many cases, to a
mere pleading rule.
Nonetheless, the court in Dahl, supra, held that a
municipality is suable under §1331 if the federal question is shown
and the required jurisdictional amount is in controversy. That con
clusion was found to be required under the implied holding of City
of Kenosha v. Bruno, supra. The court in Dahl further concluded
that "Examination of the legislative histories of §§1983 and 1531
suggests that the bar against suing a municipality under §1983 should
not be read into §1331." 372 F.Supp. at 650. Section 1331 was first
enacted in 1875 and was "the culmination of efforts dating back to
the first Congress to give general federal question jurisdiction to
the federal judiciary." at 651.
Although not clearly stated, the implication of
Justice Rehnquist's opinion for the court in City of Kenosha v.
Bruno, supra, is that §1331 may be an available jurisdictional al
ternative to a plaintiff with a claim against a .municipality which
is barred under the Civil Rights Act of 1871. On remand, the district
court was instructed to consider whether the requisite $10,000 amount
in controversy was present so as to confer §1331 jurisdiction. 412
U.S. at 513-14. The opinion implies that §1331 may be an available
alternative to §1343 if the amount in controversy element is present.
24
- 4 -
The concurring opinion of Justice Brennan, joined by Justice Marshall,
indicates his understanding that the court was holding that §1331 is
an independent alternative to §1343. at 516. For this propo
sition, Justice Brennan cites Bell v. Hood, 327 U.S. 678 (1946) and
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) .
Bell and Bivens both involved actions for damages
brought against federal law enforcement officers for alleged viola
tions of constitutional rights in the manner in which the plaintiffs
had been arrested and subjected to searches. In Bell, the Supreme
Court held that where alleged violations of the Constitution con
stituted "the sole basis of the relief sought" and decision on the
merits of the plaintiffs' claims necessitated "a determination of
the scope of the Fourth and Fifth Amendments' protection from un
reasonable searches and deprivations of liberty without due process
of law," federal jurisdiction existed.
In Bivens, the court held, in the words of Justice
ilarlan in his scholarly concurrence: " . . . federal courts do have
the power to award damages for violation of 'constitutionally pro
tected interests' and . . . a traditional remedy such as damages is
appropriate to the vindication of the personal interests protected
by the Fourth Amendment." 403 U.S. at 399.
Bell and Bivens, however, are distinguishable from
the case at bar in that they both were actions against federal officers,
not state or local officers, and in the absence of a remedy provided
by federal statutory law, the plaintiffs successfully argued that
their claims of constitutional rights violations conferred general
federal question jurisdiction on the district court. Where, however,
the alleged violation of constitutional rights was committed by state
officers. Congress has provided a statutory remedy in the Civil Rights
5 -
25
Act of 1871. It seems logical that a plaintiff whose claim other
wise is squarely within the compass of 42 U.S.C. §§1983, 1985 and
1985 except for the municipal immunity recognized in Monroe v. Pape,
supra, ought not be allowed to evade the clear import of Monroe
through use of 28 U.S.C. §1331. Where Congress has provided spe
cific remedial statutes exactly applicable to a plaintiff's cause
of action, it is not unreasonable to say that the plaintiff must
fall within the confines of that statutory scheme and its judicial
limitations.
Despite the implications of City of Kenosha v. Bruno,
supra, this Court feels that §1331 is not an available alternative
to §1343 where the latter is Lmpermissable because a municipality is
sued under the Civil Rights Act of 1871. The defendant' motion to
dismiss might be ordinarily granted as to the City and the Police
Department except for the substantial weight of authority to the
contrary. See, e .g ., Pitts v. Chandler, Civil No. C-74-306 (W.D.
Tenn., Memorandum Decision and Order, filed Sept. 16, 1974, Judge
Bailey Brown); Dupree v. City of Chattanooga, Tenn., 362 F.Supp.
1135 (E.D. Tenn. 1973) , Judge Frank W. Wilson) ; Dahl v. City of Palo
Alto, supra; Cardinale v. Washington Technical Institute, 500 F.2d
791, 795 at fn. 4 (D.C. Cir. 1974); United Farmworkers of Fla. Housing
Project, Inc, v. City of Delray Beach, 493 F.2d 799, 801-802 (5th Cir.
1974); Traylor v. City of Amarillo, Texas, 492 F.2d 1155, 1157 at fn.
2 (5th Cir. 1974); Cf. Jorden v. Metropolitan Utilities District, 498
F.2d 514 (8th Cir. 1974).
The Sixth Circuit case of Bosely y. City of Euclid,
495 F.2d 193 (6th Cir. 1974) also indicates that a city might be
subject to a ciyil rights claim under Sec. 1331 jurisdiction. This
Court feels that logically the City and its Police Department should
2G
- 5 -
be exempt or immune from this type of claim under a 42 U.S.C.
§1983 et seq. cause of action whether jurisdiction is asserted under
§1343 or §1331 under Monroe v. Pape, supra, rationale. By inference,
however, as indicated, appellate courts have indicated to the contrary.
Defendants' motion to dismiss is overruled^ reluctantly
as to the City of Memphis and the Police Department, on the §1331
jurisdictional basis.
This _________ day of August, 1975.
1-, c
•DNITED STATES DISTRICT COURT JUDGE
L
27
- 7 -
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENIJESSEE
WESTERN DIVISION
I
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.
CIVIL ACTION
No. C-75-145
ANSWER OF DEFENDANTS
COMES NOW the Defendants, Memphis Police Department,
City of Memphis, Tennessee, Wyeth Chandler, Jay W. Hubbard, and
E. R. Hymon and while reiterating and relying upon each and every
ground set forth in their Motion to Dismiss, heretofoi'e filed in
this cause, for answer to the Complaint filed herein state as
follows:
FIRST DEFENSE
1. Complaint fails to state a cause of action upon
which relief can be granted.
SECOND DEFENSE
1. Defendants admit the averments set out in Paragraph
1 of the Complaint.
2. Defendants deny that this Court has jurisdiction
as averred in Paragraph 2 of the Complaint.
28
3. Defendants deny that the shooting and killing
of Edward Eugene Garner by a police officer of the City of
Memphis also deprived the deceased of rights, privileges, and
immunities secured him by the Constitution and laws of the State
of Tennessee. Defendants deny that this action is a proper one
for damages for wrongful death and survival and further deny that
this is a proper action for violations of the deceased's state-
conferred rights through exercise of this Court's pendent juris
diction .
4. Defendants are vjithout information sufficient to
form a belief as to the truth of the averment set out in Paragraph
4 of the Complaint with regard to Plaintiff Cleamtee Garner being
an adult black citizen of the United States and the State of
Tennessee residing in Memphis, Shelby County, Tennessee, and that
he is the father and next of kin of Edward Eugene Garner, deceased
minor, who died on October 3, 1974, and, therefore, deny same.
Defendants deny that the death of Edward Eugene Garner was a result
of Defendants' policies, practices, customs, and usages. Defendants
are without information sufficient to form a belief as to the truth
of the averment set out in Paragraph 4 to the effect that at the
time of his death, Edward Eugene Garner, resided with Plaintiff and,
therefore, deny same. Defendants admit that Edward Eugene Garner
was fifteen (15) years old at the time of his death.
5. Defendants admit the averments set out in Sub-
Sections (a), (b), and (e) of Paragraph 5 of the Complaint.
With regard to Sub-Section (c) of Paragraph 5 of
the Complaint, Defendants admit that Wyeth Chandler is Mayor of
the City of Memphis and as such is its chief executive officer and
further admit that prior to becomming Mayor on January 1, 1972,
Defendant Chandler was a member of the Memphis City Council, the
City's legislative body. Defendants deny that Chandler is
responsible for all policies and practices and actions or omissions
- 2 - 29
of the Department and has the duty to preserve to all citizens
the rights, privileges, and immunities secured by the Constitution
and laws of the United States.
With regard to Sub-Section (d) of Paragraph 5 of the
Complaint, Defendants deny that J. W. Hubbard is at this time
Director of Police of Memphis. However, they admit that on
October 3, 1974, he was Director of Police of Memphis, and in
that capacity, as chief executive officer of the Memphis Police
Department, he was responsible ̂ for establishing general practices,
procedures, and policies with respect to the operation of that
Department. Defendants further admit that pursuant to that
authority he has promulgated regulations relating to the use of
lethal force by Memphis officers and has authorized the use of
weaponry and ammunition by police officers in certain instances.
Defendants deny that any regulations promulgated by Defendant
Hubbard in his official capacity or individually, directly or
indirectly, violated the constitutional rights of the deceased.
6. Defendants admit the averments set out in Paragraph
6 of the Complaint.
7. Defendants admit the averments set out in Paragraph
7 of the Complaint, however. Defendants aver that not all revolvers
are issued by the Department as some are privately owned.
8. Defendants admit the averments set out in Paragraph
8 of the Complaint.
9. Defendants admit that the Remington 125 grain
jacketed hollow-point bullet is a member of a class of projectile
sometimes referred to as "Dum-Dum" bullets. However, Defendants
deny that it is commonly referred to by that name and aver that
proper designation of such bullets is "controlled expansion
projectiles." Defendants are without information to form a belief
as to the truth of the averment that the bullets wore named after
- 3 - 3(J
an arsenal near Calcutta, India, and, therefore, deny same.
Since the Complaint does not define the meaning of "traditional
cartridges," Defendants are without information sufficient to
form a belief as to the truth of the averment set out in
Paragraph 9 of the Complaint with regard to the "Dum-Dum" bullets
possessing the very special quality of expanding and flattening
more easily in the human body than traditional cartridges, and,
therefore, deny same.
10. Defendants deny the averments set out in Paragraph
10 of the Complaint.
11. Defendants admit that the "Dum-Dum" type bullets
have been outlawed in international warfare, but deny that it is
because of the devastating effect it has upon the human body and
aver that it has no more devastating effect on the human body than
land mines, mortars, recoilless rifles, artillery, and atomic
weapons which have not been outlawed.
12. Defendants admit the averment set out in Paragraph
12 of the Complaint.
13. Defendants admit the averments set out in Paragraph
13 of the Complaint.
14. Defendants deny the averments set out in Paragraph
14 with regard to the height and weight of the deceased Garner,
however, they admit he did not respond to Defendant Hymon's order
to halt and was shot with a Remington 125 grain jacketed hollow-
point bullet from his service revolver. Defendants deny that the
deceased was shot in the back of the head and aver that he was
actually shot in the side of the head.
15. Defendants deny the averments set out in Paragraph
15 of the Complaint.
16. Defendants admit that the deceased Garner was
unarmed at tha time he v/as shot by Defendant Hymon.
4 - 31
17. Defendants deny the averments set out in Paragraph
17 of the Complaint.
18. Defendants deny the averments set out in Paragraph
18 of the Complaint.
19. Defendants deny the averments set out in Paragraph
19 of the Complaint.
20. The defendants deny the averments set out in
Paragraph 20 of the Complaint.
21. Defendants are without information sufficient to
form a belief as to the truth of the averment set out in Paragraph
21 of the Complaint and, therefore, deny same.
22. Defendants deny the averments set out in Paragraph
22 of the Complaint.
23. Defendants deny the averments set out in Paragraphs
24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 42, 43,
and 45 of the Complaint.
24. Defendants deny that they are liable for damages,
either compensatory or punitive, under any Federal claims and
further deny that Defendants Hymon, Hubbard, and Chandler are liable
for damages, either compensatory or punitive, under the pendent
claim.
25. Defendants deny that Plaintiff is entitled to
declaratory relief pursuant to 28 U.S.C., Sections 2201 and 2202,
declaring that the use of "Dum-Dum" type bullets by Memphis Police
Officers to apprehend persons fleeing from the alleged commission
of non-violent felonies who pose no threat to the life or physical
safety to officers or third persons violates the 4th, 5th, 6th, 8th
and 14th Amendments to the Constitution and the Federal laws enacted
pursuant to those Amendments.
5 -
32
1. For further answer to the Complaint, Defendants
aver that on October 3, 1974, Defendant E. R. Hymon and his
partner received a call to go to a residence at 737 Vollintine
Street, Memphis, Tennessee, and they arrived upon the scene
at approximately 11:00 P.M. where they were met by the occupant
of 737 Vollintine, who advised them that the house next door at
739 Vollintine was being burglarized. Defendant Hymon ran back
to his squad car, got his flashlight and advised his partner that
someone was breaking in next door at 739 Vollintine. Defendant
Hymon ran to the rear of the house and heard ^he rear door slam
and a noise on the back fence. He shined his'flashlight on the
!
fence and spotted the deceased on the fence at that time. He
then called out for the deceased to halt. The deceased continued
to scale the fence, at which time Defendant Hymon fired one shot
hitting the deceased in the side of the head.
2. Defendants aver that the actions of Defendant
Hymon are governed by TCA 40-808, which reads as follows:
"Resistance to Officer -- If, after notice
of the intention to arrest the defendant,
he either flee or forceably resist, the
officer may use all the necessary means to
effect the arrest.”
All allegations contained in the Complaint that are
neither admitted nor denied are here and now denied as though
specifically denied.
And now having fully answered. Defendants pray that this
Complaint be dismissed and'the costs be adjudged against the
Plaintiff.
THIRD DEFENSE
% I C
Henry L.yKlein, Staff Attorney
City of Memphis
Attorney for Defendants
Suite 3500, 100 North Main Bldg.
Memphis, Tennessee 38103
3 a
- 6 -
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.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CIVIL ACTION
No. C-75-145
PLAINTIFF'S FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Federal Rules of Civil Procedure,
plaintiff hereby requests that the Memphis Police Department,
the City of Memphis, Wyeth Chandler, Jay W. Hubbard, and E. R.
Hymon, each a defendant in this action, produce and permit
plaintiff and his representatives to inspect and copy the
documents specified below which are within their possession,
custody or control or in that of any of their affiliates or
representatives.
The documents requested are to be produced at the offices of
Drew S. Days, III, Esq., one of the attorneys for plaintiffs.
Suite 2030, 10 Columbus Circle, New York, New York 10019, within
thirty (30) days after the date of this request. If the production
of any document, or any part of a document is objected to on qrouncls
of privilege or otherwise, each such document should be specifi
cally identified, with a description of the document (e.g.,letter,
34
o
memorandum. Report, etc.), the general topic, the title and date,
the number of pages, the name and position of the author and of
each addressee or recipient, the location of each copy of such
document and the grounds for refusing to produce such document.
The term "Document" as used herein has the same meaning
as in Rule 34(a), Federal Rules of Civil Procedure, and includes
without limitation, all case records, incident reports, investi
gating officers' reports, witnesses' statements, police log book
entries, photographs, papers, correspondence, memoranda, notes,
recordings, transcripts of recordings, transcripts, films,
communications and other records. The documents requested are
those in the possession or control of defendants, their attorneys
or agents. In any case where duplicate copies of the same
document exist, all copies should be produced which contain any
writing or notes which do not appear on all other copies of the
document. In each case where a document is called for, all
drafts of the document are also called for.
Documents to be Produced
1. All documents regarding, involving, or referring to any
any City of Memphis police officer's contact, investigation
of, or charges against Edward Eugene Garner on or about
October 3, 1974:
2. The City of Memphis Police Department personnel file on
defendant E. R. Hymon;
3. All documents relating to the directives of Wyeth Chandler
and Jay W. Hubbard with respect to the training of Memphis
police officers in the use of lethal force;
4. All documents relating to the directives of Wyeth Chandler
and Jay W. Hubbard with respect to the training of Memphis
police officers in the use of lethal force;
2 - 35
5.
6.
7.
9.
10 .
11.
12.
13.
All documents relating to Wyeth Chandler's or Jay Hubbard's
expressions with respect to the use of lethal force in the
apprehension of criminal suspects or the prevention of
crime;
All documents relating to the selection of the type of
service revolver and service revolver ammunition issued
by the Memphis Police Department for its officers as of
October 3, 1974;
All documents relating to the promulgation of regulations
on the use of lethal force by the City of Memphis Police
Department;
All documents relating to any studies conducted by or at
the request of the City of Memphis Police Department on
the effects of various ammunition used by its officers as
of October 3, 1974 on the human body;
All correspondence, memoranda, reports and other records
of the Memphis Police Department relating to citizen or
departmental complaints against E. R. Hymon pribr to
October 3, 1974;
All records relating to disciplinary action taken by the
Memphis Police Department against E. R. Hymon prior to
October 3, 1974;
All documents relating to any disciplinary action taken
against E. R. Hymon by the Memphis Police Department as a
result of the death of Edward Eugene Garner on October 3,
1974;
All documents setting out the official policies regarding
promotion of police officers of the Memphis Police Department;
All documents relating to the training of Memphis police
officers, generally and to the training of the officers in
the use of lethal and non-lethal weapons, specifically;
- 3 -
3 G
14. All documents relating to incidents in which lethal force
was resorted to by officers of the Memphis Police Depart
ment from January, 1973 to October 3, 1974 including but
not limited to:
a. Official investigation reports
b. Citizen complaints
c. Disciplinary proceedings instituted against
officers resorting to lethal force.
15. An organizational chart of the Memphis Police Department,
showing the names of all supervisory officers and their
respective duties as of October 3, 1974
16. All rules and regulations governing the conduct of police
officers of the Memphis Police Department as of October 3,
,1974
17. The operations manual of the Memphis Police Department as
of October 3, 1974.
Dated October , 1975
JACK GREENBERG
CHARLES STEPHEN RALSTON
DREW S. DAYS, III
10 Columbus Circle
New York, New York 10019
WALTER LEE BAILEY, JR.
D'ARMY BAILEY
Suite 901, Tenoke Building
161 Jefferson Avenue
Memphis, Tennessee 38103
Attorneys for Plaintiff.
- 4 - .3;
o '>!<-hs
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 I-IEMPHIS, 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.
CIVIL ACTION
No. C-75-145
DEFENDANT'S RESPONSE AND OBJECTION TO
PLAINTIFF’S FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS
COME NOW the Defendants, 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, and in response and in objection
to Plaintiff's First Request For Production Of Documents, state
as follows:
tr
3. Defendants object to producing the material requested
in Item 3, Page 2 of Plaintiff's Request on the grounds that the
directives referred to are privileged and further that they are
not material or relevant to this cause of action.
4. Defendants object to producing the material requested
in Item 4, Page 2 of Plaintiff's Request on the grounds that the
directives referred to are privileged and further that they are
immaterial and irrelevant to this cause of action.
5. Defendants object to producing the material requested
in Item 5, Page 3 of Plaintiff's Request on the grounds that it
is too vague, too broad, privileged and further that it is irrelevant
and immaterial to this cause of action.
5. Defendants object to producing the material requested
in Item 6, Page 3 of Plaintiff's Request on the grounds that this
information is privileged and the request is too broad.
7. Defendants object to producing the material set out
in Item 7, Page 3 of Plaintiff's Request on the grounds that it
is too broad.
8. Defendants object to producing the material requested
in Item 8, Page 3 of Plaintiff's Request on the grounds that it
is too broad and further that it is immaterial and irrelevant in
this cause of action.
9. Defendants object to producing the material set out
in Item 9, Page 3 of Plaintiff's Request on the grounds that it
is privileged and further that it is immaterial and irrelevant
to this cause of action.
10. Defendants object to producing the material set out
in Item 10, Page 3 of Plaintiff's Request on the grounds that it is
privileged and further that it is immaterial and irrelevant to this
cause of action.
11. Defendants object to producing the material set out
in Item 11, Page 3 of Plaintiff's Request on the grounds that it is
_ , _ 2d
privileged and that it is immaterial and irrelevant to this cause
of action.
12. Defendants object to producing the material set out
in Item 12, Page 3 of Plaintiff's Request on the grounds that it
is privileged, too broad, and further that it is irrelevant and
immaterial to this cause of action.
13. Defendants object to producing the material set out
in Item 13, Page 3 of Plaintiff's Request on the grounds that it
is privileged, too broad, and further that it is irrelevant and
immaterial to this cause of action.
14. Defendants object to producing the material set out
in Item 14, Page 4 of Plaintiff's Request on the grounds that it
is too broad, it is privileged, and further that it is immaterial
and irrelevant to this cause of action.
15. Defendants object to producing the material set out
in Item 15, Page 4 of Plaintiff's Request on the grounds that it
is immaterial and irrelevant to this cause of action.
16. Defendants object to producing the material set out
in Item 16, Page 4 of Plaintiff's Request on the grounds that it
is privileged, too broad, and furtiier that it is immaterial and
irrelevant to this cause of action.
17. Defendants object to producing the material set out
in Item 17, Page 4 of Plaintiff's Request on the grounds that it
is privileged, and immaterial and irrelevant to this cause of
action.
Dated the / A day of November, 1975.
dd m
Henry L. Klein
Staff Attorney, City of Memphis
Attorney for Defendan-i-s
Suite 3500, 100 North Main 31dg.
Memphis, Tennessee 38103
- 3 40
! \
j
l ( ) V
6
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, £ deceased minor.
Plaintiff,
MEMPHIS POLICE DEPARTMENT; CITY OF
MEMPHIS, Tennessee; \IYETH CHANDLER,
Mayor of Memphis; JAY W. HUBBARD,
Director of Police of Memphis; and
E. R. HYMON, Police Officer of the City of Memphis,
Defendants.
CIVIL ACTION
No. C-75-145
ANSWER TO PLAINTIFF'S FIRST INTERROGATORIES
Comes now the defendant, Wyeth Chandler, and in
accordance with Rule 33, F.R.C.P. and hereby answers those
ii^tsrrogatories propounded to him by the plaintiff.
QUESTION:
1. What is your full name and present address?
ANSWER:
John Wyeth Chandler, 1505 Farrow. Memphis, Tennessee.
QUESTION:
2. What was your occupation or the nature of your
occupation on or about October 3, 1974?
ANSWER:
Mayor of Memphis.
QUESTION:
3. With respect to your occupation or the nature of
your employment on or about October 3. 1974, state:
41
a. The nature of your work and duties;
b. Your particular responsibilities and
authority with respect to the City of Memphis
Police Department.
ANSWER;
a. Executive responsibilities in the operation of the
City of Memphis.
b. Appointment of the Director, the Interim Director
and general authority over the City of Memphis Police
Department.
QUESTION:
Are you familiar with the recruitment procedures and
biring practices of the City's Police Department?
ANSvJER:
Generally.
QUESTION:
5. If the answer to interrogatory is in the affirmative
please indicate:
a. How you obtained such familiarity;
b. The nature of your famxliarity.
ANSWER:
Through discussions with the Personnel Department and
Memphis Police Department of said procedures and practices,
b. Generalized.
QUESTION:
6. Are you familiar with the qualifications necessary for
one to assume a position as a police officer for the City of
Memphis?
Yes.
ANSWER:
-2-
42
QUESTION;
7. If the answer to interrogatory #5 is in the
affirmative, please indicate;
a. How you obtained such familiarity;
b. The nature of your familiarity.
ANSWER;
Through discussions with the Personnel Department
and Memphis Police Department of said procedures and
practices.
b. Generalized.
QUESTION;
8. Are you familiar with the training given to police
iî the use of lethal and non-lethal force in making
apprehens ions ?
ANSl/ER;
Generally.
QUESTION;
9. If the answer to interrogatory #8 is in the affirmative
please state;
a. How you obtained such familiarity;
b. The nature of your familiarty.
ANSWER:
3- Through discussions with the Personnel Department and
Memphis Police Department of said procedures and practices,
b. Generalized.
QUESTION:
S.l Are you familiar with the type of service revolver
issued to officers of the Memphis Police Department as of
October 3, 1974.
Yes.
ANStffiR;
43
-3-
QUESTION:
10. If the answer to interrogatory #9.1 is in the
affirmative, please indicate:
a. How you obtained such familiarity;
b. The nature of your familiarity.
ANSWER:
a. From police leadership and police officers.
b. Inapplicable.
QUESTION:
11. Are you familiar with the type of bullets issued to
officers of the Memphis Police Department for use in their
service revolvers as of October 3, 1974?
ANSWER:
Yes.
I' . . t;- QUESTION:
12. If the answer to interrogatory #11 is in the affirmative,
please indicate:
a. How you obtained such familiarity;
b. The nature of such familiarity.
ANSWER:
a. From police officials.
b. General.
QUESTION:
13. What was the nature of your employment nrior to
assiming your present responsibilities?
ANSWER:
Private attorney and City Councilman.
QUESTION:
14. Were you a member or official of any governmental
bod;>' or agancy of the City of Memphis prior to assuming your
present responsibilities?
44
ANŜ ffiR:
Yes.
QUESTION;
15. If the answer to interrogatory #14 is in the affirma
tive please indicate as follows;
a. The official body or agency of which you were a
member or official;
b. The period of time during which you served as a
member or official;
c. The nature of your official duties, including the
names and functions of any committees on which you
served.
ANSWER;
a. Memphis City Council.
b. January 1, 1963, through December 31, 1971.
c. Legislative actions of the City of Memphis, serving
on the Zoning Committee, Public Relations Committee,
Inter-Govemmental Committee as Chairman of these three
committees. Chairman of the City Council dinring 1971.
Also served as member of the Fire and Police Committee..
QUESTION;
16. In your present capacity, or in any previous capacity
as an official at the City of Memphis, have you had any involve
ment in the promulgation of personnel policies for the Memphis
Police Department in force on October 3, 1974?
ANSWER;
Yes. ,
QUESTION;
17. If the answer to interrogatory #16 is in the affirma
tive, please indicate as follows;
a. The dates of your involvement;
b. The nature of your involvement;
c. Whether you made specific recommendations with
respect to promulgation of Memphis Police Department
personnel policies;
d. The nature of such recommendations;
e. Whether such recommendations were reduced to
writing;
f. To whom such recommendations were made;
g. Whether your recommendations were adopted.
ANSWER;
a. January 1, 1972, to October 3, 1974.
b. As Mayor of Memphis.
c. Yes.
d. Basically that the City of Memphis should seek to
recruit highly qualified black and white officers on the
basis of ability, and that two years of college be required,
bhat hiring and promotions be on the basis of ability end
ability alone.
e. In some cases.
f. Director Jay W. Hubbard, Interim Director W. 0. Crumby,
Personnel Director Henry R. Evans, and Chief Administrative
Officer Clay W. Huddleston.
g. Yes.
QUESTION;
18. In your present capacity, or in any previous capacity
as an official of the City of Memphis, have you had any involvement
in decisions relating to the selection of service revolvers or
ammunition to be used in such revolvers prior to and including
October 3, 1974.
No.
ANSWER;
-6- 46
QUESTION:
19. If the answer to interrogatory #18 is in the affirma
tive, please indicate as follows:
a. The dates of your involvement;
b. The nature of your involvement;
c. Whether you made specific recommendations with
respect to selection of service revolvers or ammunition;
d. The nature of such recommendations;
e. Whether such recommendations were reduced to writing;
f. To whom such recommendations were made;
g. Whether your recommendations were adopted.
ANSWER:
Not applicable.
QUESTION:
20. In your present capacity, or in any previous capacity
as an official of the City of Memphis, have you had any involve
ment in the promulgation of rules and regulations with respect to
the use of lethal force by Memphis Police Officers in force on
October 3, 1974.
ANSWER:
No.
QUESTION:
21. If the answer to interrogatory #20 is in the affirma
tive, please indicate as follows:
a. The dates of your involvement;
b. The nature of your involvement;
c. Whether you made specific recommendations with
respect to the use of lethal force;
d. The nature of such recommendations;
e. Whether your recommendations were reduced to writing;
f. To whom such recommendaticn.s were made;
g. Whether your recommendations were adopted.
-7 -
47
ANSlffiR;
Not applicable.
QUESTION:
22. Have you, in your present capacity or in any previous
capacity as an official of the City of Memphis ever issued
directives on the use of lethal force by Memphis police.
ANSWER;
No.
QUESTION:
23. If the answer to the previous interrogatory is in
the affirmative, please indicate the following:
a. The nature of the directives, specifying the name
and number of aiiy official form used;
b. Whether your directives are still in existence; and
c. What person or agency has custody and control of
the directiv«>s.
ANSWER:
Not applicable.
QUESTION:
24. In your present capacity or in any previous capacity
as an offical of the City of Memphis have you expressed written
or verbal support for the use of lethal force in apprehending
criminals and suspected criminals prior to October 3, 1974.
ANSWER:
Yes.
QUESTION:
25. If the answer to the previous interrogatory is in the
affirmative, please indicate the folli^mg;
a. The substance of each such expression;
b. If written, specify the name and number of any official
form used;
48
-8-
c. Whether these written statements are still in
existence;
d. What person or agency presently has custody and
control of such statements;
e* unwritten, the name and address of each person
who participated in the conversations or communications.
ANSWER:
On January 19. 1972 at 2:00 P.M., the Mayor released a
written statement to the news media wherein he stated that con
cerning an incident the night before involving members of the
Memphis Police Department, with the information that had been
furnished to him up to that point, he was of the opinion that
the action taken by the Police Department was in line with
previous policy and in line with any future policy that may be
developed.
The Mayor stated that an interim policy should be devis’d
by the admxnistration of the Police Department at the earliest
possible time, to draw guidelines in the use of weapons affecting
the protection of the, citizens of this City.
On January 20, 1972, Chief Bill Price issued Order G-72-6
concerning the tase of firearms.
A copy of these statements exists in the Mayor's office.
QUESTION:
26. If the answer to interrogatory #24 is in the affirma
tive, please indicate whether your position in support of the use
of lethal force was cccmunicated to the local news media.
ANSWER:
Yes.
-9 -
49
Q
QUESTION:
27. If your answer to interrogatory #26 is in the affirma
tive, please indicate as follows:
a. When your position was communicated to the media;
b. How your position was communicated to the media
(E.G., press release, press conference, public speech,
etc.).
ANSWER:
Communicated January 19, 1972, by a press release.
The undersigned, being first duly sworn, makes oath that
the facts stated in the foregoing answers to plaintiff's interroga
tories are true to the best of his knowledge, information and
belief.
STATE OF TENNESSEE
COUOTY OF SHELBY \ '
^Swom to and subscribed before me this day
of . 1975. . X ,
>rrŷ xTka ^NOTARY PUBLIC ' 0 / ,.\ /My Commission Expires: '• , . '
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing answers to
plaintiff's interrogatories has been served upon counsel for the
plaintiff. Drew S. Days, III, 10 Columbus Circle, New Yor’x,
New York 10019, and Waiter 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
_____ , 1975.
-10- 50
saee
I I h i
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.
CIVIL ACTION
No. C-75-145
ANSWER OF DEFENDANT, E. R. HYMON
TO PLAINTIFF'S INTERROGATORIES
COMES NOW the Defendant, E. R. Hymon, pursuant to Rule 33,
Federal Rules of Civil Procedure, and hereby answers those
interrogatories propounded to him by the Plaintiff.
QUESTION:
1. What is your full name, badge or identification number,
and present address?
ANSWER:
Elton Richard Hymon, Badge No. 1228, 901 Woodland, Memphis,
Tennessee 38106.
QUESTION:
2. What was your occupation or the nature of your employ
ment on or about October 3. 1974?
ANSWER:
Policeman. 51
mmmm
QUESTION:
3. With respect to your occupation or the nature of your
employment on or about October 3, 1974, state:
a. The nature of your work and duties;
b. Any special area of assignment.
ANSWER:
3- To enforce the Ordinances of the City of Memphis
and the Criminal Laws of the State of Tennessee;
b. Ward 128.
QUESTION:
4. Is your present occupation or the nature of your present
employment the same as it was on or about October 3, 1974?
ANSWER:
i'es.
QUESTION:
5. If the answer to interrogatory No. 4 is in the negative.
state:
ANSWER:
a. The name and address of your present employer;
b. The nature of your present work and duties?
c. The date upon which you joined the City of Memphis
Police Department;
d. The date upon which you left the City of Memphis
Police Department;
e. The reason for termination of your employment with
the City of Memphis Police Department.
Not applicable.
QUESTION:
6. What is your educational background?
ANSWER:
Crammer School and High School at Geeter High School,
- 2 - 52
Memphis, Tennessee; College at Tennessee State University at
Nashville, Tennessee, Bachelor of Science Degree with a Major in
English.
QUESTION:
7. Have you had any military training?
ANSWER:
R.O.T.C. training in College, two years.
QUESTION:
8. If the answer to the previous interrogatory is in the
affirmative, state:
a. The branch of the Armed Forces in which you served;
b. The duration of your service;
c. The area of your specialization while serving in the
Armed Forces;
d. Whether you were instructed in the use of firearms
while serving in the Armed Forces.
ANSWER:
Not Applicable as he did not actually serve in the Armed
Forces.
QUESTION:
9. Were you appointed, selected, or did you compete for the
position you held on or about October 3, 1974?
ANSWER:
I competed in the sense that I had to take written tests,
agility tests and under go a period of training to qualify as a
police officer.
QUESTION:
10. What, if any, educational requirements are prerequisite
to placement as a police officer for the City of Memphis, Tennessee?
ANSWER:
Two years of college or be a veteran.
- 3 -
53
QUESTION:
11. At the time of your placemert as a police officer of
the City of Memphis, did you satisfy the educational requirements
prerequisite to such appointment?
ANSWER:
Yes.
QUESTION:
12. Is training or experience as a police officer a
prerequisite to appointment as a police officer for the City of
Memphis?
ANSWER:
No.
■i1
1
QUESTION:
13. If the
1 affirmative , state
*i experience
ANSWER:
that is
Not Applicable.
QUESTION:
14. Were you ever employed elsewhere as a police officer
prior to your appointment as a police officer for the City of
Memphis?
ANSV7ER;
No.
QUESTION:
15. Did you receive any special training for the position
of police officer for the City of Memphis?
ANSI'TER:
Yes.
4 -
0 ‘i
QUESTION:
16. Were you ever a defendant in any suit which charged
you, individually or in your official capacity as a police officer
with abuse of your lawful authority?
ANSWER:
Yes.
QUESTION:
17. If the answer to the previous interrogatory is in the
affirmative, please give a complete detail of the facts and
disposition of said case, including but not limited, to:
a. The designation of the court involved;
b. The date on which such proceedings were initiated;
c. The nature of the charges against you;
d. The name of the complaint;
e. The outcome of the proceedings and the termination
date of such proceedings.
ANSWER:
In the latter part of 1971 or the first part of 1972, while
working as a treatment service counselor for the State of Tennessee
at the Fort Pillow State Farm, Fort Pillow, Tennessee, I was sued
by one of the residents, charging me, among others such as the
Warden and Commissioner of Corrections, with punishing an individual,
whose name I do not recall, twice for the same offense. I turned
the pleadings over to the State Attorney and have not heard
anything since about this proceeding. I was later told that the
case was dismissed.
QUESTION:
18. Has any State or Federal Court ever issued a decree
enjoining you from engaging in any conduct whatsoever within the
last ten years?
ANSWER:
No.
00
QUESTION:
19. If the answer to the previous interrogatory is in the
affirmative, state:
a. The designation, venue, and judge of the Court
that issued each such decree;
b. The date that each such decree was entered;
c. The nature of any conduct within that period in
which you were or are enjoined from engaging.
ANSWER:
Not Applicable.
QUESTION:
20. Have you ever been subjected to any internal adminis
trative procedure designed to prevent, determine, or correct
instances of abuse of the authority of police officers?
ANSWER:
No.
QUESTION:
21. If the answer to interrogatory No. 20 is in the
affirmative, please indicate the following information for each
proceedings:
a. The nature of the police department disciplinary
proceeding;
b. The date such proceedings were initiated;
c. The name of the complainant; and
d. The outcome of the police department disciplinary
proceedings and the date on which they were
concluded.
ANSWER:
Not Applicable.
QUESTION:
22. What were your scheduled hours of work as a police
officer on or about October 3, 1974?
6 - 56
ANSWER:
4:00 P.M. to 12:00 Midnight.
QUESTION:
23. Did you work the hours you were scheduled to work on
or about October 3, 1974?
ANSWER:
Worked scheduled hours and overtime extending to 4:00 A.M.
the following morning.
QUESTION:
24. If your answer to interrogatory No. 23 is in the
affirmative, state:
a. T.he nature of your duties during that period,
including but not limited to your geographic
assignment and the hours of any shifts you worked
during that period;
b. What official records of the City of Memphis
Police Department would contain information with
respect to your assignments on or about October 3,
1974.
ANSWER:
QUESTION:
25.
a. The nature of my duties were as described herein
above, to-wit: to enforce the Ordinances of the
City of Memphis, and to carry out those duties,
some of the time is spent in patrolling the City
in a police vehicle. My geographic boundaries
were Evergreen on the east, Bellevue on the west,
Jackson on the south, and Wolf River on the north.
The hours of my shift during that period were as
stated hereinabove.
b. The log sheet.
Was your employer insured on or about October 3, 1974,
against judgements of personal liability arising from your discharge
- 7 - o /
o f y o u r o f f i c i a l r e s p o n s i b i l i t i e s as a Mem phis p o l i c e o f f i c e r ?
ANSWER;
I do not know.
QUESTION:
26. Were you insured on or about October 3, 1974, against
judgments of personal liability arising from your discharge of
your official responsibilities as a Memphis police officer?
ANSWER:
I do not know.
QUESTION:
27. If the answer to either of the immediate previous
two interrogatories is in the affirmative, state, for each such
policy of personal liability insurance:
a. The name and address of the insurer;
b. The name and address of the person or persons who
pay the premiums;
c. The identification number of the policy;
d. The effective dates of the policy;
e. The amount of the policy;
f. The siiistance of any disclaimers of liability in
the policy.
ANSWER:
Not Applicable.
QUESTION:
28. On or about October 3, 1974, did you have any contact
with Edward Eugene Garner, deceased son of the plaintiff in this
action?
ANSWER:
Yes.
8 - 00
J
QUESTION:
29. If the answer to interrogatory No. 28 is in the
affirmative, would you indicate the nature of the contact with
Edward Eugene Garner, including but not limited to the following
information:
a. Exact date;
b . Time;
c. Location;
d. How contact was initiated; and
e. Names and addresses of any non-police witnesses to
this contact.
ANSTOR:
a. October 3, 1974;
b. Approximately 11:03 P.M.;
c. Rear of 739 Vollintine, Memphis, Tennessee;
d. Pursuant to a call with regard to a prowler in a
residence on Vollintine, my partner and I proceeded
to the 3 o c a t x O n wher« VC w c i c lu’c
of 737 Vollintine, who advised us that there was
a prowler in the house next door. At this point
I went to the police vehicle, got my flashlight,
and advised my partner what the resident at
737 Vollintine had told me. I went to one side of
the house and my partner went to the other side.
When I got to the corner on the west side of the
house, I saw the subject coming out of the rear
of the house and running toward a chain link fence
in the rear. I located him with the flashlight,
ordered him to halt, but after telling my partner
where the subject was located, the said subject
started over the fence and I fired one shot from
my service revolver.
Daisy Mae Bell Statts, 737 Vollintine, Memphis,
Tennessee.
- 9 -
59
QUESTION:
30. If the answer to interrogatory No. 28 is in the
affirmative, please state:
a. Whether you made any written reports of this
contact, formal or informal;
b. If so, the nature of such reports, specifying the
number of any official form used;
c. Whether the reports are still in existence; and
d. What person or agency presently has custody and
control of such reports.
ANSWER:
a. Yes;
b. Description of events. I do not know of any official
form used in making this report;
c. Yes;
d. Homicide Division, Memp,iis Police Department.
QUESTION:
31. If the answer to interrogatory No. 28 is in the affirmative,
please indicate whether any other officers were present at the time
of your contact with Edward Eugene Garner.
ANSWER:
Yes.
QUESTION:
32. If the answer to interrogatory No. 31 is in the affirm
ative, please indicate the following information:
a. The full names of any officers present during
your contact with Edward Eugene Garner;
b. The present assignments of the officers listed in
answer to 30(a).
ANSWER:
a. Leslie Burton Wright;
b. Ward 128.
60
- 10 -
QUESTION;
33. If the answer to interrogatory No. 28 is in the affirm
ative, please indicate whether any police department disciplinary
proceedings were initiated against you as a consequence of alleged
misconduct on your part arising out of your contact with Edward
Eugene Garner.
ANSWER:
No. However, as is routine in such incidents as this, I was
suspended with pay pending an investigation of the matter.
QUESTION:
34. If the answer to interrogatory No. 3 is in the affirm
ative, please indicate:
a. The nature on which such proceedings were initiated;
b. The date on which such proceedings were initiated;
c. The nature of the charges against you; and
d. The outcome of these proceedings and the dates on
which the proceedings were concluded.
ANSWER;
Not Applicable.
QUESTION:
35. If the answer to interrogatory No. 28 is in the affirm
ative, please state:
a. Describe in detail the area where you came into
contact with Edward Eugene Garner;
b. Describe in detail what if anything you observed
Garner doing when you came in to contact with him;
c. Describe in detail what, if anything you did upon
coming into contact with Garner;
ANSWER:
cl • See answer to Interrogatory No. 29 above;
b. See answer to Interrogatory No. 29 above;
c . See answer to Interrogatory No. 29 above.
- 11 G1
QUESTIO:̂ :
36. If the answer to interrogatory No. 28 is in the
affirmative, please state whether, at the time you came in to
contact with Edward Eugene Garner, you believed that he had
committed or was about to commit a crime.
ANSWER:
Yes.
QUESTION:
37. If the answer to interrogatory No. 36 is in the
affirmative, please indicate as follows:
a. The nature of the crime and its official
designation under Tennessee or Memphis law;
b. Your reasons for believing that Garner had
committed or was about to commit the crime in
question.
ANSWER:
a Breaking and entering;
b. I had been told that someone was breaking into
the house. I saw him running from the house. I saw a window
broken out and a garbage can placed underneath the window which
appeared to be the way he gained entrance to the house at the
rear southwest corner.
QUESTION:
38. Were you issued a service revolver for use in carrying
out your official responsibilities.
ANSWER:
Yes.
QUESTION:
39. If the answer to interrogatory No. 38 is in the affirm
ative, please indicate the make, m.odel and calibre of the service
revolver issued to you.
12 - G2
ANSWER:
Model 10, four inch Smith and Wesson, 38 calibre, six shot
revolver.
QUESTION:
40. What type of ammunition do you ordinarily use in your
service revolver?
ANSV7ER:
38 special ammunition.
QUESTION:
41. What type of ammunition were you using in your service
revolver on October 3, 1974.
ANSWER:
38 special ammunition.
QUESTION:
42. Is ammunition used in your service revolver issued
to you by the Memphis Police Department?
Al^SWER:
Yes.
QUESTION:
43. Did you attempt to apprehend Edward Eugene Garner?
ANSWER:
Yes,
QUESTION:
44. If the answer to interrogatory No. 43 is in the
affirmative, please indicate whether you fired your service
revolver in an attempt to apprehend Edward Eugne Garner.
ANSWER:
Yes.
G3
- 13
QUESTION:
45. If the answer to interrogatory No. 44 is in the affirm
ative, please indicate whether Edward Eugene Garner was wounded as
a consequence of your firing your service revolver.
ANSIVER:
Yes.
QUESTION:
46. If the answer to interrogatory No. 45 is in the affirm
ative, please indicate what areas of the body of Edward Eugene
Garner were wounded as a consequence of your firing your service
revolver.
ANSWER:
Right side of head, just above the ear.
QUESTION:
47. If your answer to interrogatory No. 45 is in the
affirmative, please indicate whether you attempted to obtain medical
treatment for Edward Eugene Garner after he was wounded.
ANSWER:
Yes.
QUESTION:
48. If the answer to interrogatory No. 47 is in the negative,
please explain your failure to attempt to obtain medical treatment.
ANSWER;
Not Applicable.
QUESTION:
49. If the answer to interrogatory No. 47 is in the affirm
ative, please indicate the following:
a. When you sought medical assistance;
b. IJow you went about seeking assistance;
c. From what source you sought assistance;
- 14 - 64
MSWER:
d. Whether you were successful in obtaining
assistance;
e. When assistance was obtained;
f. The nature of assistance provided;
g. By what person, persons, institutions, or
agencies was assistance provided.
a. Immediately;
b. By calling an ambulance;
c. Memphis Fire Department;
d. Yes;
e. In a matter of minutes;
f. Immediate medical attention;
g. Memphis Fire Department and Memphis City Hospitals.
QUESTION:
50. Prior to October 4, 1974, did you have any occasion to
fire your service revolver in making an arrest or attempting to make
an arrest for alleged violations of the law?
ANSWER:
Yes.
QUESTION:
51. If the answer to interrogatory No. 50 is in the
affirmative, please indicate the following with respect to each
such occasion:
a. Date;
b. Place;
c. Nature of the alleged violations of the law
that served as the basis for your arresting or
attempting to arrest a subject, including official
statute designations of the crimes;
d. Whether injury occurred as a result of the firing
of your service revolver;
e. To whom injury occurred;
B5
- 15 -
ANSWER:
f. The nature of the injury.
a. October 3, 1974;
b. 737 Vollintine, Memphis, Tennessee;
c. Breaking and entering;
d. Yes;
e. Edward Eugene Garner;
f. Bullet wound to the head.
QUESTION:
52. Did you receive any training in the use of firearms
prior to your assuming your duties as an officer of the Memphis
Police Department.
ANS14ER:
Yes.
QUESTION:
53. If the answer to interrogatory No. 52 is- in the affirm
ative, please indicate as follows:
a. When you received training;
b. Where you received training;
c. The nature of the training;
d. The person or persons conducting the training;
e. The duration of the training;
f. Whether officers were graded or rated on their
performance during the training period;
g. What grade or rating you received.
ANSWER:
a. Training started in July, 1973;
b. Memphis Police Academy.
c. Instruction in the use, capabilities and
proficiency of fireams;
- 16 - G6
''km.
. y
d. Captain Coletta, Sgt. Hart, Officer McElhaney,
Officer Goldsby, Officer Thurman and an F.3.I.
Instructor whose name I do not know. There may
be others but these are all that I recall at this
time.
e. Approximately a week and a half.
f. Yes;
g. I received a passing rating, however, I do not
recall the exact rating I received at the time.
There should be records on file with the Police
Department in the custody of Captain Coletta
indicating my exact rating.
QUESTION:
54. Have you received any training in the use of firearms
since you assumed your duties as an officer of the Memphis Police
Department.
ANSWER:
Yes.
QUESTION:
55. If the answer to interrogatory No. 54 is in the
affirmative, please indicate as follows:
a. When you received training;
b. Where you received training;
c. The nature of the training;
d. The person or persons conducting the training;
e. . The duration of the training;
f. Whether officers were graded or rated on their
performance during the training period;
g. What grade or rating you received.
ANSWER:
I am not sure of the specifics with regard to the additional
training. My recollection is that I have been to the firing range
since I assumed my duties as a Police Officer but I do not recall
the specifics. There are records on file with the Police Department
indicating ray subsequent training.
QUESTION:
56. Have you ever received instruction with respect to
circurastances under which lethal force should be resorted to by
you in carrying out your official duties?
ANSI-/ER:
Yes.
QUESTION:
57. If the answer to interrogatory No. 56 is in the
affirmative, please indicate the following:
a. The nature of any instruction you received
with regard to the use of lethal force;
b. When you received such instruction:
c. From whom you received such instruction:
d. The form in which such instruction was communicated
to you.
ANSWER:
a. We had instruction in the law in this area and
what circumstances we were justified in using
our firearms;
b. Sometime in August, 1973;
c. Ronald Krelstein, legal advisor to the Memphis
Police Department;
d. Classroom instruction.
QUESTION:
58. Prior to October 3, 1974, did you have any contact
with or knowledge of Edward Eugene Garner?
No.
ANSWER:
f3o
- 18
..y
QUESTION:
59. If the answer to interrogatory No. 58 is in the affirm
ative, please indicate the nature of your prior contact with or
knowledge of Edward Eugene Garner.
ANSWER:
Not Applicable.
The undersigned, being first duly sworn, makes oath that the
facts stated in the fore'going answers to Plaintiff's interrogatories
are true to the best of his knowledge, information and belief.
E. R. ilYMON
STATE OF TENNESSEE
COUNTY OF SHELBY
SWORN TO AND SUBSCRIBED before me this day of
, 1975.
I My Commission Expires:
...__/0//3/7C.
Notary oPoolic
CERTIFICATE OF SERVICE
I, Henry L. Klein, Attorney, hereby certify that a copy of
the foregoing Answer of Defendant, E. R. Hymon To Plaintiff's
Interrogatories has been mailed this day of November,
1975, to Walter L. Bailey, Jr., Esquire, 901 Tenoke Building,
Memphis, Tennessee 38103, and Drew S. Days, III, Esquire,
10 Columbus Circle, New York, New York 10019.
Henry L. Klein
- 19 -
Gii
; L n j i s
IN THE UNITED STATES DISTRICT COURT
FOR THE VJESTERiN 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; '.'RfETH CHANDLER,
Mayor of Memphis; JAY W. HUBBARD,
Director of Police of Memphis; and
E. R. HYMON, Police Officer of the
City of Memphis,
Defendants.
CIVIL ACTION
No. C-75-145
ANSWER TO PLAINTIFF'S FIRST INTEPJIOGATORIES
Comes nov7 the defendant. Jay W. Hubbard, and in
accordance with Rule" 33, F.R.C.P. and hereby answers those
interrogatories propounded to him by the plaintiff.
QUESTION:
1. What is your full name, address, and badge
number?
AÎ SVTER:
Jay Warren Hubbard.
QUESTION:
2. Are you presently a member of the City of Memphis
Police Department?
ANSVreR :
No.
QUESTION:
3. If the ansv7or to the previous interrogntory is in
the affirmative, plca::c indicate the follov7ing information:
’0
a. Date upon which you joined the City of Memphis Police
Department;
b. Your present rank;
c. The nature and duties of your present assignment.
AMSk’ER:
N/A.
QUESTION;
4. If the answer to interrogatory #2 is in the
negative, please indicate the following information:
a. Date upon which you left the City of Memphis Police
Department;
b. The reason for termination of your employment vn.th the City
of Memphis Police Department; and
c Where you are presently employed, and in what capacity.
ANSWER:
a. May 31, 1975.
b . «̂ HkrfgwTFr A .
c. Guardsmark, INc., as Vice President with marketing respon
sibilities in Southern California region.
' f ' i
QUESTION:
. 5. Would you indicate the nature of your official
duties as of October 3, 1974, including but not limited to the
following information:
a. Responsibility for articulating the policies and practices
of the Police Department;
b. Responsibility for the proper effectuation of those policies,
practices, and regulation; and
c. Responsibility for the recruitment and hiring of members of
the City of Memphis Police Denartmcnt.
ANS’.JER:
As Director of Police from 1 December 1972 through 31
May 1975, I was charged X'jith tlui-managing all functions of the
-2-
/ I
Tolice Department. This principally involved internal budget,
organization, administration, discipline, training, promotions
and assignments, coordination as required with outside agencies
and the responsibility to respond with appropriate action on
complaints involving official performance of duty by the Depart
ment or its members.
t
QUESTION:
6. What were the procedures used in the recruitment
and selection of members of the City of Memphis Police Department
as of October 3, 1974?
AUSTJER:
The recruting process was supervised by the City
Personnel Services Division -- the agency responsible for imple-
'̂■-̂ hing the City Civil Service Ordinance. The Police Department
participated in a consultant and collaborative capacity in both
snd final screening of applicants for assignment to the
Academy wnich is operated by the Police Department,
QUESTION:
7. Was. E. R. Hymon, a defendant in this action,
selected in accordance with the procedures outlined in interrogatory
fS.
ANSWER:
Yes.
QUESTION:
8. If the answer to interrogatory #7 is in the
negative, how was E. R. Hymon selected?
ANSWER:
N/A.
QUESTION:
9. Did E. R. Hymon satisfy all of the prequisite quali-
-3-
’ 2
o
fications suitable for employment as a police officer of the
City of Memphis?
ANSiv’ER:
Yes.
QUESTION;
10.. Did the Memphis Police Department authorize and
provide training in the use of weapons generally and in the proper
use of non-lethal and lethal force in making apprehensions?
ANSWER;
Yes.
QUESTION;
11. If the answer to the previous interrogatory is
ill the affirmative, please indicate the following information:
a. Nature of the training;
b. Scope and duration of the training;
c. Names of the person or persons who were in charge of the
training;
d. Addresses of the persons named in 11(c).
ANS^IER;
a. Basic Recruit Training, 36th Session.
b. Law - 50 hours.
Firearms (includes lectures and range practices) - 80 hours
Physical training (includes night stick and unarmed self defense) - 55 hours.
c.
d.
Insp. E. L. Barksdale
Capt. J. A. Coletta (Firearms) Lt. J. A. Bullard (Physical)
Ronald D. Krelstein (Law)
Insp. E. L. Barksdale
454 Vescova Drive
Memphis, Tennessee
Capt. J. A. Coletta 292 Barry Road
Memphis, Tennessee
Lt. J. A. Bullard
3624 Cowden
Memphis, Tennessee
-4-
Ronald D. Krelstcin Attorney at Law Suite 3121
100 North Main Building
Memphis, Tennessee
QUESTION;
12. As Director of Police of Memphis, did you promulgate
. regulations relating to the use of lethal force by Memphis police
officers?
ANSWER;
Yes.
QUESTION;
13. Did you authorize the use of weaponry and ammuni
tion by police officers of the City of Memphis?
ANSWER;
Yes.
QUESTION;
14. If your answers to the previous two interrogatories
are in the .affirmative, please state:
a. Whether you made any written records of these regulations
and authorizations;
b. If so, the nature of such records, specifying the name and
number of any official form used;
c. VJhether your written records of these regulations and
authorizations are still in existence; .and
d. What person or agency presently has custody and control
of such records.
ANSTOR:
a. Yes.
b. General Order 5-74.
c. Yes.
d. Memphis Police Department.
-5 -
t 4
QUESTION:
15. During your tenure as Director of Police of
Memphis what make, model and calibre of service revolver did
police officers use in the carrying out of their official
responsibilities as of October 3, 1975.
ANSWER;
Smith & Wesson, Model 10, .38 caliber.
QUESTION:
16. What type of ammunition did your Department issue
to police officers for use in their service revolvers in the
carrying out of their official responsibilities as of October 3,
1974.
ANSIJER:
Remington .38 Special, 125 gr., semi-jacketed hollow
point.
QUESTION:
17. Were you familiar with the capabilities and
qualities of the type of service revolver and ammunition issued
to Memphis police officers as of October 3, 1975, in terms of
the type of injury they inflict upon the human body.
ANS;iER:
Yes.
QUESTION:
18. If your answer to the previous interrogatory is in
the affirmative, please indicate as follows:
a. The nature of your familiarity;
b. How you obtained such familiarity;.
ANSV7ER;
a. While I am certainly no expert, I am familiar with reasoning
behind the selection of the .38 caliber revolver as the service
-6-
75
■SUM
handgun by the majority of police departments in this country.
That weapon is a compromise, because there is no optimum combina
tion of weapon and ammunition suited to the full range of police
purposes. Each situation invol\d.ng the use of deadly force is
subject to multiple — and sometimes contradictory — considerations.
Visibility, range, size and movement of the target present one set
of factors. Another array addresses the question of hazard that
even the most justifiable use of deadly force might present to
innocent bystandards and property. From the specialized stand
point of stopping power and safety of their officers, many depart
ments would opt for the .357 magnum pistol. At the other end of
the spectru. a .25 caliber weapon is attractive for minimizing
lethal radius. Looking at the practical matter of what is avail
able and reliable, most U. S. police departments continue to agree
that the .38 caliber revolver is still the best choice. The U.S.
Armed Forces have long favored the .45 caliber automatic pistol
because of its exceptional stopping power at close range. But.
military aviation units prefer a version of the .38 revolver as
offering the most protection for least weight.
b. Through personal exposure to handguns for over 32 years in the
iiarine Corps and later, in the Memphis Police Department.
QUESTION:
19. If your answer to interrogatory #17 is in the
affirmative, please indicate the following:
a. Whether any studies were commissioned or consulted by you or
the Memphis Police Department with respect to the effect upon the
human body of the use of the service revolvers and ammunition issued
by your department.
ANSWER:
Captain John Coletta, Weapons Training Unit Commander in
the Memphis Police Department during my tenure, is in my opinion,
a genuine authority on handgun and ammo combinations, and I
-7 -
7G
frequcncly drew on his expertise. Moreover, professional writings
in this subject area were circulated by and among Captain Coletta,
the Chief of Police, other senior commanders and me in a continuous
to be informed on new equipment and techniques. Although
not presented as a formal study. Captain Coletta's analysis was
pivotal in dealing with questions which arose following the loss
’ of Sergeant David Clark, who was fatally wounded in an exchange
of gunfire with a man who killed four people in a homicidal
episode. There was good reason to believe, in that special case,
that Sergeant Clark might have prevented the loss of several lives,
including his o t o, had he been armed vriLth a more powerful weapon.
The Memphis Police Association understandably expressed interest in
switching to a heavier caliber handgun. Aside from the cost —
which would have been prohibited in that year's budget -- Captain
Coletta was able to demonstrate that improved .38 caliber ammunition
-- expected to be available soon — should offer the higher per
formance that some situations demand.
QUESTION:
20. If the answer to interrogatory #19 is in the affirm
ative, please indicate as follows:
a. Nature of the studies;
The date on which such studies were made;
c. The names and addresses of the persons who conducted the
studies;
d. The conclusions reached by the persons conducting the study;
e. Whether the reports on such studies are still in existence;
and
f. VThat person or agency presently has custody and control of
such reports.
ANSWER:
Having road a great deal of material on the subject over
a 2-1/2 year period, I cannot recall with precision exactly whicli
-8-
T
outside professional sources exerted primary influence on
Captain Coletta, or the rest of us, who were responsible for
deciding to remain v;ith the present (.38 caliber) handgun.
QUESTION;
21. Was any officer of the Memphis Police Department
involved in an incident where the use of a service revolver and
ammunition issued by the Department resulted in death or injury
prior to October 3, 1974.
Yes.
QUESTION:
22. If your answer to the previous interrogatory is in
the affirmative, please indicate the following:
a. Nature of the incident;
b. Time of the incident;
c. Location;
d. Whether any reports, formal or informal, were filed on the
matter.
ANSVffiR:
a. Deceased pulled a pistol on officer writing citation,
b". September 15, 1974, 5:40 a.m.
c. Second and Marble.
d. Yes.
QUESTION:
23. If your answer to interrogatory #22(d) is in the
affirmative, please indicate:
a. The name and number of the official form used',
b. What person or agency presently has custody and contx'ol of
such reports.
ANSWER:
a. Firearms Report Memphis Police Department, #F-2100.149.
-9- 7S
QUESTION:
25. What are the prerequisites for the position of
Director of Police of Memphis?
ANSWER:
While not the best source of that information, I assume
that some combination of management experience, good health and
a record of professional integrity constitute the basic criteria.
This leans on the notion that sufficient specialized law enforcement
skills should be available to a civilian administrator from within
the organization. I am not saying that 1 fully agree with that
concept, but that's the way I perceive the system in which I served.
QUESTION:
ANSOTR:
26. Did you satisfy the prerequisites for this position?
If my basic assumptions are Correct, then I probably
satisfied the criteria to some degree.
QUESTION:
27. Were you ever emoloyed elsewhere as a police officer
or Director of Police prior to your appointment or election as
Director of Police of Memphis?
ANSWER:
No.
-10- 73
QUESTION:
29. Did you conduct or order conducted an investigation
into the death of Edward Eugene Garner on October 3, 1974?
ANSWER:
Full investigations, including participation by the
Attorney General's staff, are automatically initiated when deadly
force is employed by a member of the Department. Therefore, it is
not necessary to issue a specific order launching such an inquiry.
QUESTION:
30. If the answer to interrogatory #29 is in the affirm
ative, please indicate the following:
a. - iThen you initiated your investigation;
b. The names, ranks and badge numbers of subordinate officers,
if any, delegated by you responsibility for conducting the investi
gation;
c. How long the investigation lasted;
d. What persons were interviewed as part of the investigation;
e. Whether written statements were obtained from persons listed
in answer to #30(d);
f. What was the outcome of the investigation;
g. Whether the resulsts of the Investigation and its conclusions
were reduced to writing.
-li
st)
0
ANSWER:
N/A.
QUESTION:
If the answer to interrogatory #29 is in the negative,
please explain why no investigation was conducted by you or at
^your direction into the death of Edward Eugene Garner.
The undersigned, being first duly sworn, makes oath
that the facts stated in the foregoing answers to plaintiff's
interrogatories are true to the best of his knowledge, information
and belief.
of Sworn to and subscribed before me this
. 1975. _day
My Commission Expires:
CERTIFICATE OF SERVICE
m i s is to certify that a copy of the foregoing answer to plain-
1^7 f .^^ts^^ogatories has been served upon counsel for the
York"*^tnm’ 10 Columbus Circle, New York. New York 10019. and Walter Lee Bailey. Jr,, 901 Tenoke Building,
Memphis, Tennessee, 38103, by mailing same to them at their^ offices kyj United States mail, postage preoaid, this day of I ̂ 1975. ‘ -----------
/
-12-
8i
J ///nr/i-S
IN THE UNITED STATES DISTRICT COURT
FOR THE VrSSTERN DISTRICT OF TEIFNESSEE
VfESTERi'I DIVISION
CLEAI'ITEE GARNER, father and )
ne;:t cf kin of EDWARD EUGENE )
GARNER, a deceased rr.ir.or, )
)
Plaintiff, )
MEMPHIS POLICE DEPARTMENT,
et al,
NO. C-75-145
ORDER OF REFERENCE TO MAGISTRATE
Pursuant to Local Rules, the discovery dispute
relative to defendant's objection to production of
documents in this matter is hereby referred to the United
States Magistrate, Aaron Brown, Jr., for a hearing, if
necessary, and a report and recommendation as to disposition.
This 18th day of November, 1975.
82
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
::l e a m t e e g a r n e r .
Plaintiff,
This lawsuit grew out of a Memphis officer shooting
a fifteen-year-old black youth with a .38 caliber revolver
using a "Dum-Dum" bullet. The suit is against the Memphis
Police Department, the City of Memphis, the Mayor of Memphis,
the Director of Police of Memphis, and the police officer who
fired the shot that killed Edward Eugene Garner. The com.-
plaint asserts numerous grounds of relief, including
irresponsibility on the part of the city defendants in select
ing and training the defendant, Hymon; unreasonable police
policies concerning use of lethal force to apprehend fleeing
suspects; and unreasonable choice of weapons and ammunition
for use by the Memphis Police Department in apprehending
suspects. The complaint has survived a motion to dismiss
as to all defendants.
In addition to interrogatories, the plaintiff filed
seventeen requests for production of documents, to all of
which the defendants have objected. The plaintiff has now
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filed a motion to compel production of those documents, to
gether with an appropriate certificate of consultation.
The defendants assert that the documents requested
in requests numbered 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14,
16, and 17 are "privileged." I have had occasion to deal
with the issue of alleged privilege with regard to police
matters in three prior cases, Wiley v. Memphis Police
Department. C-73-8; Ghoston v . Stams, C-73-243; and McGowan
V. City of Memphis, et al., C-72-326. I am attaching to
this report copies of those portions of the reports in those
cases dealing with the issue of privilege of police matters.
In addition, I would call the court's attention to the case
of Boyd y. Gullett, et al.. 64 F.R.D. 169 (D.Md.), holding
that there is no general privilege against discovery of
police files.il/ I therefore conclude that the defendants'
claim of privilege in the instant case should be rejected.
The defendants also claim that the information re
quested in the following requests for production of documents
is irrelevant to this case: 2, 3, 4, 5, 8, 9, 10, 11, 12,
13, 14, 15, 15, and 17. In view of the broad allegations of
the complaint which has, as I mentioned, survived a motion
to dismiss, I believe that all of these challenged requests
are relevant to this litigation or might lead to the dis
covery of relevant evidence.
The defendants assrrt that request number 5 is too
broad and vague. The request asks for "all documents relating
i/The Boyd case deals with and distinguishes Brown
V. Thompson, 430 F.2d 1214 (5th Cir. 1970), cited by the de
fendants in this case. The plaintiff also cites Tighe v .
City and Co. of Honolulu, 520 P, (2d) 1345, holding that there
is no common law privilege for police records.
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to wyeth Chandler's or J. Hubbard's expressions with respect
the use of lethal force in the apprehension of criminal
suspects or the prevention of crime." i agree that the re
quest is both vague and too broad, and therefore recommend
that the court deny the plaintiff's motion as regard to
request nuinber 5.
In addition to privilege, the defendants assert
that request number 6 is also too broad. That request asks
for all documents relating to the selection of the type of
service revolver and ammunition issued by the Memphis Police
Department for its officers as of October 3, 1974. I do not
believe that this request is unreasonably broad.
Request number 7, which asks for all documents re
lating to the promulgation of regulations on the use of
lethal force by the City of Memphis Police Department, is
objected to only as being too broad. I likewise feel that
this request is reasonable and should be complied with.
Request number 8 asks for all documents "relating
to any studies conducted by or at the request of the City of
Memphis Police Department on the effects of various ammuni
tion used by its officers as of October 3, 1974 on the human
body." In addition to relevancy, this request is objected
to as being too broad. I think it reasonable and recommend
that the court grant plaintiff'S’motion in regard to this
request.
Request number 12 asks for all documents "setting
out the official policies regarding promotion of police
officers of the Memphis Police Department." It is also
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objected to as being too broad. I recoimend that the court
grant the plaintiff's motion concerning this request.
Request 13 asks for all documents "relating to the
training of Memphis Police officers, generally and to the
training of the officers in the use of lethal and non-lethal
weapons, specifically." I agree with the defendants that
this request is unreasonably broad and recommend that the
court deny plaintiff's motion with regard to it.
Request number 14 asks for all documents relating
to instances in which lethal force was resorted to by offi
cers of the Memphis Police Department from January, 1973 to
October 3, 1974 and asks for official investigation reports,
citizen complaints, and disciplinary proceedings instituted
against officers resorting to lethal force. In addition to
privilege and irrelevancy, this request is likewise attacked
as being too broad. In the context of this case the docu
ments requested are highly relevant, i do not believe the
request is too broad and therefore recommend that the court
grant the plaintiff's motion with regard to it. The defendants
did not challenge this request as being burdensome, and in
any event, may respond under Rule 33(c) of the Federal Rules
of Civil Procedures.
Request 16 asks for "all rules and regulations
governing the conduct of police officers of the Memphis Police
Department as of October 3, 1974." It is challenged as "too
broad." I recommend that the court grant the plaintiff's
motion with regard to this request.
In summary, I recommend that the court grant the
plaintiff's motion and require the defendants to produce the
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documents requested in all of the plaintiff’s requests for
production of documents, except requests 5 and 13, as to
which I recommend that plaintiff's motion be denied.
In these cases against the Police Department and
police officials, the court has in the past made extensive
use of protective orders. I feel that a protective order
would be appropriate in this case and recommend that the
court require counsel to undertake to agree on an appropri
ate protective order and submit an agreed draft to the court.
If an order cannot be agreed upon, counsel for the respective
parties should be required to submit proposed drafts.
The plaintiff has also moved for an order requiring
the defendants to answer certain interrogatories. Interroga
tory 3(b) to defendant Chandler asks for his particular
responsibilities and authority with respect to the City of
Memphis Police Department. He responded that he had the re
sponsibility to "appoint the director, the interim director
and general authority over the City of Memphis Police Depart
ment." The plaintiff claims that he should be required to
clarify what he means by "general authority." I recommend
that the defendant Chandler be required to more specifically
answer this interrogatory as to his "general authority" over
the City of Memphis Police Department.
Interrogatory 15 to the defendant Hymon asks whether
he has been involved in other suits charging abuse of his
authority as a policeman. Interrogatory 17 asks for specifics
in the event the answer to interrogatory 15 is in the affirm
ative. It was, but the answer to 17 was not detailed. The
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defendant Hyraon should be required to give a more specific
answer, and supply such information concerning this matter
as is not only in his possession but in the possession of
his attorneys as well.
Interrogatories 25 and 26 to Mr. Hymon inquire
about insurance. Mr. Hymon responded that he did not know
whether he was insured. I recommend that the defendant
Hymon be required to more specifically answer these inter
rogatories. His amended answer should give not only
information in his possession but that in the possession of
his attorneys as well.
In interrogatories 17 and 18 to the defendant
Hubbard he is asked about his familiarity with certain re
volvers and ammunition issued to Memphis Police officers
as of October 3, 1975. He gave an answer concerning the
gun, but not the ammunition. I recommend that defendant
Hubbard be required to more fully answer interrogatory 18.
Submitted this, the 4th day of March, 1976.
Aar6n Brown, Jr.,
United States Magistrate
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CLINTON GHOSTON,
Plaintiff
vs.
ALVIN M. STAMS,
Defendant
C-73-243
REPORT OH REFERENCE CONCERNING DISCOVERY
On September 19, 1973 the plaintiff in this civil
rights action stibiaitted fifteen interrogatories under Rule 33
of the Federal Rules of Civil Procedure for the defendant to
cuiswer. Plaintiff's attorney orally gave defendant's attorney
an extension of time to answer the interrogatories, but no
specific conversation was had about filing objections. On
November 16, 1973 the defendant filed answers to all the
interrogatories except 14e and 14f. The entire question 14
is as follows:
14. State whether there has been any investigation by any
individual, agency, or internal unit of the Police Depart
ment, the City of Memphis, or other governmental entity.
a. State the name of the organization, department, or
entity which has conducted this investigation.
b. State the name of the individual v/ho interviewed
you concerning the alleged incident. Give his name,
his rank, his badge number or any other identification,
including his address and telephone number.
c. State whether a report has been issued as a result
of investigation of this incident.
d. State in whose possession this report is at this time.
e. Attach a copy of any such report.
f. State the nature of the findings of these reports,
point by point.
83
be directed to a party rather than his representative, the
party must disclose all facts in his attorney's possession.
See Wright and Miller, Federal Practice and Procedure, volume
8, section 2177 and cases cited.
There is not much authority on the question of a privilege
attaching to internal police investigations. In United States
v. Mackey, 36 F.R.D. 431 (1955) the district court for the
District of Columbia did recognize such a privilege for the
District of Columbia Metropolitan Police Department. But
that department is an agency of the executive branch of the
United States Government. The district judge did however
make the blanket statement that records of law enforcement
agencies are regarded as confidential and not subject to
public inspection in the interest of law enforcement and
for the protection of the piiblic and individuals who might
be under investigation or might submit information. He does
not cite authority for this proposition. In Knott v. Perini.
283 F.Supp. 1, District Judge Don J. Young of the Northern
District of Ohio denied discovery of internal records of
the Canton, Ohio Police Department on the authority of the
Mackey case. Judge Young acknowledged that one of the bases
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hoXding in MacTcev was 'tha sspaxation of powajrs in tlie
federal government, but he did not read the dase as upholding
the police internal records privilege solely on that ground.
He noted thet the court xn MacTcey gave other reasons for the
privilege, presumably the public policy considerations noted
above. Judge Young did not note any distinction between his
case and Mackey on the basis that his was civil and Mackey
was criminal.
In Alexander v. Rizzo, 50 F.R.D. 374, Chief Judge John
W. Lord, Jr. granted discovery of material relating to internal
matters and procedures of the Philadelphia Police Department
in a civil rights case. Judge Lord pointed out that the case
was civil in nature and was thus governed by the Federal Rules
of Civil Procedure. He allowed discovery without prejudice
bo the rxght of defendants to apply for a proper protective
order.
The defendant also relies on a recent case in this court,'
Wj-ley V. Memphis Police Department, number C-73-8, where Judge
Wellford allowed the plaintiff to discover only the nature and
extent of a police internal security investigation. In a
clari:fying order Judge Wellford said this:
For purpose of clarifying the Order filed on August
16, 1973, with respect to Interrogatories No. 12 and 13 and [sic] ’ discovery, the sifaject matter to be discovered is limited specifically to the nature and extent of an internal security investigation, if there has been any. This Court does not include in its Order divulging of the content of the actual statements
of witnesses nor the reports, recommendations nor conclusions of the investigating officers, if any.[emphasis in original]
The Wiley case is not in point with the present one because in
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Wiley the plaintiff only asked for the nature and extent of
the investigation and did not ask for a copy of the report.̂
There are, to be sure, persuasive public policy arguments
for not divulging police Internal Affairs reports, but there
are equally forceful piablic policy arguments for divulging
these reports when they would assist in the full and fair
disposition of civil rights litigation. I see no reason why
these two conflicting views cannot be adequately accommodated '
i
by the use of protective orders.
Two other matters should be mentioned. First, the
plaintiff has sought a copy of the Internal Affairs report
by an interrogatory under Rule 33 rather than by a request
for production under Rule 34. But the fact that the plaintiff
has called his request an interrogatory under Rule 33 rather
than a request for production under Rule 34 should not be fatal
to him. See Federal Practice and Procedure, section 2166, page
495. Second, there has been no serious contention in this case;
that the report was prepared in anticipation of litigation or
that it is in any way the work product of the attorney, in fact
there has been no tender of proof at all as to why the report
was made. Statements of counsel at the hearing indicate that
these reports are routinely made by the police Internal Affairs
Bureau for internal disiplinary purposes.
1. I notice in the Wiley file that the plaintiff has now asked
for the report, but no motion has yet been filed.
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IN THE UNITED STATES DISTRICT COURT . ,/• ^FOR THE IVESTERN DISTRICT OF TENNESSEE/''WESTERN DIVISION /
MARTHA WILEY, et al.
Plaintiff,
vs.
MEMPHIS POLICE DEPARTMENT,
et al.
Defendants.
NO. C-73-8
/
/
]
REPORT ON REFERENCE CONCERNING DISCOVERY
Martha Wiley, as mother and next of kin of Fred Lee Berry,
deceased, has filed a complaint for the death of Fred Lee Berry who
was, as the complaint alleges, shot to death by defendants Callahan,
Roleson, Cox and Richards on January 8, 1972. Mrs. Wiley sued these
four defendants and the Memphis Police Department̂ City of Memphis;
Bill Price, Chief of Police of Memphis; Henry Lux, former Chief of
Police; vyeth Chandler, Mayor of Memphis; Henry Loeb, former Mayor or
Memphis; W. W. Wannamaker and Jule Ray as well as John Doe and others
similarly situated claiming that these defendants formulated,
effectuated and maintained an unreasonable firearms policy for the
police department which proximately resulted in Fred Lee Berry's death.
A motion to dismiss was filed on behalf of all defendants. Chief Judge
Bailey Brown, to whom this case was originally assigned, granted the
motion to dismiss as to the defendants Memphis Police Department and
the City of Memphis but overruled the motion as to the other defendants.
/
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Interroqatories numbers 11. 12 and 13. In interrogatory
number 11 the plaintiff asks if the Internal Security Bureau of the
Memphis Police Department made an investigation into the circumstances
surrounding the death of Fred Lee Berry. Interrogatory number 12 asks
the defendants to describe the extent of the investigation and give the
name and other details of each person interviewed in connection with
the investigation. Interrogatory number 13 asks the defendants to
identify all written statements, memoranda, transcripts or other notes
of each interview. These questions are objected to for a n\amber of
reasons which I shall discuss.
Although it was not specifically made a ground of defendants'
objections, the first problem with these interrogatories which comes
to mind is whether or not there remains anyone in the case after the
dismissal of the police department and the city with authority to r
respond. Although the information requested would be in the possession
of the City of Memphis and its police department, I believe the
defendants Bill Price and t̂ eth Chandler, as Chief of Police and
Mayor, respectively, would clearly have these records sufficiently
under their control to make the information requested available if
it is appropriate to do so. The affidavit of Inspector E. C. Swann,
which I shall discuss below says that the_Chief of Police has access
to the files of the Internal Affairs Bureau.
a statement is advised that the statement will be kept confidential
and used only for purposes of discipline. The defendants maintain
that, since officers who are interviev/ed are not given customary
constitutional protections, their statements should not be discover
able, or admissible, or both. They cite authority to the effect that
such an investigative procedure is legal and that statements obtained
in such investigations cannot be used in subsequent criminal proceed
ings . The obvious problem with this argument is that the present case
is a civil one and does not involve the constitutional protections
which surround a defendant in a criminal prosecution.
The defendants maintain that public policy compels a privilege
with regard to Internal Affairs investigations because, if confidentiali
ty is breached, the effectiveness of the investigations would be
hampered. An affidavit of E. C. Swann was submitted setting out the
procedures in making Internal Affairs investigations. The affidavit
says that the Internal Affairs files often contain hearsay, gossip and
other information from which the department hopes to develop leads in
its investigations and that public disclosure of this trivia would do
grave injury to those involved. Inspector Swann maintains in his
that disclosure of the Internal Affairs files v/ould serious
ly undermine and impair internal investigations in the police depart
ment and would deter persons from filing complaints. in addition,
counsel for defendants made a reference at oral arguments to an '
executive privilege but did not elaborate on this with citations to
authorities or otherwise.
The case of United States vs. Mackey, 36 F.R.D. 431 (1965)
does recognize such a privilege, but that case is from the District of
Columbia v/here the Metropolitan Police Department is an agency of tne
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executive branch of the United States Government. The district judge
in the Mackey case does go on to state generally that records of law
enforcement agencies such as the Washington Metropolitan Police
Department are regarded as confidential and not subject to public
inspection. He says that this is in the interest of law enforcement
for the protection of the public and individuals who might be under
investigation or might submit information, but does not cite authority
for this proposition. In Knott vs. Berini, 283 F.Supp.l (N.D. Ohio,
1968) District Judge Don J. Young denied discovery of internal records
of the Canton, Ohio Police Department on the authority of the Mackey
case. Judge Young acknowledged that one of the bases of the opinion
in the Mackey case was the separation of powers in the federal
government, but he did not read Mackey as upholding the police
internal records privilege solely on that ground. He pointed out that
Mackey gave other reasons for upholding the privilege, presumably
the general public policy reasons noted above. Judge Young did not
see any distinction between his case and the Mackey’ case on the basis
that his was a civil trial and Mackey was a criminal trial. '
In Alexander vs. Rizzo, 50 F.R.D. 374 (E.D.Penn.,1970) Chief
Judge John W. Lord, Jr. granted discovery of material related to
internal matters and procedures of the Philadelphia Police Department
in a civil rights case. Judge Lord pointed out that the case v;as
civil in nature and thus governed by The Federal Rules of Civil
Procedure. He however granted the discovery'- without prejudice to the
rights of the defendants to apply for a proper protective order.
While it is true that there is a strong public policy which
favors maintaining the complete confidentiality of internal records
of the police department, it is also true that there is a strong
9G
IN THE UNITED STATES DISTRICT COURT FOR THE VJESTERN DISTRICT OF TENNESSEE ________ WESTERN DIVTSTON
GUSSIE McGOWAN, Administratrix and next of kin of Elton Hayes, a deceased minor._________ _______
Plaintiff
CIVIL C-72-326
THE CITY OF MEMPHIS, TENNESSEE,IHE COUNTY OF SHELBY,‘‘JTENNESSEE, et al,_______________
Defendants.
REPORT ON REFERENCE CONCERNING DISCOVERY
The plaintiff in this case served siibpoenas ducus tecum
on Memphis Police Director Jay Hubbard and Assistant Police Chief
G. W. Hutchinson to take their depositions and to require them to
produce essentially all the material in the possession of the
Memphis Police Department concerning the investigation of the
death of Elton Hayes for whose wrongful killing this suit is brought.
The plaintiff's notice encompassed the investigation made by the
Internal Affairs Bureau of the Memphis Police Department and
specifically asked for statements taken by the Internal Affairs ■
Bureau of the named defendants and certain other witnesses.
The defendants have filed a motion to quash the subpoenas
for Hubbard and Hutchinson to the extent that they seek information
and statements from the Internal Affairs Bureau of the Memphis
Police Department. The defendants rely on the cases of United
States V. Mackey, 36 F.R.D. 431 (D.C.,1955) and Knott v. Perini,
283 F. Supp. 1 (N.D.Ohio, 1958), as well as two cases on the
subject decided in this district, Wiley v. Memphis Police Department
and others. No. C-73-8, decided by Judge v;ellford, and Ghoston v.
Starns, C-73-243, decided by Judge Brown on December 4, 1973.
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in the Wil^ case the plaintiffs initially asked for
inforroation concerning the nature and extent of an internal
security investigation of the Memphis Police Department. i
recommended that the defendants be required to respond, and Judge
Wellford required a response but limited his order to "the nature
and extent of an internal security investigation," excluding the
contents of statements of witnesses or reports. Later in that
case Judge Wellford ordered the production of certain statements,
but it is not clear whether these statements were taken by the
Internal Affairs Bureau or by others.
In the Ghoston case the plaintiffs sought discovery of
the actual investigative reports of the Internal Affairs Bureau
of the Memphis Police Department. In my report I reviewed the
scant authorities on the question and recommended that the
defendant be required to produce the information requested. ohe
court, however, required only that the defendant produce the names
and addresses of the persons who conducted the investigation and
names and addresses of persons interviewed together with informa
tion as to whether or not such persons gave statements. Tne court
held that the defendant "need not, however, produce to the plaintiff
or otherwise reveal the contents of any statements made by witnesses
nor the recommendations or conclusions of the investigating officers."
The court based its conclusion on the Wiley case, the Mackev case
and the Knott case.
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I have previously reviewed the authorities on this
question in both the Wiley and the Ghoston cases and see no
reason to reiterate them herel-̂ The defendants do maintain, in
addition to their public policy arguments, that it is inappropriate
for the plaintiff to discover information solely for impeachment
purposes. However, material for impeachment is usually discover
able. At Section 2015 of Wright and Miller. Federal Practice and
Procedure, it is observed that "[d]iscovery is commonly allowed
in which the discovering party seeks information with which to
impeach v/itnesses for the opposition."
There are some distinguishing factors between the
present case and the Wiley and Ghoston cases. Here, the defendant
has giyen the entire Internal Affairs investigative report to the
District Attorney's office, which vitiates any argument that the
Internal Affairs investigation should not be divulged to protect
the constitutional rights of the persons investigated. Here also,
we have an affirmative allegation that there appears to be
substantial conflict between statements given to the Internal
Affairs Bureau immediately after the incident and subsequent
•i/see also Re Story, 159 Ohio St.144, 36 A.L.R.2d 1312; and the annotations at 95 L.Ed.425 and 97 L.Ed.736. The Story case deals
with police records, and the L.Ed. articles deal generally v/ith the government's privilege not to disclose information.
1
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statements given by the defendants. In addition, the criminal
prosecutions of the defendants have terminated with not guilty
verdicts.
Essentially, the question comes down to whether the
need for the evidence requested in a particular case outweighs
the public policy for the confidentiality of police internal
affairs investigations. In my report in the Ghoston case, 1
made the following comment on that point:
"There are, to be sure, persuasive public
policy argxments for not divulging police internal affairs reports, but there are equally forceful public policy argiments
for divulging these reports when they would assist in the full and fair disposition of civil rights litigation. I see no reason why these two conflicting views cannot be adequately accomodated by the use of protective orders."
Discoursing on the duty of citizens to give testimony. Professor
Wigmore makes these observations:
For more than three centuries it has now been recognized as a fundamental maxim that the piiblic (in the word sanctioned by Lord Hard- wicke) has a right to evefy man's evidence.V̂ hen we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of
giving and that any exemptions v;hich may exist are distinctly exceptional, being so many derrogations from a positive general rule:
It follows, on the one hand, that all privileges of exemption from this duty are exceptional, and are therefore to be discountenanced. There must be good reason, plainly sho\m, for their existence. In the interest of developing scientifically the details of the various recognized privileges, judges and lawyers are apt to forget this exceptional nature.The presumption against their extension is
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not observed in spirit. The trend of the day is to expand them as if they were large
and fundamental principles, worthy of pursuit into the remotest analogies. This attitude
is an unwholesome one. The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges. They should be recognized only within the narrowest limits required by principle. Every step beyond these limits helps to provide, without any real necessity,
an obstacle to the administration of justice.[Section 2192, Wigmore, Evidence1,
It is my view that the plaintiff has a legitimate need
for statements taken by the Internal Affairs Bureau of the
Memphis Police Department concerning the incident which is the
sifbject of this lawsuit, and that her need for these statements
conspicuously outweighs any public policy for withholding the
statements. I therefore recommend that the defendants be
required to produce them. I do not, however, %ee any reason
for the plaintiff to have the entire investigative file, which
includes opinions and comments of the various investigators.
To the extent that the plaintiff seeks these doctmients, I
recommend that her motion be disallowed.
Submitted this the 4th day of April, 1975.
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; ICITY OF MEMPHIS, Tennessee;WYETH CHANDLER, Mayor of XMemphis; JAY W. HUBBARD,Director of Police of Memphis, X and E. R. HYMON, Police Officer of the City of Memphis, X
Defendants. X
CIVIL ACTION NO. C-75-145
OBJECTION TO MAGISTRATE'S REPORT ON REFERENCE CONCERNING DISCOVERY
COME NOW the Defendants, Memphis Police Department, City of
Memphis, Tennessee, Wyeth Chandler, Jay W. Hubbard, and E. R. Hymon,
and respectfully object to the Magistrate's Report On Reference
Concerning Discovery filed in this cause on March 4, 1976, following
a hearing. In support of their objection. Defendants rely upon
their Response And Objection To Plaintiff's First Request For
Production Of Documents which said Response And Objection was filed
in this cause on November 12, 1975. Copy of same is attached hereto.
In support of their Objection, Defendants rely upon the cases of
Brown v. Thompson, 430 F.2d 214 (C.A.5, 1970) and Kott v. Perini,
283 F.Sup. 1 (N.D. Ohio, 1968).
With respect to certain answers given to Interrogatories,
the Magistrate's Report dealing with Interrogatory 17, propounded
to Defendant Hymon, states that the answer is not detailed and that
Defendant Hymon should be required to give a more specific answer
and supply such information concerning this matter as is not only
in his possession but in the possession of his attorneys as well.
103
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Defendants submit that Defendant Hyraon has answered the question
as best he could and with as much information as he can recall,
and that there is no requirement that he search certain records
not in his control to furnish the answer. If the Plaintiff seeks
further information, he should seek it from other sources. Certainly,
there is no requirement that Defendant Hymon's attorney furnish
information he has in his file. As a further note it might be
added that Defendant Hymon's attorney has no further information in
his file concerning the answer to this question.
With regard to Interrogatories 25 and 26 to Defendant Hymon,
Defendants submit that if he did not know the answer to these
questions relative to insurance, he cannot respond, and he has no
obligation to seek this information which is readily available through
the City of Memphis. Further, there is no requirement that the
attorney be required to furnish information he has in his possession.
Respectfully submitted.
V V L<,tCci —Henry L. KleStaff Attorney, City of Memphis Attorney for Defendants Suite 3500, 100 North Main Bldg. Memphis, Tennessee 38103
CERTIFICATE OF SERVICE
I, Henry L. Klein, Attorney, hereby certify that a copy of
the foregoing Objection To Magistrate’s Report On Reference Concerning
Discovery has been mailed to Walter L. Bailey, Jr., Esquire,
901 Tenoke Building, Memphis, Tennessee 38103, and Drew S. Days, III,
Esquire, 10 Columbus Circle, New York, New York 10019, this /d
day of March, 1976.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE VrESTERN 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.
CIVIL ACTION No. C-75-145
DEFENDANT’S RESPONSE AND OBJECTION TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
COME NOW the Defendants, 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, and in response and in objection
to Plaintiff’s First Request For Production Of Documents,’ state
as follows;
1. Defendants object to producing material requested
in Item 1, Page 2 of Plaintiff’s Request on the grounds that
the investigation of the Memphis Police Department on or about
October 3, 1974, is privileged.
2. Defendants object to producing the material requested
in Item 2, Page 2 of Plaintiff’s Request on the grounds that the
personnel file on Defendant, E. R. Hymon, is privileged and further
that said file is immaterial and irrelevant to this cause of
action.
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Q
3. Defendants object to producing the material requested
in Item 3, Page 2 of Plaintiff's Request on the grounds that the
directives referred to are privileged and further that they are
not material or relevent to this cause of action.
4. Defendants object to producing the material requested
in Item 4, Page 2 of Plaintiff's Request on the grounds that the
directives referred to are privileged and further that they are
immaterial and irrelevant to this cause of action.
5. Defendants object to producing the material requested
in Item 5, Page 3 of Plaintiff's Request on the grounds that it
is too vague, too broad, privileged and further that it is irrelevant
and immaterial to this cause of action.
6. Defendants object to-producing the material requested
in Item 5, Page 3 of Plaintiff's Request on the grounds that this
information is privileged and the request is too broad.
7. Defendants object to producing the material set out
in Item 7, Page 3 of Plaintiff's Request on the grounds that it
is too broad.
8. Defendants object to producing the material requested
in Item 8, Page 3 of Plaintiff's Request on the grounds that it
is too broad and further that it is immaterial and irrelevant in
this cause of action.
9. Defendants object to producing the material set out
in Item 9, Page 3 of Plaintiff's Request on the grounds that it
is privileged and further that it is immaterial and irrelevant
to this cause of action.
10. Defendants object to producing the material set out
in Item 10, Page 3 of Plaintiff's Request on the grounds that it is
privileged and further that it is immaterial and irrelevant to this
cause of action.
11. Defendants object to producing the material set out
in Item 11, Page 3 of Plaintiff's Request on the grounds that it is
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o
privileged and that it is iininaterial and irrelevant to this cause
of action.
12. Defendants object to producing the material set out
in Item 12, Page 3 of Plaintiff's Request on the grounds that it
is privileged, too broad, and further that it is irrelevant and
immaterial to this cause of action.
13. Defendants object to producing the material set out
in Item 13, Page 3 of Plaintiff's Request on the grounds that it
is privileged, too broad, and further that it is irrelevant and
immaterial to this cause of action.
14. Defendants object to producing the material set out
in Item 14, Page 4 of Plaintiff's Request on the grounds that it
is too broad, it is privileged, and further that it is immaterial
and irrelevant to this cause of action.
15. Defendants object to producing the material set out
in Item 15, Page 4 of Plaintiff's Request on the grounds that it
is immaterial and irrelevant to this cause of action.
16. Defendants object to producing the material set out
in Item 16, Page 4 of Plaintiff's Request on the grounds that it
is privileged, too broad, and further that it is immaterial and
irrelevant to this cause of action.
17. Defendants object to producing the material set out
in Item 17, Page 4 of Plaintiff's Request on the grounds that it
is privileged, and immaterial and irrelevant to this cause of
action.
Dated the / day of November, 1975.
, v^,
Hdnry L. KleinStaff Attorney, City of Memphis Attorney for Defendants Suite 3500, 100 North Main Bldg. Memphis, Tennessee 38103
- 3 - 10
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
_____ WESTERN DIVISION
' r - C
1 I u
NO. C-75-145
CLEAMTEE GARNER, etc..
Plaintiff,
MEMPHIS POLICE DEPARTMENT, )
et al., )
)
Defendants. )
O R D E R
Following the pre-trial conference in this
matter, the defendants have filed a communication with the
Court, a copy to plaintiff's counsel, objecting to the
request for production of documents No. 14 relating to "all
documents relating to incidents in which lethal force was
resorted to" during a specific period. Unless persuaded by
plaintiff to the contrary, the Court will limit the request
to requiring the defendants to make available to the
plaintiff information setting forth each and every incident
in which lethal force was resorted to, giving the date and
the officer or officers involved, without producing all
official investigation reports and citizen complaints
connected therewith. The defendants will produce, however,
disciplinary proceedings instituted, if any, against officers
involved with regard to the episodes of lethal force, during
said period.
lO o
IQj
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0
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CLEAMTEE GARNER, father and next of kin
of 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.
CIVIL ACTION
No, C-75-145
Plaintiff's Proposed Findings of
Fact and Conclusions of Law
This is a civil rights action filed in April, 1974 by
Cleamtee Garner to recover for the shooting death of his son,
Edward Eugene Garner, on October 3, 1974. Named as defendants
were the Memphis Police Department, the City of Memphis, Tennessee
Wyeth Chandler, Mayor of Memphis; and E.R. Hymon, Police Officer
of the City of Memphis. Defendant Hymon was sued for having fired
the shot that caused Garner's death; the other defendants were
sued on the grounds that their failure to exercise due care in the
hiring, training and supervision of defendant Hymon made them
equally responsible for Garner's death.
Jurisdiction was founded upon 28 U.S.C. §§ 1343(3) and 1331,
since plaintiff alleged that the death of his son worked a depriva
tion of rights accorded Edward Eugene Garner by the Constitution
and laws of the United States. Plaintiff cited specifically in
this regard the Fourth Amendment right to be free of unreasonable
seizure of the body, the Fifth Amendment right to due process of
law, the Sixth Amendment right to a trial by one's peers and the
110
0
Eighth Amendment right to be spared cruel and unusual punishment,
all rights incorporated into the due process clause of the
Fourteenth Amendment and made applicable to the States. Statutory
rights granted by 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988
were also alleged to have been violated. A pendent claim against
the same defendants under the Constitution and laws of the State
of Tennessee was also alleged. Violation of rights and duties
created by Tenn. Code Ann. § 40-808 with respect to the proper
circumstances for resort to lethal force by police officers was
specifically asserted.
By order of August 18, 1975, this Court ruled that no cause
of action could lie against the Memphis Police Department, or the
City of Memphis under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)
since they were not "persons" within the meaning of that statute.
City of Kenosha v. Bruno, 412 U.S, 507 (1973) and Monroe v. Pape,
365 U.S.- 167 (1961). Jurisdiction of the Court over these defend
ants was found to have been properly invoked, however, under 28
U.S.C. § 1331. Bivens v. Six Unknown Named Agents, 403 U.S. 388
1971. In all other respects, jurisdiction was upheld.
The Trial
After the parties had completed all discovery a bench trial
was held before this Court from August 2-5, 1976, Testifying for
the plaintiff were Cleamtee Garner, the plaintiff; Douglas Enoch,
an architect; David Michael Cordera, a paramedic; Ms. _____ Stepp,
custodian of medical records at John Gaston Hospital; Mr. Liddell
Anderson, owner of the premises at 739 Vollentine Avenue in
Memphis, Tennessee; Dan Jones of the Shelby County Sheriff's
Department; Eugene Barksdale, an inspector on leave of absence
from the Memphis Police Department; and Dr. Jerry T. Francisco,
County Medical Examiner of Shelby County, Tennessee. Portions
of the deposition of defendant E.R. Hymon were read into the record
2 - 111
•')—
as part of plaintiff's case pursuant to provisions of Rule 32 of
the Federal Rules of Civil Procedure. And Capt. John A. Coletta,
Commander of the Training Division of the Memphis Police Deaprt-
ment, was called by plaintiff for purposes of cross-examination
pursuant to Rule 611(c) of the Federal Rules of Evidence. Testify
ing for defendants were defendant J.W. Hubbard, former Director
of Police of Memphis; defendant E.R. Hymon; Leslie B. Wright, a
Memphis police officer who was defendant Hymon's partner on the
night Garner was shot; Velton J. Rogers, a probation officer
attached to Juvenile Court; F.J. Wheeler,a Memphis police officer, and
C.A. Russell, a Memphis police officer attached to the Crime
Scene Squad.
The Testimony
Cleamtee Garner, the plaintiff, testified first. He indica
ted that he was the father of the deceased, Edward Eugene Garner.
At the time of his death, Edward Garner was 15 years old, about
5'3" tall and weighed under 100 lbs., according to his father.
Mr. Garner testified that he has lived in Memphis since 1945 after
to leaving the Army, has owned his own home at 928 Tully in Memphis
for the past eleven years and has worked at the Defense Depot in
Memphis for 24 years as a material packer. In addition to Eugene,
Mr. Garner is the father of three boys ages 22, 20, 19 and two
girls, 16 and 14. Two of the boys are high school graduates, all
have jobs and the two girls are doing well in high school and
expect to graduate. The mother of Eugene and the other children,
Bertha Lee Garner, is also alive and living with the family.
Mr. Garner testified that he had not experienced any real
trouble insofar as his children other than Eugene were concerned.
They had, to his knowledge, no criminal records nor had they been
disciplinary problems at school. He admitted, however, that
Eugene was somewhat of a problem. Prior to his death Eugene had
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been placed on probation for allegedly participating in a Third
Degree Burglary, he had been charged with violating a curfew
imposed in Memphis and had been placed on probation for taking a
^I^sntity of pennies from a neighbor's home. In the first instance,
Mr, Garner explained that Eugene had been in the company of other
boys who were regarded by the authorities as having initiated a
plan to climb into a private home. The curfew violation was,
according to Mr. Garner, simply a mistake: Eugene had been working
in a sundry store at night and went out to observe an incident
where police were present; because the police thought Eugene was
simply wandering the streets, he was cited for violating the
curfew. The third incident involving pennies belonging to a
neighbor came to the attention of juvenile authorities through a
complaint filed by Mr. Garner himself. Mr. Garner had been in
formed by one of his other children that Eugene had pennies that
belong to him, Mr, Garner, first, forced Eugene to return
the pennies, apologize and, then, took him to the juvenile officer
to report the incident. On this occasion and in several others
relating to problems Eugene encountered at school, Mr. Garner
took it upon himself to determine what was wrong and to take steps
to see that Eugene improved his conduct. Mr. Garner described
his son as a likeable, intelligent boy who would have turned out
all right with proper supervision and guidance. Since Mr. Garner
admitted that his working hours 4:00 P.M. to 12 midnight,made it
hard for him to provide such direction for Eugene, he had decided
to retire from his job just before his son's death.
Douglas Enoch, an architect, testified that he had been asked
by plaintiff's counsel to visit the scene at 739 Vollentine and
to prepare a scale model setting out accurately that scene, with
pertinent heights and distances suitably marked. He identified
Exhibits 1, 2, 3, 4, and 5 as photographs accurately depicting
the back of the residence at 739 Vollentine, Exhibits 7 and 8
- 4
113
*>•
as photographs accurately depicting the area behind the shed or
"outer house" behind 739 Vollentine; and Exhibit 9 as a photo
graph accurately depicting the area behind the chain link fence
running east-west behind the backyard of 739 Vollentine. The
model he prepared on a scale of 1/4 inch = 1 foot was
marked as Exhibit 6. Exhibits 1-9 were duly admitted into evi
dence by the Court.
David Michael Cordera, a paramedic with the Memphis Fire
Department, testified that he was called to 739 Vollentine on
October 3, 1974 to rush a person who had been shot by a police
officer at that location. When he arrived on the scene, Cordera
stated that he saw a black male writhing on the ground, uttering
moans and crying and being held down by a black police officer.
He recalled the officer's expressing surprise at how young the
wounded person was. Mr. Cordera marked and initialed on Exhibit
6 the spot where Garner's body was lying when he arrived at 739
Vollentine.
Ms. _____ Stepp, custodian of medical records at John Gaston
Hospital, read from official hospital records relating to treat
ment of Edward Eugene Garner on October 3, 1974. They indicated
that Garner had been brought to the hospital with a bullet wound
to the right rear portion of the skull, that he was moaning and
groaning on arrival and that he died during emergency surgery.
The records were admitted into evidence as Exhibit 10.
Liddell Anderson, owner of the residence at 739 Vollentine,
testified on direct with respect to a three foot high chicken-wire
fence that ran from the back of his house in a north-south direc
tion, separating his yard from that of 737 Vollentine. On cross-
examination, Mr. Anderson verified the accuracy of certain photo
graphs depicting the condition of his home on October 3, 1974.
Exhibit 11 showed the inside of the house, 12 showed the window
to his wife's room, 13a and 13b depicted the interior of his wife's
- 5 - 114
I- . . r :■
*
room, 14 showed the interior of the kitchen and 15 showed the
exterior of the kitchen. Exhibits 11, 12, 13a, 13b, 14 and 15
were duly admitted into evidence. Mr. Anderson marked and ini
tialed Exhibit 5 to indicate where the fence in question was
located.
The following pages of the deposition of defendant E.R. Hymon
taken on April 26, 1976 were read into the record during the pre
sentation of plaintiff's case;
Page Lines
4 6-9,
5 1-3,
6 1-13
23 1-24
24 1-24
30 22-24
31 1-17
33 19-24
34 1-24
35 1-24
36 1-21
47-100 1-24
101 1-16
107-112 1-24
113 1-21
114 15-24
115 1-8
In these portions of his deposition, defendant Hymon testified
that he was a native Memphian, attended public schools in Memphis
and received a B.S. degree in English from Tennessee State College
He played basketball and softball in both high school and college,
receiving a high school varsity letter in basketball. He is
6'4" tall. He indicated that, prior to joining the Memphis
Police Department in 1973, he was given training in physical
combat — use of the nightstick and judo — and required to do
an "excessive amount of running." When asked about the extent
to which he received training in when resort to lethal force was
appropriate in apprehending a fleeing felon, Hymon testified
that he was told to use his discretion by instructors from the
Memphis Police Department. Hymon was also asked about tests given
him by the Memphis Police Department to determine his physical
- 6 - 115
‘V-
abilities. In such a test that measured his performance in ten
different physical exercises, Hymon scored 75 out of a possible
100 points. This score was above the minimum required of appli
cants for employment as Memphis police officers.
Under further questioning, defendant Hymon then proceeded
to describe the circumstances surrounding the shooting death
of Edward Eugene Garner on October 3, 1974. On that night,
Hymon was working a 4: 00 PJi . to midnight shift in Ward 128 with
his partner, Leslie B. Wright. While sitting in the patrol car
at a firehouse located at Stonewall and Chelsea, Officer Wright
received a radio call to investigate a report that a prowler was
inside at 737 Vollentine in Ward 129. After Officer Wright in
formed Hymon of this dispatch, both officers proceeded to 737
Vollentine. When they arrived at 737 Vollentine, a woman stand
ing on the porch at that location told defendant Hymon, "They
are breaking in" and pointed toward 739 Vollentine. Hymon went
back to his partner, told him what the woman had said and directed
him to proceed around the side of the residence at 739 Vollentine
opposite from the side he was taking. The house at 739 Vollentine
faces north, the back faces south and 737 is located on its west
side. Hymon saw lights on in the front and on the southeast side
of the house. Hymon moved from front of 739 to rear of the house
along its west side with a flashlight containing five D-cell
batteries in his right hand to illuminate the area and his revolved
in his left. At that time, Hymon had no indication that the sus
pect was armed. When he got to the southwest corner of the house
he heard a door slam, saw someone move across a streak of light
(created by a porchlight turned on in back of 737 Vollentine) and
heard noise on a 55j'-6' chain-link fence running across the
length of the back yard in an east-west direction. Weeds or
"Johnson Grass" about half the height of the fence appeared to be
on the south side. He then shined his flashlight on the fence and
- 7 llo
and saw a "male black". An outer building was observed at the
southeast corner of the back yard abutting the chain-link fence.
From where he was standing at the southwest corner of the house,
Hymon said he could see a broken window, a garbage can under
that window and the area around the back door. After he located
the person at the fence, he yelled, "Halt. Police". The person
at the fence looked in his direction. He appeared to Hymon to be
about 17-18 years old, between 5'5"-5'7" tall and roughly 130 lbs.
Hymon could see Garner's hands but could not see his feet because
he was in a "stooped position". Garner halted briefly as Hymon
ordered. Hymon then called to his partner, Wright, who had come
into his view at the southeast corner of the house. Hymon told
Wright that Garner was on the fence and that he should come
around and get him. Wright, however, asked Hymon to repeat his
instructions and started "perhaps a little hesitantly" around to
where Hymon had directed him. Hymon w a s ."reasonably sure" that
Garner was unarmed, since he could see his hands at all times.
When Hymon told Wright once again where Garner was, the latter
"sprang over the fence". When Garner was well up on the fence,
Hymon fired his .38 caliber. Model 10, Smith & Wesson revolver,
hitting him once in the head though he aimed, as he was taught,
at the largest target, the back. Hymon testified that he fired
because a chicken-wire fence separated him from the backyard
area of 739 and he did not feel that he could have climbed it and
caught Garner who was between 30-40 feet away: "I'm not that
fast," he remarked. Yet Hymon admitted that he did not have to
jump over the fence, he could have stepped over it. After being
shot. Garner's body fell across the top of the chain-link fence,
his head, arms and torso on the south side, his legs on the north
side. Hymon and Wright removed Garner's body from the fence;
Wright then called for an ambulance and for police officials to
come to the scene.
8 - 11'
Dan Jones, Chief of Detectives for the Shelby County Sheriff's
Department, was accepted by the Court as an expert on proper police
procedures in the Memphis area. When presented with hypotheticals
which contained critical facts about the shooting of Garner, and
asked whether the procedure used by defendant Hymon, Chief Jones
answered negatively. He stressed that under circumstances like
those at the time Garner was found by Hymon behind 739 Vollentine
the officer had a duty to run after the fleeing felon prior to
resorting to lethal force and that, had he been in Hymon's place he
would definitely have run after Garner. Eugene Barksdale, Inspector
of the Memphis Police Department on leave, was likewise qualified
as an expert on proper police procedure. He concurred with
Chief Jones that Hymon should have run after Garner and resorted
to lethal force only when that alternative failed.
Capt. John A. Coletta, Commander of the Training Division of
the Memphis Police Department was called as a witness in the
presentation of plaintiff's case. He testified that prior to
assuming his present position, he served as Range Officer in
charge of the Memphis Police Department Firing Range and instructor
at the Police Academy in firearms training. He indicated that he
was responsible for training the class of police recruits in July
and August, 1973 that contained defendant Hymon. He was asked
what if any instruction was given to recruits in the use of lethal
force. He mentioned that one film, "Shoot - Don't Shoot", was
shown during Hymon's training. This film was marked, introduced
into evidence as Exhibit 16 and projected during Capt. Coletta's
testimony. The film discussed the circumstances under which a
police officer would be warranted in using 'lethal force to protect
his own life or the lives of third parties. It cautioned that a
police officer should use lethal force in self-defense only when
a suspect has the "abilty and opportunity" to injure the officer
and his life or limb is clearly in "jeopardy". "If there is the
- 9 - 113
slightest doubt" that these three elements are all present "don't
shoot", stresses the film. While the film does allude to the
fact that officers in some jurisdictions are permitted to shoot
fleeing felons, the only examples of this rule in the film are
ones in which the fleeing felon is armed. Capt. Coletta conceded
that no film was shown that dealt directly with the use of lethal
force to apprehend unarmed fleeing felons. He pointed out that
lectures on Tennessee law and police regulations regarding lethal
force were handled by the Police Department's Legal Advisor during
the training course. No training was given to recruits, he
admitted, with respect to alternative techniques for apprehending
unarmed fleeing felons that should be exhausted before resorting
to lethal force, even though Tennessee law dictates that lethal
force be used under such circumstances only as a last resort when
other means of apprehension have failed. The Police Department's
Firearms Manual prepared by Capt. Coletta and others deals in
some detail with techniques for using firearms but contains no
such information on the apprehension of unarmed fleeing felons.
In sum, police recruits receive no training, or guidance as such
— not from the Range Officer, not from the Legal Advisor, not
from the Firearms Manual — in this regard. They are simply
told, according to Coletta, that they should be able to live
with themselves if they have to shoot and kill a person while on
duty. The use of lethal force under such circumstances is left
to each officer's discretion.
The examination of Capt. Coletta then turned to a discussion
of weapons and ammunition used by Memphis Police Department
officers in their official capacity. Capt. Coletta acknowledged
that there were essentially three subcategories of expertise
within the general field of ballistics: internal ballistics,
which concerns itself with characteristics of a projectile within
the gun; external ballistics, which addresses questions related
- 10 - 113
—
to behavior of projectiles from the time they exit from a gun
to the point of striking a target; and terminal or wound ballis
tics, which studies the behavior of projectiles after they strike
a target or live tissue. Capt. Coletta indicated that his exper
tise was in the first two subcategories of ballistics, in view
of his training on ballistics testing he had conducted person
ally for the Police Department. Under examination, Capt. Coletta
testified that Memphis police officers were issued a .38 caliber
Smith and Wesson revolver. Prior to 1970, a .38 caliber 158 grain
lead roundnose Winchester cartridge was the ammunition issued
for use in service revolvers. Between 1970 and 1972, the Depart
ment issued a .38 caliber 110 grain, semi-jacketed hollow-point
1/Smith & Wesson cartridge. In 1972, Capt. Coletta was asked
by Department officials to conduct a study to determine whether
the weapon and ammunition presently issued to line officers were
adeguate. According to Capt. Coletta, the police officers'
union had contended that more powerful weapons and ammunition
were necessary to insure that the officer would be able to in
capacitate an armed suspect immediately. The internal memoran
dum setting out the objectives of the study was admitted as
Exhibit 17. As a result of tests conducted by Capt. Coletta,
the Department adopted for general use the .38 caliber 125 grain,
semi-jacketed hollow-point Remington cartridge. The bullet that
caused the death of Edward Garner was of this typel
The tests conducted by Capt. Coletta to determine the most
effective bullet for Department use were designed to measure
essentially three characteristics of various types of ammunition:
1/ "cartridge" refers to the entire ammunition; the ’base" which
does not leave the weapon upon firing, the "bullet" or "slug"
which does leave the weapon, and the "load", or the amount of
gun powder included.
- 11 - 120
i.....
“ ;
accuracy, penetration and cavitational effect. Accuracy was
measured by firing several rounds of each bullet from a fixed
weapon at a target; the farthest distance between any two bullet
holes on the target was then recorded. Penetration was measured
by firing bullets into a row of pine boards and seeing how many
boards were pierced or dented by the projectile. Cavitational
effect was measured by firing bullets into clay blocks and seeing
how large a cavity was created in a block upon impact from the
bullet. The velocity of each bullet as it left the fixed weapon
was also measured with an electrical device. Since the tests
were also designed to determine which bullet would have the
greatest "stopping power" or ability to incapacitate, velocity
was a significant consideration. For kinetic energy of a pro
jectile, that is the amount of energy it expends in a target upon
impact (and, to a large extent its wounding capacity), depends
heavily upon the projectile's velocity. Mathematically, this-
V2
phenomenon is expressed in the formula K = Mx 2 where K = kinetic
energy, M = mass (the weight plus gravitational force of the
bullet) and V = velocity. Capt. Coletta's tests of the three
bullets used prior to 1970, between 1970 and 1972 and after 1972
revealed the following with respect to their relative velocities:
Bullet
158 grain, Lubaloy
roundnose Winchester
In Use
Prior to 1970
110 grain, semi-jacketed
hoUcw-point Smith & Between 1970-1972
Wesson
125 grain,semi-jacketed
hollow
After 1972
Velocity
(in feet per sec.)
872 - 25
1050 - 97
1425 - 62
In other words, the velocity of the bullet used after 1972 was
almost twice that of the bullet used up to 1970.
Weight of bullets is expressed in the grains; 7,000 grams
equal one pound.
- 12 - 121
J
effect in clay would mean greater "stopping power". And he ex
pressed awareness of professional studies that supported the view
that the 110 grain would be more effective than the 158 grain1/and that the 125 grain would be most effective. Capt. Coletta
defended the adoption of the 125 grain based upon its overall
performance in the tests discussed above and upon the fact that
it would be less likely to ricochet than other bullets. He did
admit, however, that the LEAA study had concluded that all com
mercially available ammunition posed significant risks associated
with their tendency to ricochet. A document reflecting the
results of Capt. Coletta's study was admitted into evidence as
Exhibit 19. Capt. Coletta was asked why Memphis Police Depart
ment officers were trained to shoot at the "center mass", i.e.,
the torso area where viscera would likely be hit, rather at other
less vital parts of the body. This inquiry was pressed parti
cularly with respect to the shooting of unarmed fleeing felons.
Capt. Coletta responded that he seriously doubted whether such
accuracy could be taught given the capabilities of recruits to
the Memphis Police Department, the time allotted for training
and budgeting constraints.
Capt. Coletta was asked whether he had any awareness, in
view of his expertise in ballistics, of the extent to which
the=us^e?^?># certain types of bullets were banned for use in inter-
4/ He acknowledged, for example, that Dr. Vincent DiMaio, a
renowned forensic pathologist had found that the 125 grain bullet
expended three times as much kinetic energy as the 158 grain and
a fourth more than the 110 grain. He also was familiar with a
study conducted by the Law Enforcement Assistance Administration
(LEAA) that found that the 125 grain had three times the Relative
Incapacitation Index (RII) as the 158 grain and twice that of the
110 grain. Relative Incapacitation Index was defined as the
ability of a bullet to render an armed suspect confronting a
police officer instantaneously non-functional and incapable of
posing a continued threat to the officer's safety.
123
- 14 -
national warfare by the Hague Convention of 1899. He stated
that he understood that the convention banned the use of "Duin
Dum" bullets (bullets intentionally disfigured to produce more
grievous wounds than ordinary bullets) and that the United
States was not a signatory of the Convention. When he was read
language from the "Declaration (IV,3) Concerning Expanding
Bullets" (Hague, 1899) which indicated that the signatories
would abstain from the "use of bullets which expand or flatten
easily in the human body, such as bullets with a hard envelope
which does not entirely cover the core or is pierced with
incision," he conceded that hollow-point, semi-jacketed bullets
might arguably fall within the category of those banned by the
Declaration. Hollow-point bullets have a hole in the lead slug
which, upon impact, causes the bullet to flatten, creating a
diameter greater than that of a roundnose bullet;
the greater the presenting diameter, the greater the wound is
likely to be. In semi-jacketed bullets, the lead slug is not
entirely encased which causes the uncovered area of lead to peel
back over the encased portion producing a greater presenting
diameter at impact. It was Capt. Colette's understanding that
the United States Government did not permit the use of hollow-
point, semi-jacketed bullets by its armed forces in part to avoid
any international disputes over violations of the Hague Declara
tions of 1899 despite the fact that it did not sign the document.
A document reflecting the course of instruction provided to
recruits at the 36th Session (July 30 - September 21, 1973) of
the Memphis Police Department Training Academy was admitted
into evidence as Exhibit 20 during Capt. Coletta's testimony.
During examination by counsel for defendants, Capt. Coletta
described the establishment and operation of the Firearms Review
Board. He stated in response to a question from counsel for
plaintiff that he could not recall an instance when an officer
- 15 - 124
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• 1̂,'
was found by the Board to have fired his weapon improperly.
Exhibit 21, purporting to be the conclusion reached by the Fire
arms Review Board with respect to the shooting of Edward Garner
was marked for .identification but not admitted.
Dr. Jerry T. Francisco, Medical Examiner for Shelby County
since 1961 and Chief Medical Examiner of the State of Tennessee
since 1970 was subpoenaed to testify in plaintiff's case. He
was accepted by the Court as an expert witness in the areas of
forensic pathology and terminal (wound) ballistics. Dr. Fran
cisco testified that he performed an autopsy upon the body of
Edward Eugene Garner to determine cause of death. His exami
nation of the body revealed that Garner was 5'4" tall, between
85 and 100 lbs. in weight and generally thin. The bullet entered
Garner's head slightly behind and above the right ear and exited
in the left rear part of the skull. Dr. Francisco admitted
the possibility that Garner was able to see Officer Hymon at the
time he was shot. The autopsy identified no marks on the hands
or torso that might have been caused by the sharp, pointed wire
at the top of the chain-link fence where his body fell. Garner
was found to have a blood alcohol level of .09 (about the level
one would get from drinking four cans of beer); Dr. Francisco
testified that such an alcohol content would probably have
slowed Garner's reaction time.
With respect to the theoretical ability of various bullets
to wound. Dr. Francisco testified that two formulas were generally
used to reach such determinations. The first, K = M x Y2l , was
2
discussed by Capt. Coletta. Once kinetic energy (K) is deter
mined (measured in foot-pounds), a second calculation is neces
sary, according to Dr. Francisco, to measure potential wounding
effect. This second formula is expressed a s W - E x i x i . x KT A
,in which W = wounding effect, E = Kinetic energy, T = time during
which bullet is in contact with the body, A = presenting area of
bullet upon impact and K - a number of variables that cannot easily
. 125
be quantified.
Based upon his knowledge of these formulas and his presence
during Capt. Coletta's testimony with respect to the findings
of his study of the 158 grain, 110 grain and 125 grain bullets.
Dr. Francisco was able to reach the following conclusions:
1) The 125 grain bullet has the greatest
potential wounding capacity of the three,
the 158 grain has the least;
2) Hollow-point bullets have a greater
potential wounding capacity than roundnose
bullets because of their larger presenting
area (A) on impact;
3) Semi-jacketed bullets also have larger pre
senting areas and, consequently, greater
potential wounding capacity than fully-
jacketed bullets;
4) The results of Capt. Coletta's cavitational
effect tests are consistent with what one
would expect based upon theoretical analysis*
bullets with greater wounding capacity have
greater cavitational effect.
Dr. Francisco testified that, based upon the purported ability
of semi-jacketed, hollow-points to expand or flatten easily in
the human body, he would conclude that such bullets fall within
the category of those banned for use in international warfare
by the Hague Declaration of 1899. He pointed out that the pheno
menon of "yaw" or the tendency of a bullet to rotate off center
during flight might, in any given case, cause a bullet to hit the
target at an angle rather than head-on. As a general rule,
however, hollow-point, semi-jacketed bullets would tend to flatten
more easily than roundnose, jacketed bullets. Dr. Francisco
demonstrated the wounding formulas and the effect of yaw in
writing for the Court's benefit during his testimony; the docu
ment containing these writings was marked and admitted into
evidence as Exhibit 22. A bulletin sent to police officials
which defense counsel sought to use for purposes of cross-examin
ing Dr. Francisco was marked as Exhibit 23 but not admitted.
When asked by the Court whether Garner's wound was consistent
with what one might expect based upon the theories he discussed.
- 17
12G
Dr. Francisco indicated that he could not reach any such con
clusion based upon one case study.
At the end of Dr. Francisco's testimony which concluded
plaintiff's case, plaintiff asked the Court to take judicial
notice that, under Tennessee law, Edward Eugene Garner had a life
expectancy of 54.95 years at time of death. Tenn. Code Ann. (Vol.
1, 1975 Cumulative Supplement at 515). Upon the conclusion
of plaintiff's case, defendants moved to dismiss the entire action
With plaintiff's consent, the Court dismissed the Third and Fifth
Claims for Relief against defendants J.W. Hubbard and Wyeth
Chandler, respectively. Claims against defendants City of
Memphis and the Memphis Police Department for their alleged
failure to exercise due care in hiring defendant Hymon, set out
in Paragraphs 24 and 37, were also dismissed. In all other
respects, the Court reserved its ruling on the motion to dismiss.
The first witness for defendants was Jay W. Hubbard, former
Director of Police in Memphis. He testified to his efforts, in
general', to bring more efficiency and professionalism to the
Department during his tenure as Director, Specifically, he
described his promulgation in 1S74 of a revised general order
with respect to the use of lethal force by Memphis officers
which was more restrictive than Tennessee law on the subject
(Exhibit 24) and of a general order creating a Firearms Review
Board during the same year (Exhibit 25). He explained the
organization and operation of the Firearms Review Board, And he
related the history of the Department's decision to issue 125
grain, hollow-point, semi-jacketed Remington ammunition to its
officers. According to Hubbard, the shooting death of an officer
by an assailant who fired despite having been shot several times
by the officer made the move to more powerful "loads" imperative.
Hubbard decided on the 125 grain bullet in view of the results of
Capt. Coletta's study and his own knowledge of the capabilities
- 18 - 127
of various types of aitununition. He indicated that he was
familiar with the Garner incident and that Hymon was not dis
ciplined by the Department for his conduct nor was Hymon
indicted by a grand jury that investigated the shooting.
Elton Richard Hymon testified with respect to his educational
background, his employment at Fort Pillow Correctional Institution
prior to joining the Memphis Police Department. He indicated
his great interest in becoming a police officer, even though he
had to take a reduction in salary at the start in comparison to
what he was earning at Fort Pillow. He stated that he was a
member of the recruit class at the 36th Session at the Police
Training Academy in 1973. At that session Capt. Coletta was in
charge of firearms instruction but offered no guidance with
regard to when the use of lethal force would be appropriate.
The Legal Advisor did lecture his class on the laws and regu
lations governing the use of lethal force. Hymon's testimony as
to the circumstances surrounding the shooting death of Edward
Eugene Garner did not differ in any major regard from that given
in those portions of his deposition previously read into the
trial record. He did mark and initial on Exhibit 6 where he was
standing when he fired the fatal shot. He described his investi
gation of the scene after the shooting which confirmed his
earlier judgment that a burglary had been committed by Garner at
739 Vollentine. After the shooting, he was interrogated by the
Crime Scene and Homicide Squad of the Department, relieved of
duty with pay for a few days and then returned to duty. He
corroborated Hubbard's recollection that the Firearms Review
Board found his use of lethal force justified and that a "no bill"
was issued by a Shelby County grand jury convened to consider
whether criminal prosecuting was warranted by the circumstances
surrounding Garner's death. Exhibit 26, a photograph showing a
clothesline running across the backyard of 739 Vollentine was
19 -
12S
admitted into evidence.
Leslie B. Wright gave testimony similar to Hymon's as
to the circunstances surrounding their being dispatched to 739
Vollentine and proceeding to investigate whether a burglary was
in progress at that location. Wright's recollection with respect
to what occurred after he arrived at the scene differs markedly,
however, from Hymon's in several major respects. Wright stated
that he had just reached the northeast corner of the residence
at 739 Vollentine when he heard Hymon fire at Garner; Hymon
recalled that Wright was at the southeast corner and visible to
him when he fired. Wright recalls that Hymon indicated that
Garner was on the fence after the shot was fired, not before as
Hymon testified. It was Hymon who removed Garner's body from
the fence, though Hymon recalled that Wright assisted him in this
effort. He stated that it took Hymon about 3 - 4 seconds to
move from his position at the southwest corner of the house where
he was standing when he fired to Garner's body on the fence. And
he confirmed that the backyard at 739 Vollentine was dark and
contained various objects on the ground. He testified to having
called for an ambulance and for police officials after the shoot
ing, and seeing to it that the woman who reported the burglary
remained on the scene for questioning.
Velton J. Rogers, a probation officer from the Juvenile
Court, testified as to his familiarity with Edward Eugene Garner's
difficulties with the police. He merely corroborated Cleamtee
Garner's testimony in this connection. Contrary to Mr. Garner's
recollection that his other children had had no history of cri
minality, Mr. Rogers revealed that Larry Garner had in fact been
brought before juvenile authorities for fighting and truancy. Mr
Rogers recalled that after the incident involving Edward Garner's
taking of pennies that belonged to a neighbor, Mr. Garner expressefi
a desire to see his son placed in an institution for a brief
- 20 129
a
Findings of Fact
1. Edward Eugene Garner was 15 years old, about 5'4" tall,
between 85 and 100 lbs. in weight and of thin overall body
structure on October 3, 1974.
2. Defendant Elton Richard Hyrnon is 6'4" tall and was in good
physical condition on October 3, 1974.
3. Edward Eugene Garner was fleeing from the commission of a
first degree burglary when he was fatally wounded on October
3, 1974.
4. The backyard of 739 Vollentine was completely encircled by
fencing.
5. Defendant Hymon was so positioned that Garner could not have
escaped capture by fleeing to the southwest from the back
of 739 Vollentine.
6. Officer Leslie B. Wright was so positioned that Garner
could not have escaped capture by fleeing to the southeast
from the back of 739 Vollentine.
7. Garner's only possible avenue of escape was over a 6 foot
chain-link fence running east-west directly to the south of
the back of 739 Vollentine.
8. Garner was unarmed at the time he was shot.
9. Defendant Hymon was between 30-40 feet from the chain-link
fence when he observed Garner at the base of the fence.
10. The backyard area was illuminated by Hymen's flashlight beam,
from lights on in the residence at 739 Vollentine and from
a porchlight at 737 Vollentine.
11. Defendant Hymon yelled "Halt, Police" which caused Garner to
pause momentarily.
12. Garner began climbing the chain-link fence when defendant
Hymon was attempting to provide his partner, Wright, with
Garner's location.
22 - 13i
13. Defendant Hymon was separated from the main backyard area
of 739 Vollentine by a three-foot chichen-wire fence which
Hymon could have stepped over with ease.
14. When Garner began climbing the fence, defendant Hymon made
no attempt to run toward the fence to apprehend him, even
though he could have done so in 3-4 seconds, as he did after
the shooting. Instead, he fired his service revolver,
wounding Garner fatally in the head.
15. Defendant Hymon fatally wounded Garner with a 125 grain,
semi-jacketed hollow-point Remington bullet fired from a
Smith & Wesson .38 caliber revolver.
16. The Memphis Police Department did not provide defendant
Hymon with any instruction in non-lethal alternatives to
the use of lethal force in apprehending unarmed fleeing
felons.
17. Defendant Hymon was taught by the Memphis Police Department
to fire at the "center mass" of the body in using lethal
force to apprehend a fleeing felon, whether armed or unarmed.
18. The Memphis Police Department makes no effort, for budgetary
and time reasons among others, to train police officers to
shoot non-vital areas of the body when using lethal force
to apprehend unarmed fleeing felons.
19. Prior to 1970, the Memphis Police Department issued as
standard ammunition a 158 grain, roundnose Lubaloy (fully
jacketed) Winchester; between 1970 and 1972, the Department
issued a 110 grain, semi-jacketed, hollow-point Smith and
Wesson cartridge; and in 1972 the Department made another
change in ammunition to a 125 grain, semi-jacketed, hollow-
point Remington cartridge.
20. The Department's change from the 158 grain ultimately to
the 125 grain was prompted by its desire to find ammunition
that would deliver a blow of sufficient severity to cause
- 23 - 132
immediate incapacitation of an armed person in order to
protect the lives of officers and of third persons directly
threatened by such a person.
21. Because of its high velocity, which insures that it will
expend significant kinetic energy in the body upon impact,
its hollow point, which causes it to flatten easily upon
impact and its semi-jacketed construction, which causes it
to peel back upon impact, the 125 grain appeared to have the
wounding and "stopping power" qualities the Department was
seeking.
22. The 125 grain ammunition, though adopted with the thought
that it was needed by police officers to incapacitate armed
persons threatening their lives or the' lives of third parties,
was issued by the Department to line officers for use even
in the apprehension of unarmed fleeing felons.
^ The following articles on wound ballistics, with some indica
tion of their pertinent conclusions, are listed for the Court's
benefit:
Di Maio and Spitz, "Variations in Wounding Due to Unusual
firearms and Recently Available Ammunition" 17 J. For. Sci.
377 (1972)
The entrance wounds in the skin were identical to
those produced by the standard .38 Special round.
On reflecting the skin [of unautopsied bodies], the
Super Vel [hollow-point] entrance wounds in the tho
racic wall were seen to be at least 2 to 3 times the
diameter of those produced by the standard 158-grain
round nose bullet.■ This finding was unrelated as to
whether the bullet struck a rib. . . . The entrance
wounds from the hollow point bullets were larger and
more irregular than those caused by the soft point
bullets. The greater wounding ability of the hollow
point is apparently due to their tendency to mush
room on penetrating tissue. The jacket peels back
allowing the lead core to expand, at 385
Di Maio, Jones and Petty, "Ammunition for Police: A Comparison
of the Wounding Effects of Commercially Available Cartridges,"
1 J.P.S. & Admin. 269 (1973).
The hollow-point bullets lost more kinetic energy
and were generally superior to the solid nose
bullets, at 271
(continued)
- 24 - 133
Conclusions of Law
1. Jurisdiction of this Court over defendant Elton Richard
Hymon is established by 28 U.S.C. § 1343(3) and by 42 U.S.C.
§§ 1983 and 1988. Monroe v, Pape. 365 U.S. 167 (1961),
2. Jurisdiction of this Court over defendants Memphis Police
Department and the City of Memphis is established by 28
U.S.C. § 1331 and the Fourteenth Amendment. Gray v. Union
County Intermediate Education District. 520 F.2d 803 (9th
Cir. 1975); City of Highland Park y. Train, 519 F.2d 681
(7th Cir. 1975); Hanna v. Drobnick, 514 F.2d 393 (6th Cir.
1975) and Roane v. Callisburq Independent School District.
511 F.2d 633 (5th Cir. 1975).
3. Under Tennessee Code Annotated 40-808 and under regulations
of the Memphis Police Department (General Order 5-74, Febru
ary 5, 1974), lethal force may be used by police officers to
apprehend persons fleeing from the commission of certain
felonies. Reneau v. State. 70 Tenn. 720, 31 Am. Rep. 626
(1879); Love y. Bass. 145 Tenn. 522, 238 S.W. 94 (1921);
Cunningham v. Ellington. 323 F.Supp. 1072 (W.D, Tenn. 1971);
Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972).
4. Under Tennessee law, Tenn. Code Ann. 39-901, and under regu
lations of the Memphis Police Department, a police officer
5/ (continued)
Di Maio, Jones, Caruth, Anderson, Petty, "A Comparison of the
Wounding Effects of Commercially Ayailable Handyman Ammuni
tion Suitable for Police Use" FBI Law Enforcement Bulletin
(December, 1974) 3-8
Research in the field of wound ballistics during and
after World War II reyealed that the severity of a
wound is directly related to the amount of kinetic
energy lost by the bullet in the body. This means
that the greater the loss of kinetic energy, the
greater the damage to the tissues, therefore, the
more severe the wound. at 3
Cowgill, "The Newest Look at Handgun Ballistics," The American
Rifleman, (Oct. 1975) 38-41 (discussion of Law Enforcement
Assistance Act [LEAA] study of Relative Incapacitation Indices
of Ammunition). - - - 134
«SH2
may use lethal force to apprehend a person fleeing from the
commission of burglary in the first degree.
5. Under Tennessee law and under regulations of the Memphis Polic
Department, lethal force may be resorted to in order to appre
hend a person fleeing from the commission of a bruglary in
the first degree "only after all other reasonable means to
^PP^®hsnd . . . have been exhausted." Reneau, supra;
Scarborough v. State. 76 S.W, 2d 106 (1934); Cunningham, supra
and Beech, supra.
6. Resort to lethal force by a police officer to apprehend a
person fleeing from the commission of a felony without ex
hausting available non-lethal means of apprehension violates
strictures against the use of excessive force under the
Constitution and laws of the United States. Screws v. United
States, 325 U.S. 91 (1941); Monroe v. Pape, supra; Jenlcins v .
Averett, 424 F.2d 1228 (4th Cir. 1970); Jackson v. Martin.
F.Supp . 902 (N.D. Miss. 1966). Such conduct must "shock
the conscience of the court," Rochin v. California. 342 U.S.
165 (1952); Rosenberg v. Martin, 478 F.2d 520 (2d Cir.)
cert.denied. 414 U.S. 872 (1973); Johnson v. click. 481 F.2d
1028 (2d Cir.) cert.denied. 414 U.S. 1033 (1973).
' Defendant Hymon violated the law of Tennessee and regulations
of the Memphis Police Department in resorting to lethal force
to apprehend unarmed Edward Eugene Garner without attempting
to exhaust a non-lethal alternative reasonably available to
him such as running after him.
8. Defendant Hymon violated the Constitution and laws of the
United States in resorting to lethal force to apprehend un
armed Edward Eugene Garner without attempting to exhaust a
nofi-isthal alternative reasonably available to him such as
running after him.
- 26 - 135
LI
LO
9. The City of Memphis is required under Tennessee law to indemni--
fy defendant Hymon for any liability he incurs by award of
•this Court for his negligent conduct in the shooting death
of Edward Eugene Garner. TCA 6-640. Liability of the City
of Memphis is also warranted under respondeat superior doctrine
Williams v. Brown. 398 F.Supp. 155, 160-61 (N.D. 111. 1975).
In failing to train defendant Hymon in non—lethal techniques
for apprehending unarmed fleeing felons, the defendants City
of Memphis and the Memphis Police Department made inevitable
Hymon's resort to excessive force to apprehend Edward Eugene
Garner. Their failure in this regard constituted violations
of both Tennessee State and Federal Constitutions and laws.
City of Kenosha v. Bruno. 412 U.S. 507 (1973); Foster v. City
of Detroit, 405 F.2d 138 (6th Cir. 1968).
In issuing to defendant Hymon the 125 grain, semi-jac)<eted,
hollow-point Remington, the City of Memphis and the Memphis
Police Department insured that defendant Hymon would use
ammunition which, by definition, constituted excessive force
in the context of apprehending an unarmed fleeing felon: the
bullet was adopted because of its ability to incapacitate
immediately armed persons posing a direct threat to the lives
of police officers or of third persons. The conduct of the
City of Memphis and of the Memphis Police Department in this
regard condoned and urged violation of federal constitutional
strictures against excessive force sufficient to "shoc]< the
conscience of the court." Rochin, supra; Rosenberg, supra;
Johnson v. Glick. supra; Paust, "Constitutional Prohibition
of Cruel, Inhumane or Unnecessary Death, Injury or Suffering
During Law Enforcement Process," 2 Hastings Const. L.G. 873
(1975).
12, Semi-jacketed, hollow-point bullets are of a type banned from
27 -
13G
!■ ̂
use in international warfare by the Hague Declaration of
1899 [(Schindler, The Laws of Armed Conflict, 103 (1973)]
because of their tendency to inflict unnecessarily cruel
wounds. This Declaration provides a standard for determining
what constitutes civilized conduct in domestic matters as
well as in international relations. Paust, "Human Rights
and the Ninth Amendment: A New Form of Guarantee," 60 Cornell
Rev. 231 (1975).
Respectfully submitted.
JACK G R E E N B E R G Q
CHARLES STEPHEN RALSTON
DREW S. DAYS, III
10 Columbus Circle
Suite 2030
New York, New York 10019
WALTER L. BAILEY, JR.
D'ARMY BAILEY
Suite 901, Tenoke Building
151 Jefferson Avenue
Memphis, Tennessee 38103
Attorneys for Plaintiff
- 28 - 13;'
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; IVYETH
CHANDLER, Mayor of Memphis; JAY
W. HUBBARD, Director of Police
of Memphis; and E. R. HYMON,
Police Officer of the City of
Memphis,
Defendants.
CIVIL ACTION
NO. C-75-145
DEFENDANTS' PROPOSED FINDINGS OF FACT
AND
CONCLUSIONS
FINDINGS OF FACT
1. On the evening of October 3, 1974, Edward Eugene
Garner broke into the Anderson home at 739 Vollintine, Memphis,
Tennessee, for the purpose of commiting larceny.
2. A telephone call was placed to the Memphis Police
Department from the home of Daisey Bell Statts, 737 Vollintine,
advising that someone had broken into the house next door.
Although the Statts house was not the one being broken into, the
address of 737 Vollintine was given to the police.
3. A call went out by radio over the police network to
the police car in Ward 128 that v/as manned by Defendant Hymon and
Patrolm.an Leslie Wright directing them to proceed to 737 Vollintine
where there was a prowler inside.
4. Upon arriving at 737 Vollintine, the officers saw
Daisey Bell Statts standing on her porch pointing to the house
next door which v/as 739 Vollintine. Defendant Hymon got out of
138
the car to question Ms. Statts about the situation and she said,
"They are breaking in inside".
5. Defendant Hyition returned to the car, got his flash
light, advised his partner what was happening, and then proceeded
south along the west side of the house at 739 Vollintine.
6. Patrolman VJright then moved the squad car to the
curb, called the dispatcher to advise they were on the scene,
picked up his flashlight, and moved toward the east side of the
house.
7. Defendant H^Tnon was aware that tliere was a light on
in the house as he proceeded down the west side to the rear.
8. As Defendant Hymon approached the southwest corner
of the house he heard the back screen door slam and as he got to
a point just beyond the corner of the house he saw a figure running
from the back of the house to the back of the lot where a six (6)
foot cyclone fence stretched across the south boundary of the
property.
9. There was a three to four (3 to 4) foot chicken wire
fence which ran in a north to south direction along the west side
of the back yard and was situated between Defendant Hymon and the
cyclone fence.
10. As Defendant Hymon was standing at a point near
the southwest corner of the house he observed that a garbage can
was placed under a window on the back side of the house and the
glass was broken out of the window.
11. Defendant Hymon then shined his flashlight along
the fence and spotted a person who later turned out to be Edward
Eugene Garner in a stooped position next to the cyclone fence near
the southwest corner of an outbuilding located in the southeast
corner of the yard.
12. Defendant Hymon shouted "halt" and Garner paused
momentarily and then as Defendant Hymon _took two steps in his
2 - 139
direction and toward the chicken wire fence Garner began to spring
over the cyclone fence and had gotten half of his body over the
fence when Hymon fired his service revolver hitting Garner in the
right side of the head.
13. Patrolman Wright who had proceeded along a pickett
fence in the front of the house on the east side heard Defendant
Hymon yell "halt" in a loud voice, following which there was a
pause and then as he approached the northeast corner of the house
he heard a shot.
14. When Patrolman Wright reached the southwest corner
of the house. Defendant Hymon said, "He's over there on the fence"
at which time Wright flashed his flashlight along the fence until
he picked up Garner whose body was draped on the fence, the top
half over the south side and the lower half on the north side.
15. An ambulance was called and the body was removed
from the fence at which time Garner was neither moving nor speaking.
16. Garner was transported to the hospital where he
expired shortly after his arrival.
17. It was determined that after breaking into the
house. Garner ransacked the bedrooms and removed a ring and wallet
containing $10.00 in cash.
18. The cyclone fence at the back boundary of the lot
where Garner was shot was six (6) feet tall.
19. The distance from Defendant Hymon to Garner at the
time of the shooting was approximately thirty-five to thirty-seven
(35 - 37) feet.
20. Although Defendant Hymon did not see a weapon of
any kind on Garner up to the time of the shooting he was not
positive that Garner was unarmed as he could not tell if he had a
weapon on his person.
140
3 -
21. There was a concrete block and a board about a
foot from the fence w’hich Garner used to climb on the fence.
22. Defendant Hymon could not have apprehended Garner
on foot before he climbed the fence nor did Hymon believe in his
own mind that he could have caught Garner once he climbed over
the fence.
23. Plaintiff's expert witness Eugene Barksdale
testified that in apprehending a fleeing felon, if in the officer's
own mind the person is about to escape and there is no other wav
to catch him, then he is justified in using lethal force.
24. Captain John Coletta, who qualifies as an expert
in the use of firearms as well as when lethal force should be
used, testified that in his opinion Hymon was justified in using
his weapon to apprehend Garner under the circumstances.
25. Less than two months prior to October 3, 1974,
Edward Eugene Garner was placed on probation by the Juvenile Court
in Memphis in connection with an adjudication of Juvenile Delinquency
stemming from a charge of Burglary in the Second Degree.
26. On August 26, 1974, when Edward Eugene Garner was
placed on probation on a charge of Burglary in the Second Degree,
his father indicated to the probation officer that it might be
better if his son was sent to a correctional institution.
27. Edward Eugene Garner was placed on probation by
Juvenile Court on November 1, 1971, in connection with a charge
of Burglary in the Third Degree.
28. Edward Eugene Garner was charged with violation
of curfew by the Juvenile Court which matter was adjusted non
judicially and Garner was released to his mother.
29. A.t the time of his death, the alcohol content in
the blood of Edward Eugene Garner was .09 which is just under
•10, the standard established by State Law which creates a presump
tion that one is acting under the influence of an intoxicant.
- 4 14i
30. When Defendant Hymon yelled, "halt". Garner looked
in his direction and could see that he was being confronted by a
police officer, especially in view of the fact that there was a
porch light turned on next door at 737 Vollintine which illuminated
Defendant Hymon.
31. Defendant Hymon at the time he was attempting to
apprehend Garner could not be certain whether there was an accomplice
in the house.
32. The area by the cyclone fence in the back of the
house and the area south of the fence was very dark at the time
Defendant Hymon was trying to apprehend Garner.
33. The General Order published by the Memphis Police
Department on February 5, 1974, in connection with the "Use of
Firearms and Deadly Force" which was in effect on October 3, 1974,
is more restrictive than TCA 40-808, the Tennessee Statute which
deals with means by which a fleeing felon may be apprehended.
34. The training methods used and the subject matter
taught at the Memphis Police Department Training Academy and in
particular in the area of the use of firearms and deadly force,
are consistent with those used by other police departments
throughout the country and the FBI Academy.
IT). Blood was found on both sides of the cyclone fence
following the shooting.
36. There is nothing in the record to indicate that
Defendant Hymon had any propensity toward the precipitous and
reckless use of firearms.
37. After a full investigation of the incident of
October 3, 1974, and a review of same by the Firearm's Review Board,
no disciplinary action was taken against Hymon.
38. The shooting of Garner by Hymon was presented to
the Shelby County Grand Jury and a No—True Bill was returned.
-j
- 5 -
142
39. Defendant Hymon was a graduate of the 36th Session
of the Memphis Police Academy.
40. The Memphis Police Department decided to make a
study of various types of ammunition following complaints by
officers that the round nose ammunition they were issued was not
effective in stopping or neutralizing individuals with whom they
were confronted in dangerous situations.
41. Numerous tests were run by the firearms' section
of the Memphis Police Department under the auspicies of Captain
John Coletta and he recommended a change to a hollow point projec
tile for the reasons that it would be more effective in neutralizing
an individual and it was less likely to penetrate the individual
and continue in flight and do harm to innocent people and property.
42. During the term of Director Jay Hubbard, the Memphis
Police Department after careful study and consideration, switched
to hollow point ammunition, to-wit: .38 Special Caliber Remington
125 Grain semi-jacketed hollow point.
43. Hollow point ammunition is used by other police
departments throughout the United States as v;ell as the FBI.
44. The key factor in the injury producing effect of
bullets is not whether they are hollow point or round nose but
the part of the body they strike.
45. Medical authorities have concluded that hollow point
ammunition produces no more injuries than round nose ammunition.
CONCLUSIONS
1. Defendant Hymon was justified in using his weapon to
apprehend Edward Eugene Garner as this was the only reasonable
and practicable means of taking a felon or preventing his escape.
(a) TCA 40-808 provides that "if, after notice
of the intention to arrest the defendant,'he either
flee or forcibly resist, the officer m£iy use all the
necessary means to effect the arrest".
(b) At the time in question. Officer Hymon
commanded Garner to "halt".
(c) Garner was guilty of commiting Burglary in
the First Degree, to-wit: breaking and entering a
dwelling place in the nighttime with intent to commit
a felony, TCA 39-901.
(d) Garner was aware that he was being commanded
to halt by a police officer because he was within hear
ing range of the officer and the back porch light had
been turned on at 737 Vollintine which served to illu
minate the officer and the fact that he had a gun in
his hand.
(e) After having been told to halt and knowing
that he was confronted by a police officer. Garner
recklessly and heedlessly attempted to vault over
the fence, thereby assuming the risk of being fired
upon.
(f) In burglarizing a private home and attempting
to flee. Garner knowingly and wilfully placed himself
in a precariou.s position and should have kno\\m that
firearms might be used.
(g) Under the circumstances Garner was directly
and proximately contributing to his own injury and
death, taking into account all factors present.
(h) At the time of the shooting incident. Garner
was on probation in connection with a previous burglary
charge, and had been drinking to the extent that he
bordered on being under the influence of an intoxicant.
(i) Defendant Hymon was satisfied in his own
mind and justified in thinking that once Garner scaled
14 4
- 7 -
J
the fence, he would have been unable to apprehend him,
because (1) Garner was already half way over the fence
before Hymon could get over the chicken wire fence
separating him from the back yard; (2) Garner was some
35 to 37 feet away from Hymon when Garner started to scale
the fence; (3) Hymon was not fast enough on foot to
catch him under the circumstances; (4) It was very
dark by the fence and beyond to the south; (5) There
was tall grass and brush in the area behind the fence;
(6) Hymon would have to negotiate his way through a
cluttered back yard to get into position to try to
climb over the cyclone fence; (7) With all of his
equipment and paraphernalia it would have been hard
for him to climb the fence with any speed; and (8)
Due to the fact that Hymon was advised by Ms. Statts
upon arriving at the scene that "They are breaking
in inside", he could not be certain whether there
was an accomplice inside the house who might be armed
and come out of the house shooting.
(j) Neither Hymon nor his partner could reasonably
expect to catch Garner on foot before or after he scaled
the back fence.
(k) The officers were totally unfamiliar with the
area and in parcicular that area behind and to the south
of the cyclone fence.
(l) Garner was familiar with the neighborhood
since he lived on Tully which was nearby.
(m) Although Hymon saw no weapon, he could not be
absolutely certain that Garner was unarmed since he
could have had a weapon on his person, nor could he be
certain whether there was a weapon available to Garner
on the other side of the fence.
(n) Because of the darkness and the fact that every
thing happened so fast Hymon could not ascertain the age
- 8 - 145
or size of Garner to the extent of determining that he
was in fact a juvenile.
(o) There was very little opportunity of identifi
cation of Garner for purposes of future arrest if he
escaped.
(p) Even if Hymon knew Garner was a juvenile, he
would have been justified in using deadly force where
no other reasonable and practicable means were available
to apprehend him.
(q) While it was apparent to Hymon that the house
had been broken into, he could not be certain whether
the crime was being perpetrated against property or a
person.
2. The training program of the Mem.phis Police Department
which incorporates methods, practices and procedures used by other
police departments throughout the country and principles taught
at the FBI Academy was more than adequate.
3. The policies of the Memphis Police Department which
authorize the use of firearms to apprehend fleeing felons come
within the ambit of the Tennessee Statute (TCA 40-808). Further
more, the General Order dated February 5, 1974, and which was in
effect on October 3, 1974, dealing with the subject of the "Use
of Firearms and Deadly Force" is more restrictive than the State
Statute.
4. The use of hollow point bullets does not assure
that a person shot will be grievously wounded or killed instantly
anymore than one shot with round nose ammunition. The part of the
body hit is more determinative of the resulting injury than the
type of ammunition used.
(a) In the instant case, the type of ammunition
used would have little bearing on the subject, since
- 9 -
14 n
J
in all probability, a shot to the head would
result in death regardless of whether the
bullet was hollow point or round nose.
Henry L. Klein, Staff Attorney
City of Memphis
Attorney for Defendants
100 North Main Building - 3500
Memphis, Tennessee 38103
CERTIFICATE OF SERVICE
I, Henry L. Klein, Staff Attorney for the City of Memphis,
hereby certify that a copy of the foregoing Defendants' Proposed
Findings of Fact and Conclusions has been mailed to Mr. Walter Lee
Bailey, Jr., Attorney at Law, Suite 901, Tenoke Building, 161
Jefferson Avenue, Memphis, Tennessee 38103, and to Mr. Drev7 S. Days, III
Attorney at Law, 10 Columbus Circle, New York, New York 10019, via
United States Mail, postage prepaid, this 23rd day of August, 1976.
Henry L. Klein
10
o
IN THE UNITED STATES DISTRICT COURT FOR IHE
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CLEAMTEE GARIffiR, father and next of kin
of Edvrard Eugene Garner, a deceased minor
vs.
MEMPHIS POLICE DEPARDIENT, et al
C-75-l̂ 5̂
'S'vNf'--
ORDER ON MOTIONS FOR DIRECTED VERDICT
This case came on for trial August 2, 1976, and at the
conclusion of the Plaintiff's proof on August Ij-, 1976, motions were
made for directed verdict in behalf of defendants Mayor Wyeth Chandler
and Jay Hubbard.
For good caixse shown it is hereby Ordered and Adjudged
that the motions be and are hereby granted and the case dismissed
as to Mayor Wyeth Chandler and Jay Hubbard.
mam
0 n
arnCMENT o n OECISiON b y t h e c o u r t
§>tatss Bistrirt. Cuitri
F O R T H E
________WESTERN niST?.iCT OF te ::::essee
CIV 32 (7-63)
WESTERN DIVISION
31'ianCet? Garner
Mempnis ?o lice Departmenc, et a l
C iv il ACTION f i l e No . > 7 5 -14 5
JUDGMENT
This action came on for trial (bearii^ ) before the Court, Honorable Earry V e il ford
, United States District Judge, presiding, and the issues having been duly tried
(tean i) and a decision having been duly rendered.
It is Ordered and Adjudged Chat the motions fo r d irected verd ic t in beh a lf o f
defendants Mayor Vlyeth Chandler and Jay Hubbard be and are hereby granted and the
case dism issed as to these defendants.
APPROVED AS TO FORM:
0
I United '^taCes D is t r ic t Judge^^
• V \
C -w r* .S.' • "i I
Dated at ,
of , 1 9 , ^ .
, this day
14ci
9: >
MEMPHIS POLICE DEPARTMENT,
et al..
Defendants.
MEMORANDUM OPINION
This is a civil rights action filed in April, 1975,
by Cleamtee Garner to recover for the shooting death of his
son, Edward Eugene Garner, on October 3, 1974. Named as
defendants were the Memphis Police Department, the City of
Memphis, Tennessee; Wyeth Chandler, Mayor of Memphis; and E. R.
Hymon, Police Officer of the City of Memphis. Defendant Hymon
was sued for having fired the shot that caused Garner's death;
the other defendants were sued on the grounds that their
failxore to exercise due care in the hiring, training and
supervision of defendant Hymon made them responsible for
Amendment right to due process of law, the Sixth Amendment right
to a jury trial and the Eighth Amendment right to be spared
cruel and unusual punishment, all such rights incorporated into
the due process clause of the Fourteenth Amendment and made
applicable to the States. 42 U.S.C. §§ 1981, 1983, 1985, 1985
and 1988 were also alleged to have been violated in respect to
the cause of action asserted. A pendent claim against the same
defendants under the Tennessee Constitution and laws was also
alleged with respect to violation of rights and duties created
1/
by Tenn. Code Ann. § 40-808.
By order of August 18, 1975, this Court ruled that
no cause of action could lie against the Memphis Police
Department, or the City of Memphis under 42 U.S.C. § 1983 and
28 U.S.C. § 1343(3) since they were not "persons" within the
meaning of that statute. City of Kenosha v. Bruno, 412 U.S. 507
(1973) and Monroe v. Pape, 365 U.S. 167 (1951). Jurisdiction of
the Court over these defendants was found to have been invoked,
however, under 28 U.S.C. § 1331. Bivens v. Six Unknown Named
Agents. 403 U.S. 388 (1971).
FINDINGS OF FACT
1. On the evening of October 3, 1974, Edward Eugene
Garner broke into the Lidell Anderson home at 739 Vollintine,
Memphis, Tennessee, for the purpose of committing a robbery.
Daisey Bell Statts, 737 Vollintine, a next door neighbor,
observed evidence of a break-in and called police. Although
the Statts house was not the one being burglarized, the address
of 737 Vollintine was given to the police. The police car in
U § 40-808. "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."
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nearby Ward 128 manned by defendant Hymon and Patrolman Leslie
Wright was directed to proceed to 737 Vollintine on the prowler
call. Upon arriving at 737 Vollintine, the Memphis Police
officers saw Statts standing on her porch pointing to the house
next door. Defendant Hymon questioned her about the situation
and was advised of the next door break-in; in fact, Mrs. Statts
said, "they are breaking in" (emphasis added). Hymon then
returned to the squad car, grabbed his flashlight, advised his
partner what was happening, and then proceeded south along the
west side of the house at 739 Vollintine, which faced north.
2. Patrolman Wright then moved the squad car to the
curb, called the Police dispatcher to advise they were on the
scene, picked up his flashlight, and moved toward the east side
of the house. Hymon became aware that there was a light on
inside the house as he proceeded down the west side towards the
rear. As he approached the southwest corner of the house
Hymon heard the back screen door slam and reaching the corner
of the Anderson house, he saw a figure running from the back of
the house to the back of the lot where a cyclone fence extended
across the south boundary of the property. The backyard of
739 Vollintine was completely encircled by fencing.
3. There was a three to four foot chicken wire fence
supported by boards which ran in a north to south direction
along the west side of the backyard and was situated between
Hymon and the cyclone fence, which appeared to Hymon in the
2/darkness to be approximately six or seven feet high. As
defendant Hymon was standing at a point near the southwest
corner of the'house he could also observe that a garbage can
had been placed under a window on the back side of the house
Actual height was about 6 feet high with pointed wire
extending across the top.
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- 3 -
and the glass was broken out of the window in the rear; he could
also make out a clothesline and the outline of objects in the
backyard between him and the fleeing siobject. Defendant Hymon
shined his flashlight along the fence and spotted Edward Eugene
Garner in a stooped position next to the cyclone fence near the
southwest corner of an outbuilding located in the southeast
corner of the yard some thirty to forth feet away. He did not
appear to be armed, but Hymon could not be certain of this at
the moment.
4. Defendant Hymon immediately shouted "halt" and
identified himself; Garner paused momentarily and then as
defendant Hymon started in his direction and toward the chicken
wire fence. Garner sprang to the top of the cyclone fence
extending half of his body and his head over the fence when
Hymon fired his service revolver hitting Garner in the right
side of the head. The area to the south beyond the fence was
in darkness and there was poor illumination in the Anderson
backyard. Hymon was not familiar with this particular
location or neighborhood, having lost his way in proceeding
to the site.
5. Patrolman Wright, in the meantime, had proceeded
along a picket fence on the other side of the house and heard
defendant Hymon yell "halt" in a loud voice, following which
there was a pause. As Patrolman Wright approached the south
east corner of the house, he heard a shot; defendant Hymon then
called for assistance, at which time Wright also flashed his
flashlight along the fence until he picked up Garner whose
body was then draped on the fence, the top over the southside and
the lower half on the nort still on the Anderson side. Wright
apparently cLd not hear Hymon's earlier instruction to get Garner
-4 - 153
t ;
when he had first located him with his flashlight as Garner
paused. An ambulance was called and Garner's body was removed
from the fence mortally wounded. Garner was transported to the
hospital where he expired shortly after his arrival, having
never fully gained consciousness after being shot by Hymon.
Garner was unarmed at the time he was shot.
6. It was later determined that after breaking into
the Anderson house. Garner ransacked the bedrooms and removed
a ring and wallet containing a small aimount of cash.
7. Less than two months prior to October 3, 1974,
young Garner, then only 15 years old, was placed on probation
by the Juvenile Court in Memphis in connection with an
adjudication of Juvenile Delinquency stemming from a charge of
burglary which his parents had investigated and reported.
Previously, Garner was placed on probation by Juvenile Court
on November 1, 1971, in connection with a lesser charge of
burglary, and he had also been charged with violation of curfew
set by the Juvenile Court. Mr. Garner, the plaintiff, admitted
that his son, Eugene, was somewhat a problem for him, particularly
since he worked at night.
At the time of his death, the alcohol content in the
blood of Edward Eugene Garner was .09 which is just under the
standard for adults established by Tennessee Law of a presumption
and received a B.S. degree in English from Tennessee State
College, participated in athletics, worked in the Tennessee
prison system, and is 6'4" tall. As a part of his police
training, after joining the Memphis Police Department in 1973,
he was given instruction in physical combat — use of night
stick and judo — and required to do physical conditioning.
9. Defendant Hymon at the time he was attempting to
apprehend Garner could not be certain whether there was an
accomplice in the house, or in the area, and whether the
accomplice might be armed. The area by the cyclone fence in
the back of the yard was not illuminated, and the area south
of the fence was very dark at the time defendant Hymon was
trying to apprehend Garner. He could detect only traces of
tall underbrush and trees on the other side of the cyclone
fence. He did not know the lay of the land in this area which
was only a few blocks from the Garner home.
10. After a full investigation of the incident of
October 3, 1974, and a review of same by the Memphis Police
Firearm's Review Board, no disciplinary action was taken against
Hymon, nor was any action taken by the Shelby County Grand jury
although the matter was presented ot it. There is nothing in
the record to indicate that defendant Hymon had any propensity
toward precipitous or reckless use of firearms as a police
officer or otherwise.
11. The training methods used and the subject matter
taught at the Memphis Police Department Training Academy in
the area of the use of firearms and deadly force, are generally
consistent with those used by other police departments and the
FBI Academy. Memphis Police instructors received training at
the FBI Academy. They taught police to fire at the largest
O ? - 6 - 155
target present, usually the trunk or torso area, the "center
mass". Police were given instruction also by legal advisors
on the Tennessee law with respect to the use of lethal force.
Regulations published by the Memphis Police Department
in connection with the "Use of Firearms and Deadly Force"
effective at the time were somewhat more restrictive than
TCA 40-808, which deals with lawful means by which a fleeing
felon may be apprehended. A three judge court has ruled this
statute constitutional. Cunningham v. Ellington. 323 F.Supp.
1072 (W.D. Tenn. 1971). See Beech v. Melancon. 465 F.2d 425
(6th Cir. 1972).
12. Prior to this tragic incident, the Memphis Police
Department decided to make a study of various types of ammunition
following complaints by officers that the "round noee" type
ammunition they were issued for their service revolvers was not
sufficiently effective in stopping or neutralizing individuals
with whom they were confronted in dangerous situations. This
followed an episode in which a police officer was killed (and
a Federal Probation Officer wounded) by an apparently beserk
man firing at random at others. Tests were conducted by the
Firearms' Section of the Memphis Police Department under the
auspicies of Captain John Coletta who recommended a change to a
"hollow point" projectile or bullet as more effective in
"neutralizing" or incapacitating an individual and less likely
to penetrate through a target and thus continue in flight to the
possible harm of others.
During the term of Police Director Hubbard, the
Memphis Police Department thereafter, following consideration
of the Coletta recommendation, changed to use of "hollow point"
ammunition, specifically .38 Special Caliber Remington 125 Grain
2 H
- 1 - 156
semi-jacketed hollow point. Hubbard also established a
Firearms Review Board to investigate instances wherein police
employed a firearm.
13. "Hollow point" ammunition is used by many other
police departments throughout the United States and by the FBI,
although it is more lethal in its effect. A key factor in the
injury producing effect of a bullet is the part of the body they
strike, the point of entry. The particular type of ammunition
used by the Memphis Police had a greater wound producing
potential with greater velocity than was formerly utilized, and
was more accurate. "Hollow point" ammunition produces more
injury than round nose ammunition, all other factors being
equal, but State and Local medical examiner and County
Coroner Francisco could not state that the type of ammunition
used in this particular episode would have made any difference
in bringing about Garner's death in light of the place where
the bullet struck and the point of entry.
14. Various persons with police experience were
permitted to testify as to whether or not under assumed
circumstances it was, or not, reasonable for Hymon to fire his
pistol at the fleeing Gamer. The substance of such testimony
was to the effect that Hymon should first have exhausted
reasonable alternatives such as giving chase and determining
whether he had a reasonable opportunity to apprehend him in some
other fashion before firing his weapon. A training film was
shown in evidence which was used in training Memphis Police
Officers, such as Hymon, as to circumstances in which lethal
force might properly be used.
15. There was no evidence introduced tending to
indicate any personal involvement whatsoever by Director Hubbard
-8- 15
or Mayor Chandler in the episode in controversy; or in any
failure on their part with respect to police hiring procedures
regarding the employment of Hymon as a police officer.. There
was evidence to the effect that Hymon was, prior to this episode,
a competent police officer, indeed, that he was the type person
who was a desirable police recruit by reason of his education,
background, ability and his race. There was no evidence
indicating insufficient or inadequate police hiring methods or
standards.
CONCLUSIONS
I. Since plaintiff failed to present any significant
evidence bearing upon the personal liability of defendants
Hubbard and Chandler, they were entitled to be dismissed at the
end of plaintiff's case in chief.
II. Since plaintiff failed to present any significant
evidence as to deficient hiring procedures, claims in that
respect as to the City of Memphis and its Police Department
should be dismissed.
III. Jurisdiction of this Court over defendant Hymon
is established by 28 U.S.C. § 1343(3) and by 42 U.S.C. §§ 1983
and 1988. Monroe v. Pape, 365 U.S. 157 (1951). Jurisdiction
of this Court over defendants Memphis Police Department and the
City of Memphis is established by 28 U.S.C. § 1331 and the
Fourteenth Amendment.
IV. Under TCA 40-808 and under regulations of the
.Memphis Police Department issued thereunder lethal force may
be used by police officers to apprehend persons fleeing from the
commission of certain felonies. Reneau v. State, 70 Tenn. 720,
^ There have been previous civil rights cases filed in this Court
by the law firms representing this plaintiff charging the City of
Memphis and its Police Department with failure to hire enough black
police officers and charging police bias towards blacks.
3 0 153
-9-
31 Am. Rep. 626 (1879) Love v . Bass, 145 Tenn. 522, 238 S.W.
94 (1921); Cunningham v. Ellington, supra; Beech v. Melancon.
supra. Burglary of a residence is one of the felonies covered
under this statute and under Tennessee law, TCA 39-901. Lethal
force may he resorted to in order to apprehend a person fleeing
from the commission of a burglary such as that in which deceased
Garner was involved, "only after all other reasonable means to
apprehend ... have been exhausted." Reneau. supra; Scarborough
V. State, 76 S.W. 2d 106 (1934); Cunningham, supra; and Beech.
supra.
V. The real and principal issue in this case, then,
is whether defendant Hymon was justified in using his weapon to
apprehend Edward Eugene Garner as the only reasonable and
practicable means of apprehending him or preventing his escape.
Garner was clearly a felon and Hymon could not be sure that he
was only a juvenile. After having been ordered to halt and
knowing that he was confronted by a police officer. Garner
recklessly and heedlessly attempted to vault over the fence to
escape, thereby assuming the risk of being fired upon. Under
the circumstances Garner was knowingly,directly and proximately
contributing to his own injury and death, taking into account
all factors present. There was very little opportunity of
identification of Garner for purposes of future arrest if he
escaped.
VI. Hymon realized there v;ere several obstacles
between him and Garner at the moment Garner made what evolved
into a fatal effort to scale the chain link fence. He was
uncertain about the time required for him to reach the area
from which Garner made his desperate leap, and he was reasonably
concerned about the remote prospects of locating Garner once he
31 -10-
disappeared into the brush and undergrowth out in the reaches
of darkness and in an area unfamiliar and unknown to Hymon.
Hymon (and his partner), up until the moment of firing,
had followed good police procedures in investigating an apparent
burglary in progress by a person or persons unknown, who may or
may not have been armed. In a split second, Hymon was called
upon to make a fateful and difficult decision in the face of what
reasonably appeared to be a successful effort to flee from
arrest or apprehension from a felony scene. Hymon did not know
whether Gamer had committed only a so-called "property crime"
or whether persons in the home which he had forceably entered
might be or have been endangered. The Court concludes that
Hymon was justified in thinking that once Garner scaled that
fence, he would escape and that he, therefore, acted in
compliance with lawful requirements in the use of potentially
lethal force to prevent the escape of a fleeing felon. See
Beech v. Melancon, supra. There was no reasonable alternative
apparent if he were to prevent the escape or to effect the
arrest.
VII. One particularly difficult aspect of this case
was the age and size of young Garner. Hymon was called upon in
making a reasonable decision to weigh the factor, together with
the potentiality of inflicting a fatal wound,in making an
arrest, in preventing an escape, under these circumstances.
This factor, together with the eventual (but not then realized)
fact that Garner was unarmed, made Hymon's decision to fire both
difficult and agonizing. The Court has taken these considerations
into account in concluding, nevertheless, that Hymon acted
within his responsibility as a reasonable police officer. He
-11-
32 IGU
He certainly acted without any malice, predisposition, or
racial animus towards Garner. He also acted within general
guidelines afforded him as a Memphis Policeman, and the policy
has been one essentially established by the Tennessee legislature,
which has been determined to be a constitutionally acceptable
one.
VIII. The policies of the Memphis Police Department
which authorize the use of firearms to apprehend fleeing felons
come within the general ambit of the Tennessee statute (TCA
40-808). The training program of the Memphis Police Department
which incorporates some of the methods, practices and procedures
used by other police departments was at least adequate in
respect to apprehension of resisting or fleeing felons. The
City of Memphis and the Memphis Police Department are not liable
to plaintiff on this basis asserted.
IX. The choice by the Memphis Police Department to
utilize the particular type of ammunition for service revolvers
at the time in question was undertaken after consideration and
study. There were plausible reasons for its conclusion that a
more effective type might be utilized for the protection of the
police officers and in the general welfare, even though there
was involved a greater potential for serious injury, severe
wounding, or even death to an intended target in connection
with its use. Perhaps a different type ammunition with less
"wound producing potential", as Dr. Francisco described it,
would be preferable if this Court were called upon to make this
decision; but this is not the issue to be decided. Plaintiff's
counsel concedes in his memorandum and proposed conclusions that
the Court must rather determine whether the Memphis Police
Department's decision to utilize the "hollow point" bullet with
- 1 2 -
I G i
a high velocity is such conduct as to "shock the conscience
of the Court", citing Rochin v. California, 343 U.S. 165 (1952),
the "stomach pumping" case. Interestingly, Justice Douglas, a
renowned civil libertarian, in a concurring opinion observed
"Yet the Court now say s the rule that a
majority of states have fashioned (to
admit such evidence of narcotics pumped
from the stomach) violates the 'decencies
of civilized conduct' to that I cannot
agree." 432 U.S. 178. (See also the
concurring opinion of Justice Black).
The other two cases cited by plaintiff in support of
his contention in this respect appear inapposite as pertaining
5/
only to police mistreatment of a prisoner in custody. The
Memphis Police Department's conduct in selecting ammunition
in question does not violate standards of civilized conduct so
as to shock the conscience of the Court; it is similar to
policies in use and established by many other jurisdictions
and was not adopted merely for purposes of inflicting excessive
punishment or denying due process. Rather, it was
considered action with a policy toward minimizing hazards to
the police and to citizens in situations of resisting or
fleeing felons subject to lawful apprehension, or in situations
were the life or safety of a policy officer or an assaulted
citizen might even be at stake.
X. In this case, moreover, plaintiff has not shown
a proximate and direct relationship between the police choice
as to type of ammunition used and the particular effect on
See plaintiff's proposed conclusion No. 6, citing
Rosenberg v. Martin, 478 F.2d 520 (2nd Cir. 1972) and Johnson
V . Click, 481 F.2d 1028 (2nd Cir. 1973).
6/ This conclusion is reached even if the Hague Declaration
of 1899 may imply a contrary standard.
-13- 1G2
wounding would have produced death in any event no matter
which type of hullet was used. At least plaintiff failed in
his burden to demonstrate otherwise.
XI. For the reasons indicated, judgment must be
rendered for all defendants.
This / day of September, 1975.
UNITED^^^^T^ES DISTRICT C O ^ T JUDGE
1(')3
, United States District Judge, presiding, and the issues having been duly tried
(KSa40<and a decision having been duly rendered, in the Memorandum Opinion entered September
29, 1976, in fa v o r o f the defendants,
I t i s Ordered and Adjudged in accordance w ith the Memorandum Opinion that the
case be and i s hereby dism issed as to the defendants.
.. .itiW
Dated at Memohis, Tennessee
/
r
, tills 30th day
Clerk o f Court
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1 I N T H E U N I T E D S T A T E S D I S T R I C T C O U R T
F O R T H E W E S T E R N D I S T R I C T O F T E N N E S S E E
W E S T E R N D I V I S I O N
C L E A M T E E G A R N E R , F a t h e r a n d
N e x t o f K i n , E D W A R D E U G E N E
G A R N E R , D e c e a s e d , A M i n o r ,
Plaintiffs,
VS N o . C - 7 5 " 1 ^ 5
M E M P H I S P O L I C E DE PARTlviENT,
C I T Y O F M E M P H I S , w T E T H
C H A N D L E R , M a y o r o f M e m p h i s ,
J . W . H U B B A R D , D i r e c t o r o f
P o l i c e o f M e m p h i s , E . R.
H Y M O N , P o l i c e O f f i c e r o f t h e
C i t y o f M e m p h i s ,
D e f e n d a n t s .
B e i t r e m e m b e r e d t h a t t h e a b o v e - s t y l e d c a s e c a m e
o n t o b e h e a r d o n t h i s d a t e , M o n d a y , A u g u s t 2 n d , e t s e q . ,
1976, a t M e m p h i s , T e n n e s s e e , b e f o r e t h e H o n o r a b l e H a r r y
W . W e l l f o r d , J u d g e , p r e s i d i n g , w h e n a n d w h e r e e v i d e n c e
w a s i n t r o d u c e d a n d p r o c e e d i n g s h a d a s f o l l o w s :
65
CARY ELIZABETH MILLER
SUITE 410
FIRST AM ERICAN BANK BLDG.
MEMPHIS. T EN N ESSEE 30103
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A P P E A R A N C E S ;
F o r t h e P I a i n t i f f
F o r t h e D e f e n d a n t
M R . D R E W S . D A Y S , I I I , E S Q .
A t t o r n e y a t L a w
1 0 C o l u m b u s C i r c l e
N e w Y o r k , N . Y . 1 0 0 1 9
m . W A L T E R B A I L E Y , E S Q .
A t t o r n e y a t L a w
l 6 l J e f f e r s o n
S u i t e 9 0 1
M e m p h i s , T e n n e s s e e
M R . H E N R Y K L E I N , E S Q .
A t t o r n e y a t L a w
R i c k e y , S h a n k m a n , B l e u a c h a r d ,
A g e e & H a r p s t e r
1 0 0 N o r t h M a i n B l d g .
M e m p h i s , T e n n e s s e e
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1
WITNESS
I N D E X
DIRECT CROSS
Cleamtee Garner
Taiton Douĵ las Enoch
David Michael Cordero
Ann Stepp
Leedell Anderson
ND14.3ER
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1 M O R N I N G S E S S I O N
A U G U S T 2. 1 4 7 6
T H E C O U R T : G e n t l e m e n ^ a r e w e
r e a d y t o p r o c e e d i n t h e m a t t e r o f C l e a m t e e
G a r n e r v e r s u s M e m p h i s P o l i c e D e p a r t m e n t
a n d H y m o n a n d o t h e r s ?
M R . K L E I N : Y e s , s i r .
M R . B A I L E Y : Y e s , Y o u r H o n o r .
T H E C O U R T : G e n t l e m e n , I h a v e
r e a d t h e m e m o r a n d u m t h a t e a c h o f y o u h a v e
f i l e d t o g e t h e r w i t h t h e I n t e r r o g a t o r i e s
t h a t h a v e b e e n f i l e d a n d t h e s t a t e m e n t s
t h a t h a v e b e e n f i l e d , y o u r s t a t e m e n t o f
i s s u e s , a n d i t ' s v e r y h e l p f u l t o t h e
C o u r t t h a t t h e s e m e m o r a n d a a n d f u l l
p o s i t i o n s , s e t t i n g f o r t h y o u r r e s p e c t i v e
v i e w s o f t h e i s s u e s i n t h e c a s e a n d t h e
m a t t e r s t h a t t h e C o u r t w i l l b e c a l l e d
u p o n t o d e c i d e .
W e a r e r e a d y t o h e a r f r o m y o u ,
a n d i n l i g h t o f t h e f a c t t h a t t h e C o u r t is
f a m i l i a r w i t h y o u r p o i n t s a n d a u t h o r i t i e s
a n d s t a t e m e n t , y o u m a y e i t h e r p r o c e e d t o
a n o p e n i n g s t a t e m e n t o n e a c h s i d e i f y o u
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1 w i s h , o r y o u raay o r o c a e c i ;vith tiie
p r e s e n t a t i o n o i p r o o r a n d e v i d e n c e a s
y o u d e s i r e .
M R . B A I L 5 Y : Y o u r H o n o r ^ t w o
t h i n g s — c n e j I w i s h t o a p o l o g i s e f o r
o u r b r i e i d e l a y . L t . L e e ' s f u n e r a l s o r t
o f i n t e r r u p t e d - -
T H E C O U R T : ( I n t e r p o s i n ^ ) A l l
r i g h t . L e e ' s f u n e r a l h a s n ' t a l r e a d y t a k e n
p l a c e ?
M R . B A I L E Y : N o , s i r . H O j s i r .
I n a v e b e e n u i i n i s t e r l n g t o h i s d a u g h t e r .
T H E C0U"RT: I s e e . I s e e .
M R . B A I L E Y : S e c o n d l y j I w i s h
t o i n t r o d u c e c o - c o ' u n s e l , M r . D r e w B a y s ,
w h o i s a iHeinber o f t h e N e w Y o r k B a r a n d I
k n o w i t ' s S i x t h C i r c u i t a n d I t h i n k t h e
S u p r e i t e C o u r t a n d s o m e o t h e r C i r c u i t s .
T H E C O U R T : VJe ' r e h a p p y t o h a v e
M r . D a y s a p p e a r i n t h i s m a t t e r .
I w a s s h o c k e d t o r e a d a b o u t
t h a t m a t t e r t h i s m o r n i n g , M r . B a i l e y , a n d
i n t h e p r e s s . T h e r e h a s n ' t b e e n v e r y m a n y
l i k e h i m i n o u r p a r t . I d o n ' t k n o w w h e t h e r
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t h e r e w i l l e v e r b e a n o t h e r o n e l i k e L t . L e e .
A r e w e r e a d y t o p r o c e e d a s f a r
a s y o u ' r e c o n c e r n e d , M r . K l e i n ?
M R . K L E I N : Y e s , s i r . M r .
C h a r l e s H o l m e s , w h o I ' m s u r e Y o u r H o n o r
I m o w s , I s g o i n g t o w o r k w i t h m e i n t h i s
c a s e .
T H E C O U R T : A l l r i g h t . Iv'e a r e
g l a d t o h a v e y o u , M r . H o l m e s .
A l l r i g h t , a s I s a y , o n e i t h e r
s i d e , I ' m p r e p a r e d t o h e a r f r o m y o u b y
o p e n l n ^ s t a t e m e n t i f y o u l i k e , b u t a g a i n ,
a s I s a y , I a m f a m i l i a r t h o r o u g h l y w i t h
w h a t y o u h a v e a l r e a d y s u b m i t t e d a n d t h e
C o u r t a p p r e c i a t e s t h e f u l l p o s i t i o n t h a t
e a c h o f y o u h a v e s e t o u t i n y o u r m e m o r a n d a .
M r . B a i l e y , y o u m a y e i t h e r
p r o c e e d w i t h o p e n i n g s t a t e m e n t o r p r o c e e d
w i t h y o u r p r o o f , w h i c h e v e r y o u d e s i r e .
M R . B A I L E Y : Y o u r H o n o r , v/e
w a i v e o p e n i n g s t a t e m e n t a n d a r e r e a d y t o
p r o c e e d w i t h o u r f i r s t w i t n e s s , M r . G a r n e r .
T H E C O U R T : A l l r i g h t , s i r ,
M r . K l e i n , is i t a g r e e a b l e w i t h y o u t h a t
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1 t h e o p e n i n g s t a t e m e n t b e w a i v e d a n d w e g o
a h e a d w i t h t h e p r o o f ?
M R , K L E I N : Y e s , Y o u r H o n o r , I
a m g o i n g t o a s k M r . H y m o n , w h o i s o n e o f
t h e D e f e n d a n t s , t o s i t b e h i n d m e a t t h e
c o u n s e l t a b l e .
T H E C O U R T : A l l r i g h t , s i r .
M R . K L E I N : H e w i l l r e m a i n i n
t h e C o u r t r o o m .
T H E C O U R T : A l l r i g h t , s i r . H e
is e n t i t l e d t o b e p r e s e n t .
Y o u m a y c a l l y o u r w i t n e s s , a n d
g e n t l e m e n , i n t h i s n o n - j u r y t y p e o f p r o
c e e d i n g , f o r t h e b e n e f i t o f e a c h o f y o u ,
I d o n ’t p l a n t o h a v e t h e m a r s h a l i n t h e
C o u r t r o o m . H e w i l l b e a t t e n d i n g t h e j u r y
t h a t i s o u t , s o if e i t h e r o f y o u h a v e
m a t t e r s t h a t y o u w i s h t o p r e s e n t t o a
w i t n e s s , y o u a r e f r e e t o a p p r o a c h t h e
w i t n e s s a n d p r e s e n t t h a t t o h i m . M r .
C l e r k , w i l l y o u c a l l t h e f i r s t w i t n e s s
i f h e i s —
M R . D A Y S : ( I n t e r p o s i n g )
Y o u r H o n o r , w e w o u l d l i k e t o c a l l a s o u r
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M r . C l e a m t e e G a r n e r .
T H E C O U R T : A l l r i g h t .
W h e r e u p o n ,
C L E A M T E E G A R N E R .
a f t e r f i r s t b e i n g d u l y s w o r n , w a s e x a m i n e d a n d t e s t i f i e d a s
f o l l o w s :
D I R E C T SXAl-IIl'IATION
B Y M R . D A Y S :
Q. M r . G a r n e r , w o u l d y o u s t a t e y o u r f u l l n a m e a n d
a d d r e s s f o r t h e r e c o r d , p l e a s e ?
A. S t a n d o r s i t ?
T H E C O U R T : H o , y o u m a y s i t ,
M r . G a r n e r .
A. ( B y t h e w i t n e s s ) M y n a m e i s C l e a m t e e G a r n e r . Y o u
w a n t m y a d d r e s s ?
first witness the Plaintiff in this case,
Q.
A.
Q.
A.
Q.
A.
Q.
A.
T h a t i s r i g h t .
I l i v e a t 928 T u l l y , M e m p h i s .
A n d h o w l o n g h a v e y o u l i v e d a t t h a t a d d r e s s ?
A b o u t 1 1 y e a r s .
A r e y o u t h e P l a i n t i f f i n t h i s c a s e , M r . G a r n e r ?
S i r ?
A r e y o u t h e P l a i n t i f f i n t h i s c a s e ?
P l a i n t i f f , P l a i n t i f f , y e s , s i r .
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0,. M r . G a r n e r ^ c o u l d y o u i n d i c a t e w h a t y o u r e d u c a
t i o n a l baclCi^round is?
A. A b o u t s i x g r a d e l e v e l .
Q. A n d w h e r e a r e y o u o r i g i n a l l y frona?
A. M i s s i s s i p p i , T i l ^ a t o b a , M i s s i s s i p p i .
Q. Hov; l o n g h a v e y o u r e s i d e d i n M e m p h i s ?
A. S i n c e 1 9 ^ 5 •
S i n c e 1 9 ^ 5 ?
S i n c e 1 9 ^ 5 *
A r e y o u e m p l o y e d ?
I am. e m p l o y e d a t t h e M e m p h i s D e f e n s e D e p o t .
A n d h o w l o n g h a v e y o u b e e n e m p l o y e d t h e r e ?
A b o u t , s i n c e 1 9 5 2 , a b o u t 2'4 y e a r s .
A n d w h a t i s y o u r j o b c a t e g o r y a t t h e d e p o t ?
iJo m a t e r i a l p a c k e r .
A n d h a v e y o u b e e n i n t h a t j o b s i n c e y o u s t a r t e d ?
I h a v e n ' t b e e n i n t h a t j o b s i n c e I s t a r t e d . I h a v e
b e e n i n t h a t j o b a b o u t 1 2 y e a r s .
Q.
A.
Q .
A.
Q.
'K*
A.
Q.
A.
Q. I s e e . A t w h a t l e v e l d i d y o u s t a r t i n t h a t
e m p l o y m e n t ?
A. I s t a r t e d o u t i n l a b o r e r s , W 2 l a b o r e r s •
Q. I s it c o r r e c t t o s a y t h a t y o u m o v e d up f r o m t h a t
o r i g i n a l l e v e l t o y o u r p r e s e n t p o s i t i o n ?
A. C o r r e c t .
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1̂ 0 y o u h a v e a n y h i s t o r y o f s e r v i c e i n t h e r a i l i t a r y ,
M r , G a r n e r ?
A. I s t a y e d f o u r y e a r s a n d f o u r m o n t h s i n t h e A r m e d
F o r c e s , t h e A r m y .
^ A n d y o u r p r e s e n t a d d r e s s , h o w l o n g h a v e y o u b e e n a t
t h a t a d d r e s s ?
A. A b o u t 1 1 y e a r s .
Q* -Do y o u r e s i d e i n a p r i v a t e h o m e o r d o y o u r e s i d e i n
s o m e t y p e o f a p a r t m e n t c o m p l e x ?
A- I g u e s s w h a t y o u w o u l d c a l l a.h a p a r t m e n t c o m p l e x .
I vfould s u p p o s e j u s t l i k e a r e s i d e n t i a l h o u s e .
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A r e s i d e n t i a l h o u s e ?
Y e a h .
A n d d o y o u r e n t o r a r e y o u b u y i n g a h o u s e ?
I ' m b u y i n g .
A r e y o u m a r r i e d , M r . G a r n e r ?
I ' m m a r r i e d .
A n d h o w l o n ^ h a v e y o u b e e n m a r r i e d ?
I h a v e b e e n m a r r i e d s i n c e 19 A 6 .
A n d is y o u r w i f e s t i l l a l i v e ?
S h e i s s t i l l a l i v e .
D o y o u h a v e a n y c h i l d r e n ?
I h a v e f i v e c h i l d r e n .
A n d c o u l d y o u n a m e t h o s e c h i l d r e n a n d t h e i r
I I . 1 7 a
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relative ages?
Curtis Garner, twenty-two, Charles Garner, tv/enty,
and Larry, nineteen, and Edward would have been, if he had
been living he would have been seventeen, Linda, si:;cteen, and
Diane, thirteen, I believe she'll be fourteen her birthday.
Now, could you indicate something about the educa
tional background of your children? Are any of your children,
who are presently living, high school graduates?
A- Yes, I have tvro high school graduates, Charles
Garner and Larry Garner.
Q- And are Linda and Diane in school?
A. They are still in school.
Q- Do you know whether they intend to complete their
course of study?
A. They intend to finish. They like school very much.
I think they will finish. At least, I hope they will.
Q- Is it fair to say that you expect that they will
complete their course of study and graduate?
A. I believe they will complete.
Q* Are any of your children presently employed?
A. Yes. Charles, he runs a body shop, and Larry, he
runs a grocery.
Q- And what about Curtis, the oldest son?
A. l/Jell, he helps out with the grocery and the body
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Shop .
Q.- Does he en̂ iage in any other hind of enaploynient?
A. Well, he did work in the grocery. He was working
in the grocery a while, but his back — he had trouble with
his back and he stopped v/ork because he got operated on for
his back.
Q- So the reason why he stopped working was because of
an illness?
A. He was still having back trouble, you ioaow, from
the operation.
Q* Novj, in terms of the children that you have .just
mentioned, the children who are presently living, do you
recall having any problems with these children in terms of
their educational situation, that is, any school probrems that
they might have had while they were growing up?
A. Well, speaking from Curtis, I didn't have any
trouble with him too much. Charles and Larry, well, I think
Charles failed one year and I think Larry failed one year.
Other than that, I didn't have no problem with them in school.
Q. But Charles and Larry did ultimately graduate from
high school?
A. They did finish. Yeah, they graduated.
Q. I see. And did you have any problems with the
girls in terms --
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A. (Interposing) I don't have no trouble with the
girls. They seem to like school.
Q. Have these other children had any problems with
the police authorities, to your knowledge?
A. Not to my knowledge.
Q. So that the children that you have just mentioned
earlier have not, to your knowledge, had any difficulty with
the police authority?
A. Not to my knowledge .
Q. Have you had any problems ever with the police
department in terms of your personal life?
A. VJ’ell, I was picked up a couple times for being
drunk. You see, I was drunk a couple times, about the only
problem that I had.
Q. And was that a recent occurrence?
A. One time, when I first got out of the service,
would be about 30 something years ago and I think about maybe
two years later than that. That was about the last time I had
trouble with them.
Q. So at least for 30 years you haven't had any per
sonal involvment with the police department?
A. I haven't had any trouble with them.
Q. Has your wife had any problems with the police
department?
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A. S h e h a s n ' t h a d a n y p r o b l e m w i t h t h e p o l i c e .
Q. I w a n t t o t u r n t o y o u r s o n , E d w a r d E u g e n e G a r n e r .
I s i t c o r r e c t t h a t h e is d e c e a s e d ?
A. T h a t i s c o r r e c t .
Q. K o w ^ c o u l d y o u d e s c r i b e i n t e r m s o f p h y s i c a l
a p p e a r a n c e , y o u r s o n , E d w a r d E u g e n e G a r n e r , a t t h e t i m e o f h i s
d e a t h ?
A.
Q.
A.
Y e s , h e w a s k i n d o f a s m a l l t y p e p e r s o n , s l e n d e r .
H o w t a l l w o u l d y o u s a y h e w a s ?
I w o u l d s a y h e w a s a b o u t f i v e f e e t t w o i n c h e s o r
t h r e e i n c h e s .
Q. A n d d o y o u h a v e a n y r e c o l l e c t i o n o f h i s w e i g h t ?
A. I b e l i e v e h e w o u l d vjeigh b e t w e e n a h u n d r e d a n d
m a y b e e i g h t y - f i v e o r n i n e t y . K e d i d n ' t wei ; ^ h o v e r a h u n d r e d ,
I d o n ' t b e l i e v e .
Q. B u t y o u d o n ' t r e c a l l ?
A- I d o n ' t r e c a l l t h e e x a c t 'weight.
0.. — t h e e x a c t w e i g h t . A n d h o w o l d w a s h e a t t h e
■(
t i m e o f h i s d e a t h , if y o u r e c a l l ?
A. F i f t e e n .
Q. W a s h e e n r o l l e d i n s c h o o l a t t h e t i m e o f h i s d e a t h ?
A. H e w a s .
Q. N o w , i n c o n s i d e r i n g E d w a r d E u g e n e - i n c o m p a r i s o n t o
y o u r o t h e r c h i l d r e n , w o u l d y o u s a y t h a t h e h a d m o r e o r l e s s
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1 trouble in terms of school situations?
A. Well, I would say he had more trouble in school
situations. Well, he had a little more problem in school it
seemed,
Q- Could you give some indication of what, if any,
problems he had?
A. Well, I believe he failed twice and then he had
some trouble, you know, I think he skipped some classes or
something like that.
Q- VJere you informed of this fact by school
authorities?
A. That is right, I vms.
Q- Did you take any action in response to this infor
mation from school authorities about Edward Eugene's diffi
culties?
A. I talked with the principal and I talked with some
of his teachers.
Q- Why did you take that action, Mr. Garner, i f y o u
can indicate?
A. Because I was concerned about him doing well in
school. I thought he should be corrected and what I could do
to correct him, I v/ould try to do it, because I was working
with the teachers, the principal.
Q- Again, comparing your son, Edward, with your other
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cnildren_, did he have more or less problem with police
authorities than the other children?
A. V/ellj he niiiiht have had more perhaps. I'm quite
sure he did, yes.
Q- Could you indicate what, if anything, you recall
about his having problems with the police authorities prior to
his death?
THE COURT: Excuse ms just a
minute, Mr. Days, if I may. Excuse me,
Mr. Garner.
(Discussion off the record.)
THE COURT: Excuse me, sir.
MR. DAYS: That is quite all
right. Your Honor.
THE COURT: You may proceed.
MR. DAYS; I'm not intimately
familiar with the judicial calendar in
Memphis, but I have some idea what that
matter related to.
Q. (By Mr. Days) Mr. Garner, at the time the Court
had to turn to another matter, I was ashing you whether Edward
Eugene had any problems v/ith the police authorities as com
pared to experiences you had had with your other children, and
you v;ere about to describe to the best of your recollection thi
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nature of problems that he had had. Could you continue your
answer in that respect?
A. He did have some problems. I guess you would call
them problems. I don't kno'w if you would call them problems.
He was picked up, and you know, taken to Juvenile on a couple
of occasions, you know.
Q. Could you be more specific, if you're able to?
What, to the best of your recollection, was the nature of
Eugene's first problem with the police authorities?
A. I believe it was third degree burglary. I believe
he was charged with third degree burglary.
Q. And could you describe, to the best of your know
ledge, what circumstances produced that charge of third degree
burglary?
A. Well, he was placed on probation for a year and
after that he was taken off the probation.
Q. But what was he alleged to have done that produced
those charges?
A. They said he had entered a building, you know, and
I wanted to know what happened.
He said really they picked him up at school because
I don't know what happened — so they taken him to Juvenile
from school, so I wanted to Icnow what happened. V/hen I got a
report — that was a report that I got that they had him on
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third degree burglary, you know.
That is when I went in and talked with one of the
counselors , I believe, and they put him on probation for a
year.
Q. You talked to a councilman or to a counselor?
A. A counselor. I believe it v;as Mr. Rogers, if I*m
not mistaken. I'm not sure.
Q. And you say as a result of these charges, your son
was put on one year's probation?
A. Probation, that is correct.
Q. As a result of these charges having been brought
against your son and his being put on probation, did you take
any action with respect to Eugene's behavior, Edv/ard Eugene's
behavior after that time?
A. That is right. I counseled with him and I chas
tised him and gave him certain hours to be home, you knew,
during the day and at nighttime, and different things.
Q. What were the conditions of his probation, if you
recall?
A. What vjas the --
Q. (Interposing) Conditions of his probation. Were
there any requirements that he had to meet to satisfy —
A. (Interposing) Restrictions. He had certain times
of night he v/ould have to be at home . Somebody would have to
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k n o w w h e r e h e w a s a t a l l t i m e s .
Q- And who in your family, if anyone^ assumed the
responsibility of overseeing that he complied with those
requirements?
A- I w o u l d , w h e n I w o u l d b e a t h o m e , a n d m y w i f e w a s
s u p p o s e d t o w h e n I w o u l d b e a w a y f r o m h o m e . O f c o u r s e , h i s
o t h e r b r o t h e r s a n d h i s o l d e r b r o t h e r , h e w a s c o n c e r n e d a b o u t
h i m a n d t h e y w o u l d k e e p c h e c k o n h i m a s n e a r a s t h e y c o u l d .
Q- I b e l i e v e y o u i n d i c a t e d t h a t y o u w e r e a w a y f r o m
h o m e ?
A. Y e s , I w o r k e d t h e s e c o n d s h i f t , e v e n i n g s h i f t , a n d
I ’m s u p p o s e d t o be a t w o r k f r o m f o u r o ' c l o c k t o 1 2 : 3 0 o ' c l o c k .
Q- A n d i s t h a t t h e r e g u l a r s h i f t y o u h a d ?
A. T h a t is t h e r e g u l a r s h i f t I h a d .
Q. A n d y o u c o n t i n u e t o 'work t h a t s h i f t ?
A. I s t i l l w o r k t h a t s h i f t .
Q. S o d o e s t h a t m e a n t h a t y o u w e r e a w a y f r o m y o u r
h o m e f r o m f o u r o ' c l o c k i n t h e a f t e r n o o n u n t i l t w e l v e o ' c l o c k
m i d n i g h t ?
A. I g e t o f f a t t w e l v e o ' c l o c k b u t I u s u a l l y g e t h o m e
a b o u t o n e o ' c l o c k i f I d o n ' t s t o p n o p l a c e . S o m e t i m e s I s t o p
a t t h e s t o r e , a t F r e d M o n t e s i ' s . B u t if I d o n ' t s t o p , I g e t
h o m e a b o u t o n e o ' c l o c k .
Q. C a n y o u r e c a l l w h a t , i f a n y , p r o b l e m s E d w a r d E u g e n e
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had with the police authorities after this third degree bur
glary charge?
A. Well^ after this third degree burglary, v/ell, then
he was picked up once — I believe on a curfew charge, I
believe, and he was taken to Juvenile Court, being out after
hours.
Q. Did you have any knowledge of the circumstances
surrounding this alleged curfew violation?
A. No. He was working at a little sundry at the time
on the corner. I don't know. He said he saw some people
being arrested or something and he watching or looking on.
Him and some more children or something v/as looking
on and he was ordered by the police or a policemtn to go back
inside the place, and I think he refused to go and he was
taken to Juvenile Court.
Q. You say that Edward was working in a store at that
time?
A. He was working in a little sundry when he would be
off duty, anyway be out of school on a holiday and his off
days.
Q. Do you have any idea what he did in the store?
A. I think he was to clean up and empty trash and
stuff like that.
Q. And he would do that after school?
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A. After school hours and on holidays.
Q. Would he do It on weekends?
A. Yesj sir, weekends, yes.
Q. Do you know how long he had that particular job?
A. Ha didn't really — sometimes there was a lady.
She would send for him to come in and, you know, he didn't
really work too steady at it. Whenever she needed somebody,
she would call for him to come in to work.
Q, I see. Did Edward have ajay other types of employ
ment?
A. He used to throw a paper called the Consumer Times,
I believe. He used to throw that once a week.
Q. And do you recall how lon.D he had that particular
-job?
A. I believe, if I can remember good, I think he threv/
it for about two years iiiaybe, more or less.
MR. KLEIN: I'm sorry. I
didn't understand what he said.
THE COURT: The Court under
stood him to say that he threw papers for
a time, approximately two years.
THE WITNESS: Consumer Times
was the paper, name oi the paper.
THE COURT: Consumer Times.
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Q. (By Mr. Days) Did Sdvjard have any problems subse
quent to the curfew violation tnat you just described?
A. After^ you mean?
Q. That is right.
A. He did have trouble because really — one particu
lar time, particular occasion, you know, I give him a two
dollar bill, or my wife, one, gave him two dollars and he had
to have two dollars for someuhLng. I didn't know what reason,
but I gave it to him.
And then later on, well, he turned up with a lot
of pennies, you know. I don't know where he got the pennies
from. My son, one of my sons, was telling me where he had,
you know, a lot of pennies.
So I talked with him about it, and he said he got
those two dollars changed into pennies. And so I begin to
believe it. Then my son said he had more than two dollars
worth of pennies.
Q. Your son told you that he had more than two dollars
worth of pennies? Are you referring to Edward or are you
referring to the other son?
A- My other son was the one who told me that Gene had
more than two dollars v«orth of pennies,
Q. So these were other sons of yours who informed you
that Eugene —
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A. (Interposing) Gene had more pennies. Yeah, that
is right.
Q. I see.
A. But I questioned him further where did he come up
with the pennies, and then I was questioning him about v/hsre
did he get them from, and later on he told me where he got
them from.
It was just about time for me to go to v/orlc at the
time. You know, it was at evening time. So I told him to
show — I told him take them back to where he got them and
also my oldest son was at home, and I told my oldest son to go
with him and see where he got them and take them back, you '
know, to the place.
And so, he taken them back. And the lady — I
forget her name — she didn't want to call the police, you
know. Well, see, I think my oldest son insisted on calling
and she said since somebody had been into her place and since
a person the size of Edward couldn't have done it by himself,
it would take mors than -'- it would have to be a larger
person to move the stuff around that had been moved around.
Q. Nov7, why did you make Edward Eugene Garner take the
pennies back?
A. Because I thought that would teach him not to
bother things that didn't concern him and, you know, I felt
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t h a t i t w o u l d c o r r e c t h i m s o m e a n d t h a t h e w o u l d b e a s h a m e d
t o d o s o m e t h i n g l i k e t h a t a g a i n . I t h o u g h t t h a t w o u l d h e l p
h i m s o m e b y m a k i n g h i m t a k e t h e m b a c k ^ a n d f a c i n g u p t o i t ,
y o u k n o w , a n d t e l l t h e l a d y w h a t h e h a d d i d . I t h o u g h t t h a t
w o u l d h e l p h i m .
Q* A n d I b e l i e v e y o u i n d i c a t e d t h a t y o u w e r e
i n f o r m e d o f t h i s p e n n y s i t u a t i o n b y y o u r o t h e r b o y s ?
A. Y e s , C h a r l e s .
Q- W a s t h a t u n u s u a l f o r t h e m t o b r i n g t o y o u r a t t e n
t i o n s o m e t h i n g t h a t E d w a r d m i g h t h a v e d o n e ?
A. N o . A n y t i m e w h e n o n e o f t h o s e c h i l d r e n — t h e
o l d e s t c h i l d r e n s e e s o n e d o i n g s o m e t h i n g t h e y d o n ’t t h i n k i s
r i g h t , a n d h e v/on't l i s t e n t o t h e m , t h e n h e b r i n g s i t t o m y
a t t e n t i o n o r e i t h e r t h e i r m o t h e r ’s' a t t e n t i o n .
Q- A n d t h i s wa.s s o m e t h i n g t h a t h a p p e n e d f r o m t i m e t o
t i m e , r a r e l y , f r e q u e n t l y ? H o w v;ould y o u d e s c r i b e it?
A. Y o u m e a n , w h a t ? B r i n g i n g t h i n g s — a n y t i m e t h a t
h e t h o u g h t t h a t E d v / a r d o r s o m e o n e w a s d o i n g s o m e t h i n g h e
s h o u l d n ' t d o , t h e y w o u l d t e l l m e a b o u t i t o r t e l l m y w i f e
a b o u t i t , b r i n g i t t o o u r a t t e n t i o n .
Q. I n S e p t e m b e r o f 197^ w a s E d w a r d E u g e n e e n r o l l e d i n
s c h o o l ?
A.
Q.
H e w a s .
A n d w h e n d i d h e d i e , if y o u r e c a l l ?
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A* I b e l i e v e O c t o b e r — I b e l i e v e o n t h e 3 r d o r 4 t h
o f O c t o b e r , , 1 9 7 4 .
A n d s o a t t h e t i m e t h a t h e d i e d , h e w a s e n r o l l e d i n
s c h o o l ?
A.
Q.
A.
T h a t i s c o r r e c t , VJest S i d e .
W h a t s c h o o l w a s t h a t ?
W e s t S i d e J u n b r H i g h , I b e l i e v e i t w a s , o u t i n
F r a i » s e r . I b e l i e v e i t w a s j u n i o r h i g h o r h i g h s c h o o l .
Q* M r . G a r n e r , i f y o u h a d t o s u m u p i n a fev/ 'words
w h a t y o u r s o n E d w a r d E u g e n e G a r n e r w a s l i k e , w h a t w o u l d y o u
s a y ?
A- W e l l , h e w a s a v e r y e a s y p e r s o n t o g e t a l o n g w i t h .
H e w a s n ’t a v i o l e n t t y p e p e r s o n . I m e a n , m o s t a n y b o d y c o u l d
t a l k w i t h h i m . H e c o u l d m a k e f r i e n d s q u i c k , a n d h e w a s a nice
p e r s o n , I m e a n , a s f a r a s I ’m c o n c e r n e d .
H o w w o u l d y o u d e s c r i b e h i m i n t e r m s o f h i s i n t e l l i
g e n c e ? W a s h e a s l o w p e r s o n o r w a s h e q u i c k - w i t t e d ? H o w
w o u l d y o u d e s c r i b e h i m ?
A* H e w a s q u i c k t o c a t c h o n . H e w a s n ' t v e r y s l o w .
H e w a s q u i c k t o c a t c h o n , v e r y e a s y t o c a t c h o n .
Q* M r . G a r n e r , i f y o u r s o n h a d n o t d i e d i n O c t o b e r o f
1 9 7 5 ^ d o y o u h a v e a - y t h o u g h t s a b o u t w h a t w o u l d h a v e h a p p e n e d
t o h i m ?
M R . K L E I N : Y o u r H o n o r , I ' m g o i n g
s n
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t o o b j e c t t o t h a t .
T H E C O U R T : i n t h e s e
t y p e s o f t h i n g s , M r . ICLein, I t h i n k
s o m e l a t i t u d e i s a p p r o p r i a t e . T h i s
m a y i n v o l v e s p e c u l a t i o n a n d i t m a y
i n v o l v e o p i n i o n , b u t I ' m g o i n g t o
p e r m i t i t u n d e r t h e s e c i r c u m s t a n c e s .
Y o u m a y p r o c e e d .
Q- ( 3 y M r . D a y s ) D o y o u r e c a l l t h e q u e s t i o n , M r .
G a r n e r ? I f h e h a d n o t d i e d i n 1 9 7 ^ j b o y o u h a v e a n y
t h o u g h t s a b o u t v;hat w o u l d h a v e b e c o m e o f y o u r s o n ?
A. I b e l i e v e h e c o u l d h a v e b e e n c o r r e c t e d . I b e l i e v e
h e w o u l d h a v e c h a n g e d a n d b e e n a d i f f e r e n t p e r s o n .
Q. W e l l , w h a t i s y o u r b a s i s f o r t h i n k i n g t h a t , M r .
G a m e r?
A. VJell, b e c a u s e I w a s p l a n n i n g o n r e t i r i n g , y o u
k n o w , s h o r t l y b e f o r e t h a t h a p p e n e d , a n d I w a s g o i n g t o h a v e a
c h a n c e t o b e -with h i m m o r e w h e r e I c o u l d c o r r e c t h i m d i r e c t
m y s e l f m o r e , a n d I t h i n k t h a t w o u l d h a v e h e l p e d a w h o l e l o t .
Q. S o y o u w o u l d h a v e n o l o n g e r b e e n o n t h a t f o u r t o
t w e l v e s h i f t ?
A. T h a t ' s r i g h t . I w a s p l a n n i n g o n r e t i r i n g t h e n e x t
y e a r , t h a t f o l l o w i n g y e a r a f t e r , b u t s e e , a f t e r t h i s h a p p e n e d
t h a t m a d e m e h a v e t o w o r k o n l o n g e r .
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MR. DAYS: Just one moment.
Your Honor.
THE COURT: Yes, sir.
MR. DAYS: we have no further
questions. Your Honor.
THE COURT: You may cross-
examine .
CROSS EXiUmiATION
BY MR. KLEIN:
Q. Mr. Garner, you sai
A. How many sons I hav
Q. Just the number of
A. I have three sons.
Q. Three sons. All ri,
is he a son of yours?
A. ŵTio?
Q. Larry Eugene Garner
A. That is right.
Q. All right. Now, I ■
asked you a minute ago if any of your other sons had been in
any trouble and I think you said, no, that they had not?
A. To my Imowledge, that is right.
Q. VJell, nov/, wasn't your son, Larry Eugene Garner,
didn't he have some trouble with the Juvenile authorities back
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in 1970 and 19 7 1?
A- Not to my knowledge. I don't remember it.
Q- VJell, wasn't he picked up on an assault and
battery charge back in 1970 and turned over to the Juvenile
authorities?
A. Not to my knowledge.
You don't know anything about that? Is that what
you're saying?
A* I said I don't know anything about that.
Q* Nhat about truancy? Do you know what truancy is?
A- I said, to my knowledge, I said I didn't know any
thing about it.
Well, now, what about another charge of truancy?
Was he having any problems about going to school or were you
having any trouole keeping him in school back then?
A. Keepirxg Larry in school?
Q. Yes.
A- Larry stayed in school until he finished school.
Q* Well, do you know whether or not he was ever
picked up by the Juvenile authorities and charged with
truancy?
A. Not to my knowledge.
Q* You don't remember that either?
A. No.
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Q- Nowj as far as Edward Eugene Garner, your son who
died in October 197^> I think you have mentioned two instances
where he was held by the Juvenile authorities for burglary?
Is that correct?
A. That is correct.
Q. All right, and you described to us what each one
was involved, I believe. In one instance he had stolen a jar
of pennies or stolen something out of a house, is that correct
A. I don't know whether those pennies was in a jar or
what it was in. I mean, I icnow when I saw them., they was in a
bag.
Q. You saw them in a bag?
A. I believe they was in a plastic bag, I believe.
Q- All right. Now, hov; did you find out about that?
A. One of my sons was telling me about it. Charles
was telling me about it.
Q. Charles was telling you about that?
A. That's right.
Q. And what did you do?
A, Nell, I questioned him about those pennies. He sai
it was — I think it was two dollars worth. Either I gave him
two dollars or his mother gave him two dollars. He said he
got it changed into pennies.
And after Charles was telling me that it 'was more
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than two dollars v;orth of pennies that he had_, then I checked
into it further, and he come up with the pennies and then I
asked him where did he get them from, and then finally he told
me where he got them.
Q.
Q.
A.
Q.
A.
Where did he tell you he got them?
Some lady's house down the street.
Did you know the lady?
No, I don't knov; the lady, no.
Did you go dovm and talk to the lady about it?
I sexat my oldest son down because it was time for
me to go to work. When I found out, it was about work time.
Q. So you sent the oldest boy. How old is your
oldest boy, or hov; old was he back then?
A, Well, Curtis was about twenty years old back then.
Q. That 'would be back in 197^ when this happened, is
that right?
A. He would be about twenty years did.
Q. All ri^ht. And then he 'was handled by the Juvenile
authorities and then placed on what? Probation?
A. Probation.
Q. For a year?
A. At least, he 'wasn't — the officer didn't arrest
him. If he had arrested him, they would have made a notation
of it. He had to go to Juvenile Court to see a Judge and they
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p a t h i m o n p r o b a t i o n f o r a y e a r .
Q.’ Ixi t h e t i m e b e f o r e j v;nich v/oulci h a v e b e e n tacit I n
1 9 7 1 j I b e l i e v e 3 h o w a s c h a r g e d w i t h b u r g l a r y a g a i n j a n d d o
y o u knov? w h a t h a p p e n e d o n t h a t o c c a s i o n o r 'where t h e p l a c e
w a s t h a t w a s s u p p o s e d l y b u r g l a r i z e d ?
A. I t h i n k i t 'was o v e r on, M a n a s s a s n e a r C h e l s e a s o m e
p l a c e , I t h i n k t h e y t o l d me — I t h i n k I d i d h a v e a r e p o r t
f r o m t h e J u v e n i l e C o u r t . I h a d a l e t t e r , a c o p y o f i t . I t
w a s s o m e p l a c e o n M a n a s s a s n e a r Ch'>;lsea.
Q* A l l ri,_iit. A n d w h a t h a p p e n e d t o h i m o n t h a t
c h a r g e ?
A. He was placed on a yeai’*s probation.
Q. h a s h o s t i l l o n p r o b a t i o n w h e n h e w a s c h a i - g c d i n
1 9 7 4 ?
A. H o t f o r t h a t , b u t h e w a s c n p r o b a t i o n f o r h i s
p e n n y d e a l .
Q. lie w a s o n p r o b a t i o n f o r t h e p e n n y d e a l ? .
A. Y e a h , w h e n h e c,ot k i l i e c i .
Q. A n d t h e n y o u m e n t i o n e d a n o t h e r v i o l a t i o n , t h e
c u r f e w . I s t h a t c o r r e c t ?
A. T h a t w a s b e f o r e t h e p e n n y d e a l .
Q. A l l x'ight, a n d o n O c t o b e r 3 r d o f 1 9 7 4 , t n a t
e v e n i n g , w o r e y o u w o r k i n g t h a t d a y ?
A. I w a s w o r k i n g t h a t n i g h t .
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Q. You worked that night, and what was your shift at
that time?
A. The same, from four o'clock to 12;30.
Q* Four o'clock to 12:30. So in other words, it v;ould
be four o'clock in the afternoon --
A. (Interposing) Until 12;30.
Q. Until 12:30 at night?
A. That is right.
Q. -- or early in the morning. All right, now, did
your son go to school that day?
A. He didn't go to school that day. In other words,
he was being bussed and his bus didn't run or he missed the
bus for some reason.
Q.
a.
So he didn't go at all that day?
No, he didn't go.
Q. Well, now, who would be at home? If you were
v;orking the evening shift, who was at home with the children?
A. My wife.
Q. Was she there all the time?
A. She was supposed to be there all the time.
Q. All right, and he was on probation at that time,
vfas he not?
A.
Q.
At that time.
All right, was there any condition of his probation
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about the hours that he would keep or was supposed to keep?
A. I think they kind of left it up to his parents
because, you know, they could be knowing what he did all the
time, while his probation officer would be here to check on
him. He should have a certain time to getting back home, to
be at home.
Q. Well, what hours did ya'll establish for your son?
A. Well, my hours was supposed to be back home around
9:30 or no later than ten.
Q. 9:30 or no later than ten. Was he working at that
time, back in October of 197̂ 1-?
A. He used to clean up for this here lady what run
that sundry sometimes.
Q. He would do what no:v?
A. He would clean up for her, clean up in the s'undry.
Q. Well, how long would that take him?
A. It wouldn't take him — I don't know how long it
would take him because I think he would go down sometimes and
clean up and I don't know hov; long he would stay dovm there.
It was mostly holidays and weekends. That is when he 'worked
mostly.
Q. Holidays and weekends. How, October 3rd of 197^^
that was during the week, was it not?
A. That was during the 'week.
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Q. Do you remember what day of the v;eek that was?
A. I don't remember whether it was a Thursday or
VJednesday. I believe it was a Thursday.
Q. All right. But in any event, it was during — he
was supposed to be in. Based on the requirements that you had
of him, he was supposed to be in by 9:30 or no later than
ten o ’clock, is that correct?
A. About ten o'clock.
Q. All right, and you said he didn't go to school
that day. Was your wife home with him that day or do you
know?
A. See, I v̂ as home until I went to work that day.
Q. Until four o'clock?
A. Until about 3:15- I would leave about three
o 'clock or 3 :1 5 -
Q. All right. What did he do that day while you were
there?
A. Well, I had him cleaning the back, raking the
leaves in the back yard and he v/as — I left going to work,
he was laying dovm in the bed.
Q, Well, now, you say he missed his bus and that is
the reason he didn't go to school.
A. That' s r ight.
Q. How far is the school from where you live?
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A. He be bussed though. They would bus him to West
Side in Frayser. See, they had to bus him.
Q* I see. Did you have a car at that time?
A. I did.
Q- Did you give any thought to taking him to school
that day?
A- When I found out he didn't go to school, it v;as
already after school. It was late when he came back.
Q* You mean he missed his bus and didn't come back
for a long time?
A. I guess he stayed around 'waiting for the bus.
Sometimes when children be bussed to school and sometimes
those buses be late. They don't run on time all the time.
Q- What time does the bus usually come by to pick him
up?
A. I don't remember exactly the time. I don't really
have a — I don't remember v;hat time because it had different
t ime s. I had —
Q- (Interposing) Well, it 'would be reasonably early
in the morning, wouldn't it?
A. Now, some of those buses go seven something and
some go later because they pick up t'wo different groups of
children.
Q. All right. So when he finally caume home, you say
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it was too late for you to take him to school?
A. It 'was too late. It was after school. School
had been taken in because — I'm quite sure it had been taken
in at that time.
Q. So you left before four o'clock to go to your
job, and who was at home with him when you left?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
that —
A.
Q.
A.
My wife.
Anybody else?
Some more of the children was home.
All right. And then you came home at what time?
I guess about 1:30 perhaps.
1:30. That would be October 4th then?
Correct.
All right, and he, of course, wasn't at home at
(Interposing) Later on.
All right. Did you inquire as to his whereabouts?
That is what I usually do. When I was home I woulc,
check to see if all the children was home, and he wasn't home
And they told me he had left home about ten ohlock to go get
a drink. I believe that is what my wife said, and he hadn't
gotten back home.
Q. Left at ten o'clock at night to go get a drink?
A. To go get a drink.
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Q. All ri^ht. Nov/, when did you first find out, Mr.
Garner, that anything or that something had happened to your
son?
A. I don't believe — it v/as about two o'clock or
maybe a little bit later. I don't know the hour. I had
somebody called and wanted to speak to Edward.
And I told him he v/asn't home and then he wanted
to know what kind of clothes does he have on and, you know,
I don't remember v/hat kind of clothes he had on because I
wasn't there when he left, but anyway somebody told me they
would be out there later on to talk with me and finally two
gentlemen came out.
Q.
A.
Q.
A.
Q.
All right, came out that morning.
That morning.
Now, we're still talking about October ^th?
Correct.
All right. Do you Icnov; who the two gentlemen
were that came out to see you?
A.
Q*
I don't remember their names.
Were they police officers?
MR. DAYS: Objection, Your Honor.
We have heard part of this line of inquiry
and it's our position that this goes beyond
the scooe of direct examination.
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1 THE COURT: Mr. Klein,
normally my ruling in that respect is
that if you go beyond the scope, to the
extent that you do you make the witness
your witness in that respect.
If you understand that ruling,
if you go beyond the scope of the direct
examination and cross examination, to
that extent the witness is your witness,
and in that event, Mr. Days, .you would be
entitled to examine the witness further
in respect of that area.
MR, KLEIN: Your Honor, I don't
have any —
THE COURT: (Interposing) What
is the relation, Mr. Klein, in respect to
anything that this witness may have stated
in any conversation with any representatives
of the Defendant?
MR. KLEIN: Well, I'm getting to
that. Your Honor.
THE COURT: Well, I’m asking —
I'm assuming that it must relate to some
conversation or discussion.
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1 What is the relevancy or
materiality of any conversation or
discussion on the part of the Plaintiff
with the police officers following the
episode that is in question?
MR. KLEIN: Well, it was a
characterization by this gentleman to
the police officer of v;hat he was
expecting to happen to his son.
Now, I can tell you exactly
what I'm going to ask before I ask it,
if you want me to.
THE COURT: All right. Vlill
you wish to be heard further in that
respect?
MR. DAYS: No, Your Honor.
We don't want to be heard.
THE COURT: All right. You may
proceed.
MR. KLEIN: Your Honor, again,
as I say, I have no quarrel with making
him my witness in that this wasn t gone
into on direct examination, but this gets,
I think, to the heart of inquiry and this
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1 is the reason I'm proceeding.
I'm trying to follow a chain
of events that occurred and this is just,
to my way of thinking, this is a part of
that chain of events.
THE COURT: Well, you may
proceed.
MR. KLEIN: All right.
MR. DAYS: Your Honor, we would
have no objection. We have some sense of
what Mr. Klein is after and if he would
just ask the questions directly and get
the correct answer, we have no objection.
THE COURT: All right, sir.
Q- (By Mr. Klein) All right. Did you talk to two
gentlemen or two police officers who came out to your home
at 928 Tully, is that correct?
A. That is correct.
Q* All right. Did these men ask you if you would go
down to identify a person that they had at the morgue to see
if it was or was not your son?
A. They did ask me that.
Q- All right, and what was your response to that
request?
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A. At the time I was really heavy and I didn't say
anything for a fev/ moments, and finally I let my oldest son
go with them to check to see was it my son.
Q. All right, you don't remember the names of the two
officers?
A. V/e did have a card. I don't remember the names.
Q. Would one of them be named Wheeler and one of them
be named Chambers?
A. They could have been. I don't remember.
Q. a i t right. And you told them that you didn't feel
like going down. You were going to send your son to go down,
is that correct?
A. That is correct.
Q. Did you make a comment to them at the tine that
even though you 'weren't for sure, that you felt that the body
at the morgue 'was your son and that you had been expecting
something like this for some time?
A. No, I think I told — I asked what type of person
was it. I asked 'was it a kid with a clean face? He said he
did have a small face.
Q, But you didn't make the comment that I just asked
you about?
A. I don't remember making no co-mment.
Q. You don't remember making it?
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A.
Q.
it?
NOj I don't,
You're not saying for certain that you did not make
A. I don't remember making such a comment.
Q* Nowj you were talking about jobs that your son
held. You mentioned the sundry store job, and then I think
you said something about throwing papers.
A- He used to throw a little old paper, a sale paper.
Consumer Times. I think they come out once a week. People
would sell them. They have advertisements and stuff for
different sales.
It wasn't like the Commercial Appeal or nothing
like that. It was just mostly for advertising.
Q* All right. Well, now, you remember my asking you
on your deposition, which I took on November 19th in my
office — you know what a deposition is? Do you remember when
you came to my office with your lawyer, Mr. Bailey, and we
asked you some questions before a court reporter and you gave
me some answers under oath? Do you recall that?
A. I remember.
Q- Now, I think I asked you at that time if he had
had any other jobs other than the one at the sundry store and
your answer to me was, no, that he had had no other jobs. Do
you know of any other jobs that he has had other than the job
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at the sundry store? Now, you have mentioned the one about
the —
A. (Interposing) I remember he had this little Job
throwing the paper. Really, I wouldn't consider that really
as a job but it was something to keep some of his time
occupied, and you know, those paper Jobs, you know how
children keep them. They keep them a while and they let them
go. It's not a Job that you would be employed at, that you
would have to go to every day.
Q- And you were characterizing your son a moment ago
by saying that you believe that if he had lived he might have
been a different person, and that you were due to retire soon
and you were going to spend more time with him. Is that what
you are saying?
A. What I meant by spending more time, I v;ould have a
chance to be at home more at night thani would Just be at home
in the daytime.
Q- You're still working, are you not?
A. I'm still working, correct.
Q. When are you scheduled to retire?
A. I v;as thinking about it pretty strong, you know,
during the time that that happened, before it happened. I
don't knov; when I'll retire. Maybe sometime in the near
future.
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Q. All right. You also mentioned the fact that, I
think you were again characterizing your son, you said he v;as
quick to catch on and not very slow. Was that v;hat you said?
A. Well, just like he — what I meant by quick to
catch on, if you were trying to explain something to him, he
would catch it real quick. You lonow, he wasn't a slow type,
hard to learn.
Q. Well, he did have trouble though, as I thiniv you
mentioned earlier, in school he failed at least two times,
did he not?
A.
Q.
school?
Right.
And he was having difficulty with something in
A. He was having some problem in school, yes.
Q. Do you Icnow what the problems were that he was
having in school?
A. I don't really luiow. I talked with some of the
teachers, and one teacher told me that he was, seemed to be
something more like an entertainer, you l<no'w, because when she
v.’ould go out of the school room, lots of times the children,
vjhen she came back in the room, the children 'would be listen
ing to him, you know. He would be the center of attention.
Q. Did he ever have any special tutoring or anything
to help him catch up for having failed two grades?
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A. No, he never did go to s'ommer school or nothing
like that.
Q.
his death?
All right. V/hat grade was he in at the time of
A. Eighth grade.
Q« He was in the eighth grade, and what school again
was that?
A.
Q-
A.
Q.
A.
VJest Side High.
That is the one in Frayser?
Frayser, I believe.
Well, he was in the eighth grade at that time?
That is right.
MR. IvLEIN: All right. Your
Honor, excuse me just one minute.
i
THE COURT; Yes, sir.
MR. KLEIN: That is all I
have. Your Honor.
THE COURT: Any further
examiiition of Mr. Garner?
MR, DAYS: Just a moment.
Your Honor.
No, we have no further questions
of this witness.
THE COURT: All right, so you may
ion 2i0
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step down, Mr. Garner.
You may call your next witness.
MR. BAILEY: Your Honor, at this
time we v/ish to call — may I peep in the
jury room to see who is in there?
THE COURT: Yes, sir.
Whereupon,
TALTON DOUGLAS EHOCH,
having been duly sworn, was examined and testified as follows
DIRECT EXAlilHATION
BY m . BAILEY:
Q. State your full name to the Court, please.
A. Talton Douglas Enoch.
Q. And Mr. Enoch, your occupation?
A. Architect.
Q. With what firm?
A. Gassner, Nathan and partners.
Q. And did I not engage you to go out to 739 Vollen-
tine in order to view an alleged scene involved in the la'w-
suit in question?
A. Yes, sir, you did.
Q. All right. While out there, did you happen to
view the scene?
A. Yes, sir, I did,
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2
Q.
A.
Q.
Q.
The residence, 7 3 9 Voilentine?
Yes, sir.
I hand you four photographs and ask you —
MR. KLEII^: Let me see those,
Walter.
(By Mr. Bailey) I hand you a photograph and ask
you can you identify it?
A.
Q.
A.
Q.
A.
Yes, sir.
And what does that photograph depict?
Well, it shous the back of the house.
Of 7 3 9 ?
O f 7 3 9 .
MR. BAILEY; Your Honor, we
would like to have that marked as
E:chibit A.
THE COURT: All right, sir.
That can be introduced as — have you
pre-marked it, Mr. Clerk?
THE CLERK: Ko, sir.
THE COURT: All right. Let it
be introduced as Exhibit 1.
(Whereupon, the said document
was marked as Exhibit 1.)
MR. KLEUI: Your Honor, may I
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Q.
inquire as to whether he made those photo
graphs or someone else made them?
THE COURT: You may inquire.
MR. BAILEY: I made them.
THE COURT: You may proceed.
(By lir. Bailey) All right. I hand you another
photograph and ask you can you identify it?
A.
Q.
Q.
A.
Q.
Q.
A.
YeSj sir. It's the back of the same residence.
All right. Can we have that marked as Exhibit B?
THE COURT; . Yes, sir.
Let it be introduced as Exhibit No. 2.
MR. BAILEY: 2.
(Whereupon, the said document
was marked as Exhibit 2.)
(By Mr. Bailey) A third photograph.
Right. The same residence.
Could v;e have that marked as Exhibit 3?
THE COURT: Yes, sir.
Exhibit No. 3.
(Whereupon, the document was
marked as Exhibit 3.)
(By Mr. Bailey) Fourth photograph.
Same residence. Just farther back from the rear.
MR. BAILEY: All right.
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Exhibit 4, Your Honor.
THE COURT: Let it be
introduced as E:chibit No. 4.
( W h e r e u p o n ^ s a i d d o c u m e n t
w a s m a r k e d a s E x h i b i t 4 . )
Q- (By Mr. Bailey) And a final photograph.
A. Yes, sir. The same, again, the same residence.
Q- Could we have that as Exhibit 5?
THE COURT; Yes, sir.
Exhibit No. 5.
(VThereupon, the said document
was marked as Exhibit 5.)
MR. BAILEY: Your Honor,
at this time we wish to tender these
photographs for the Court's view.
THE COURT: All right, sir.
(Vvhereupon, the said documents
were passed to the Court.)
Q- (By Mr. Bailey) Mr. Enoch, did you also, pursuant
to my instructions, make measurements of the back of the
residence, 7 3 9 Vollentine and do an illustration, a diagram?
A. Yes, sir.
Q. A scale model?
A. In the form of a scale model, yes, sir.
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Q* All right. I hand you this scale model and ask you
can you identify that?
A. Yes, sir. This is the same residence on Vollentine
Q- And is that the scale model you did?
A. Yes, sir. This is at a quarter inch scale with
some of the measurements showing the back yard area there.
Q- I see. And did you make your own measurements?
A. Yes, sir, I did.
MR. BAILEY: All right. I
ask you. Your Honor, for the benefit of
all of us can we —
THE COURT: (Interposing)
Yes, sir. Mr. Clerk, would you —
MR. BAILEY: (Interposing)
Mr. Enoch —
THE COURT: (Interposing)
All right, sir. You may approach if you
wish, Mr. Klein.
MR. KLEIN: Thank you. Your
Honor.
Q. (By Mr. Bailey) I hand you a pointer and ask you
to show the various models on your scale model.
A. Okay. This is the main part of the residence,
right here, where the family lives. This appears to be some
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sort of small apartment or Just a small storage room. As I
recall, it's about ten by nine or something like that, and
then this is Just the back door and then a bathroom window,
I believe, and a bedroom window, and then there is Just a
concrete stoop at the back door.
The only other thing that v/e show here — this is
like a this is a chain link fence with aluminum supports
and then the top of it is rather sharp and has pointed edges,
and I believe that is six feet high, and there is a small
chicken wire fence or something like that at this end that
probably Just contains some sort of small animal or something,
but it's not very sturdy. And this is five feet high here,
this fence, and then there is a wooden fence along this side
of the property with a wooden stop at this side and then it
was open through here. Just a — but it's less than two feet
behind this building and the fence.
And then there was another smaller fence back
behind this fence and then another fence back behind that.
Q" You mentioned the — is that chain link five feet
or six feet?
A. Five feet. I guess it's five — it's five and a
half feet.
Q.
A.
Five and a half feet.
Five and a half, right.
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there, would you again point to it?
A. Okay. It's right here.
Q. And how high is that chicken wire fence? How tall
is that?
A. Three feet, as I recall. Yes, it's three feet.
Q. All right, and is there any, between the storage
house and the residence, was there any enclosure or obstacle
in there?
A. There v;as no enclosure here .
Q. All right. Now, I do believe you v/ent completely
around the storage?
A. Right, but there v;as a lot of, you know, debris,
sort of like, in here, in that area.
Q . And is that area fully enclosed or is it not?
A. Well, it's enclosed at this end, so you couldn't
get out through there, but I mean unless you could jump over
it but it's very tight. I think that is just l8 inches right
there. That is only l8 inches on this side and like I said,
two feet on this side. So it's very tight.
Q. I see. So now, one other thing. Is there a
driveway on —
A. (Interposing) There is a driveway here, right.
Q. Now, I notice on your model there are items behind
Q. All right. The chichen wire fence you mentioned
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the main chain link fence, and would you explain those?
A. Okay. These are tne dimensions of this area, and
it's shown in five feet increments, so where you see a "five'*
indicates five feet and then ten, 15, 20 and then this entire
distance from this small buUding here to this chicken wire
fence is 32 feet and nine inches.
And then the same device was used from here. This
is 15 feet and three inches from the back of the house to this
chain link fence.
Q. All right, and going behind on the other side
of that chain link fence, what are those items shovm?
A. What, in here?
Q. Yes.
A, This is a low fence again, almost a chicken wire
fence. It was not as tall as the chain link fence, but then
this was another chain link fence in here, and this looked
like it was used as a garden area.
At the time I was there, which was in the winter,
it was, you know, sort of grown up though. But that is v/hau
it looked like it was used for. There were no buildings or
anything in here, but you could see, you know, through back
there.
Q . I also notice you have a fence running dov;n the
side there.
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1 A. Right. It connects at this point right here and
then runs along the — it looks to be a property line fence
all along here.
Q. I see. And did you make the measurements relative
to the other fences?
A. Yes, sir.
Q. And what are those measurements?
A. Let's see. I didn't put these on here. 19 feet
from this fence to — from this chain link fence to this
chicken wire fence, and then l3 feet to this other chain link
fence.
Q. I see. All right, and just for the record, I take
it the shrubbery looking item is a tree?
A. Are trees, two trees.
Q. Two trees, all right.
A. That is really all the vegetation you could say —
I mean, that was back there. In other words, it wasn't
covered in trees or anything. There were only two trees back
there.
Q. And that chicken wire fence you mentioned, you saw
in the photograph, do the photographs show exactly what you
saw when you were out there?
A. Yes, sir. That is the same. It was not what you
would say in good repair. It was, you know, falling dovm in
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1 some parts of it.
Q.
A.
Q.
Q.
Enoch?
But that is the same chicken wire fence?
It's the same chicken v/ire fence, right.
MR. BAILEY: You may resume
the stand.
Your Honor, at this time we
v;ish to introduce the scale model as,
I believe, it's Exhibit 6.
THE COURT: Let it be intro
duced .
(Whereupon, the said document
v/as marked as Exhibit 6.)
MR. BAILEY: V/e have no further
questions.
THE COURT: You may cross-
examine .
CROSS EXAIilNATION
BY IvIR. KLEIN:
May I see those photographs, please, sir?
THE COURT: Yes, sir.
(T’niereupon, the said documents
were passed to Mr. Klein.)
(By Mr. Klein) What vras your first name, Mr,
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2 Q-
A.
sir?
A*
A. Doug.
Douglas?
Right.
All rip'ht, How loag have you been an architect^
Q .
A.
Q.
A.
Q.
Let's see. Three years.
Three yeai'S?
R i o h t .
Are you licensed as such?
YeSj sir. Tor three years.
Hhen did you go out to take the — or view the
site in order to make your model?
A. Well, like I said, I believe it was in the vrinter
I just recall tliat it v;as cold and rainy.
Do you remember what month it v;as and v;hat year?
A. Well, it was either late last year or early this
year. That is all I —
Q. (Interposing) So it would be either 1975, late
1975 or early 1976?
A. 1975 or 1976, yes, sir.
Q. Now, when you went out, were you given these
pictures to take v;ith you? Had you seen these pictures when
you went cut to malce your vievv?
A. No, sir. I don't believe I had the pictures then.
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Q. All right. Now^ v/hen you got out to the scene,
did you ascertain who lived at the property?
A. No.
Q. I assume you had permission of whomever lived
there?
A. Yes. Mr. Bailey went up to the door and told them
what we were there for.
Mr. Bailey took you out there?
Right.
Okay. Did you ascertain where the property lines
Q.
A.
Q.
were?
A. Not officially, no, sir.
Q. Well, for example, you have shown here the back
fence, which you have referred to as a chain link fence,
which you initially said v;as five feet and then you corrected
yourself to say it was five and a half feet tall. Do you
know whether that was the back property line of this residency
on Vollentine?
A. VJhen I say, ’’Officially", I don't — I mean by,
you know, through a legal, in a legal way, we did not check
that out. I did not check that out.
There is a house — I mean that appears to be the
back yards of other houses that front on another street.
Q. What appears to be the back yard?
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Q. In other words, the two fenced areas behind this
five and a half feet chain link fence appears to be the back
yards of other houses? Is that 'what you're saying?
A. Right. I mean it just appears to be the property
line.
Q. And you said that it appeared to you also that
they possibly used this back area for gardening. For garden
ing, and there was grovjth or vegetation?
A. Some, you know, just overgrown weeds like you have
in the winter.
Q. All right. VJell, let me show you Exhibit 4 and
ask you if that —
A. (Interposing) Right. That is taken from that
area looking back at the back of the house.
Q. All right. Now, do you know v̂ ĥether there are
any exit ways in this back area? Do you know what I'm talk
ing about, "the back area"? I'm talking about the area
behind 739 Vollentine.
Do you know whether there are any gates, any exit
ways or v;hatever?
A. In these other instances, I do not know. I mean,
there is no — there are no gates anyv/here that I saw, I mean,
as far as, you know, a gate.
A. Those other fenced areas.
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A. I really don't know. I would think it's north.
I don't know. Do you know? Is it — I don't know.
Q. You don't know which direction is which?
A. I do not know.
Q. All right. VJell, I'm pointing here down to the
bottom of your exhibit. Do you know whether there vras a
driveway on that side of the house?
A. I don't recall, that there v;as. I know there v;as a
driveway on the other side that serviced that particular
residence, but on the other side it seems to me there was a
house very close and there was no drivev\ray on that side.
Q. Nov; which side are you talking about?
A. Well, let's see. If that's the north, that would
be on the west side.
If the houses faces north, then this would be on
this side right here. There was no driveway. There was a
drivevmy on that side.
Q. All right. In other words, you're saying there
was a drivevjay that goes to this little garage-like house?
A. I don't think it was ever a garage. It's not
large enough for a garage.
Q. All right. And your scale is wbat now?
A. One-quarter inch.
Q. All right. Now, which way does this house face?
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A. One foot.
Q- One-quarter inch represents one foot.
A. Right.
Q* All right. Do you :<now how far it would be from--
let's call this the southwest corner of the house — over to
this far corner, which would be the southeast corner of that
little outhouse?
Q. One-quarter inch represents v;hat?
A.
Q.
I don't know. I could measure it,
Measure it and tell me.
MR. BAILEY: Your Honor,
for the record, Mr. Klein, can we
agree on the directions?
THE COURT: That would be
helpful to the Court if you gentlemen
would orient me as to which direction
is north on that scale model.
Q. (By Mr. Klein) Would you put arrows on there
showing the directions?
A. It's 3 7 feet approximately, 3 7 feet.
MR. BAILEY: You had better
put it up where the Court can see it.
MR. KLEIN: Mark, if you would
for me, please, sir, this direction and
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THE WITNESS: Okay. You want
rae to just —
MR. DAYS: In fact, aaark in
all four directions. That would be helpful.
A. (3y the witness) This would be the east side.
This would be the west, and this would be the south.
Q. All right. Now, that measurement that you gave me
Just a moment a^o where I asî ed you from this point --
A. (Interposing) From this corner is where 1 made
the measurement.
Q. All right, I want you to go just outside of this
corner on the other side of this fence and then make the
measurement all the way over to this corner of the garage or
the outhouse.
A. It would be Just about -- would that be approxi
mately the point you want it --
Q. (Interposing) Just on the other side of this
chicken wire fence Just mark a point there and a point there,
if you would for me, please.
that direction.
A.
Q.
A.
Q.
You Just want a point here?
Yes.
And then a point right here?
Right, just on this side of the outside, and then
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A. (Interposing) That is 37 leet six inches.
Q. 37 feet six inches.
A. Right.
Q. When you were out there, Mr. Enoch — and 1*11
refer to it as a chicken wire fence running along the west
side of the house — was it up or down when you were there?
A. Partially up and down. The area nearest the
house was up and then the part nearest the chain link fence
was down.
Q. Ail right. Do you know — of course, you
wouldn't know what the condition of it was back in October
1 9 7 4 ?
A. I wouldn't have any idea.
Q. You wouldn't have any idea. And that chicken
wire fence was how tall, did you say?
tell me what the distance —
A. Three feet.
MR. KLEIN: Three feet.
That is all I have. Your Honor.
THE COURT: Anything further
of Mr. Enoch?
MR. BAILEY: Just one other
question. Your Honor.
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r e-DIRECT EXAMINATION
BY MR. BAILEY:
Q- Does Exhibit 2 show pretty much the condition of
the fence when you were out there, the chicken wire fence?
A. Yes, sir. That is what I would -- it was up, you
know, it was erect' on the side nearest the residence and
then falling down or sagging near the chain link fence.
MR. BAILEY: All right.
That is all. Your Honor.
THE COURT: All right, sir.
You may step down, sir. Thank you.
Gentlemen, why don't we take
a brief rec.ess now before you call your
next witness and we'll be ready to
proceed. About ten minutes.
(Recess.)
THE COURT: Are you ready with
your next witness?
MR. BAILEY: Yes, sir. Mr.
Enoch, would you resume .the stand again,
please?
There were three photographs.
Your Honor, I neglected to get testimony
on.
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Q, (By Mr. Bailey) Gan you identify this photograph?
A. Yes. This is the area directly in back of the
snaall shed, looking toward east, novj that we have the direc
tions established.
Q. And what is this —
A. (Interposing) That is the beginning of that fence
that goes alon̂ i the side of the entire shed.
Q. On which side of the shed?
A. On the east side of the shed. It does not correct
at the corner. This photograph is a little bit misleading.
It doesn't connect at the corner of that fence. It starts
at the corner of the chain link fence and then continues past
that really.
THE COURT: Mr. Bailey, would
you put your finger at the point that I
think he discussed?
MR. BAILEY: Here?
THE COURT: Yes, sir. Thank you.
THE WITNESS: Right.
MR. BAILEY: Could we have this
marked as Exhibit 7?
THE COURT: Yes, sir. Let it be
marked as the next exhibit number.
THE COURT: All rie>ht, sir.
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1
2 (Khereuponj the said document
was marked as Exhibit 7-)
Q, (By Mr. Bailey) I hand you another photograph
and ask you what does it shov:?
A. Okay. This is the enclosure at the end of the
shed. Well, at the north end of the — at the northeast
corner of that small shed. This wooden fence continues past
the shed on down that assumed property line several feet, and
then this is the enclosure from that corner over to that
fence.
Q. V/ould you use your pointer and indicate?
THE COURT: Thank you.
A. (By the witness) It's at tnis point right here.
The photograph is actually made from back here looking
through that area to that little fence right there.
MR. BAILEY: And finally. Your
Honor, may we have this marked as 8?
THE COURT: Yes, sir. Let it
be marked Exhibit No. 8.
(Whereupon, the said document
was marked as Exhibit 8.)
THE COURT: I'm going to suggest
when we complete, if you will, Mr. Bailey,
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THE CLERK: No. 7-
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if you'll raarlc on the chart there where
Exhibit 7 and No. 8, for the record^ will
show on your scale model. Tie in these
exhibits to the scale model for the
purpose of the record.
You have pointed it out and
I can see it clearly, but I think the
record should also make that clear.
MR. BAILEY: Very well. Your
Honor.
Q. (By Mr. Bailey) I hand you another photograph and
ask you can you identify that?
A. Yes, sir. This is made in that back lot behind th^
main house and it's made looking east down this, almost on
top of this small chicken wire fence along in here, and you
can see in the picture where there was a garden on this side.
You can still see some tomato stakes or something
in that area.
Q. And does that reasonably depict the conditions
when you.were out there?
A. Yes, sir. It shows those two trees, too, that we
have shown here.
Q. Can we have that marked as 9?
THE COURT; Yes, sir.
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1 (Wnereapon, trie said document
was raarl-cad as Exhibit
Q. (By Mr. Bailey) Mr. Enochs wouia you mark, on the
model, correlate the photographs?
A. The photographs.
THE COURT: Let him have
these photographs.
THE WITIIESS: Just these three?
THE COURT: Yes, sir.
THE WITilSSS: You want me to
just mark them where they were made from
and what direction they are looking —
THE COURT: (Interposing)
Yes, sir. That would be fine. Thank you.
Q- (By Mr. Bailey) V/ould you also mark an X on the
chicken wire fence on the photograph and I guess you had
better mark -- 'would you make a .mark on the photograph show
ing the chicken wire fence and the chain link fence that you
have testified to?
A. I probably need anothier pen. Just with an arrow,
just denote the two different —
MR. BAILEY: (I.nterposin^)
li you will put an X on the chicken wire
and maybe e. Y on the cha.in link show.in;- the --
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1 all right. Thank you. I have no —
2 MR, KLEIN: (Interposing)
3 Your Honor, may I see those, please?
4 THE COURT; Yes, sir.
5 Just a minute, Mr. Enoch. We'll see if
6 there are any further questions.
7 RE-CROSS EXAI4INATI0N
8 BY MR. KLEIN:
9 Q. Mr. Enoch, you again didn't make these photographs
10 I take it?
11 A. No, sir. I did not.
12 Q. I'm talking about now Exhibits 7̂ 6̂ and 9?
13 A. No, sir. I made none of the photographs.
14 Q. All right. Then did you have them with you when
15 you went out to visit the scene?
16 A. No, sir.
17 Q. You had not seen them at that time either?
18 A. I had not seen them, no, sir.
19 Q. All right. So it's subsequent to that that you
20 have seen these photographs?
21 A. Right.
22 Q. I take it Mr. Bailey showed them to you, is that
23 correct?
24 A. Right.
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2 course, as you saw it in the latter part of 1975 or early
part of 19 76. You don't have any idea what it was like back
in October of 197^’
A. No.
Q. Of course, I guess it goes without saying that
whether or not this three foot chicken wire fence had
extended all the way across, you wouldn't —
A. (Interposing) V7ell, I mean, you can see from the
photograph that it was all the way across at one time, that
it was sagging in one portion.
MR. BAILEY: We'll stipulate
to that, Mr. ICLein. I think we're pretty
much in agreement.
Your Honor, we'll stipulate
that that chicken wire fence went all
the way across.
THE COURT; All right. As is
reflected on the scale model, as a matter
of fact?
MR. BAILEY: Yes, sir.
THE WITNESS : Right.
THE COURT: All right, anything
further of this witness?
Q. And again, what is depicted on your model is, of
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2 THE COURT: Thank you, sir.
You may call your next witness.
MR. BAILEY: Mr. Cordero.
Your Honor, Mr. Cordero is being taken
out of turn. He is suffering with an
î l̂ ŝss and I assured him we would get
and get him out so he could make
his doctors visit.
THE COURT: All right.
MR. KLEIN: Your Honor,
excuse me. I don't know what the
gentleman is going to testify to. I do
notice he was sitting in the Courtroom
while the other witness was testifying.
THE COURT: Well, the Court
noted that he was there just in the last
series of questions, and unless there is
some unusual problem, there is no problem
as far as the Court is concerned under
that circumstance.
MR . BAILEY: No.
attendant.
MR. BAILEY: He is the ambulance
THE COURT: Proceed, Mr. Bailey,
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MR. BAILEY: Thank you.
DAVID MICHAEL CORDERO.
after first being duly sworn, was examined and testified as
follows:
DIRECT EXAMINATION
BY MR. BAILEY;
Q. State your full name for the benefit of the Court,
please.
A.
Whereupon,
Q.
a.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
David Michael Cordero.
And your residence, please?
1265 Vinton Avenue.
Here in the ity of Memphis?
Right.
And your age?
Twenty-seven.
Occupation?
Paramedic v;ith the Fire Department.
And married?
Right.
All right. Calling your attention to the date in
question which was October 3rd of 197̂ +̂ did you and a Mr.
Williams ride as companions?
A. Yes, sir.
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A.
Q.
A.
Q.
Yes, sir.
And vjhere were you stationea?
Engine house 15. Iz v;as on — I don't know. It
Providing ambulancs services?
was either on Breedlove or Faxon. They have moved the new
engine house. I don't know whether that day — I can't recall
if we had moved into the new engine house by that time. It
was emergency unit 11.
Q- I see. And what sort of call did you ŝt?
A. Referring to —
Q- (Interposing) The gun matter, the call you made.
A. Okay. These calls like this usually come in,
”A shooting, meet the police at such and such addressy or
something like that.
Q. I see .
A. I think the police — this particular call came
through the police dispatcher.
Q* All right. I see. And how long did it take you
to get to the scene?
A. I don't know. That could be — just a short time,
you know. Less than five minutes.
Q. I see
A. Less than five minutes. I would think less than
five minutes and that probably could be checked with the alarm
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office out there. They keep a record, time out of quarters
and arriving on the scene and all of this.
Q* But to your best recollection, it was less than
five minutes?
A. Right.
Q- And upon arriving on the scene, just exactly —
would you describe in detail exactly what you saw and what
you heard?
A. Well, we didn't hear much of anything except this
boy, the young boy that was shot was shot in the head, and he
was hollering, you know, from the pain.
Q- Do you recall his utterances?
A. Nothing that you could understand. You know, just
hollering. He wasn't saying anything that I can recall, you
know, anything — I don't believe he was saying anythin^,.
The officer was really upset on the scene.
Q- Did you overhear any remarks on the part of the
officer?
MR. KLEIN: What officer are
we talking about?
A- (By the witness) The officer that was at the
scene when 'we arrived.
Q* VJas he black or white?
A. This was a black officer.
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behind counsel and do you recall v/hether or not that is the —
A. (Interposing) I don't recall.
Q- How many black officers were on the scene?
A. I believe, two. I believe, two. You know, I
didn't really pay that dose attention to this. I do Imow that
it was a black officer and he seemed to really be upset, you
know, that the fellow that got shot was such a young fellow,
and that is pretty much it. You know, he just really seemed
to be real upset about what had happened.
Q' And what did he say? Did he say anything, this
officer?
A. I think we probably asked him what, you know, vihat
had happened here or what, you knov;, what did happen and I
think the officer — I think it was stated that the fellow was
running away from a house or trying to go over a fence and
they hollered for the man to stop, and he didn't and so, you
know, they shot.
Q- Did he say, indicate what steps he had taken to
try to apprehend him?
A. I can't recall. You know, like he was describing
a chase to me or something like this?
Q. Yes, sir.
A. I don't recall. I mean, I'm sure he probably did
Q- And I ask you to look at the gentleman sitting
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chase the fellow, you know, and holler at hini to stop, and I
have seen this happen before and, I mean, I didn't see it
happen in this case, but I mean, that's usually
Q. (Interposing) You have seen officers chase.
and before they usually shoot, I mean, they
have always hollered and telling the people to stop, '’Put up
your hands. You're under arrest" or 'Stop. This is tne
police."
Q. And chase them?
A. Right.
you hear any remarks about a boy, about the
victim being described as a boy?
biR. KLEUi: I'm going to have
to ob.'ject to this unless it comes from
the Defendant. I don't know who he is
asking about or who is supposed to have
said, "Boy," but I'll object to it unless
it's further identified, as being hearsay.
Q. (3y Mr. Bailey) All right. Now, the officer you
saw upset, did he indicate he was the officer who had shot th3
boy?
A, I don't know. I don't recall if he was the one.
you know,
Q. Was any other officers as upset as tnis one you
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describsd?
you know, would have been the officer that fired the shot, but
he might have said that — about, jou. know, this fel_ow being
so young.
I think that was what, you know, he was really
upset about, you loiow, because the fellow that did get shot
was such a young — you know, he was young. I don't recall
exactly — I don't think he was but about fourteen or fifteen
years old, or something like this. He was a big boy, yu know,
big for his age, but he was yo'on̂ . I think he was — I can
remember about five feet six, five feet seven.
Q. All ri^ht.
A. — maybe in height.
Q. All right. Now, cne other question. V.'hat was the
position of the body of the victim when you saw him?
A. Weil, he was laying dov/n and he was rolling, kind
of rolling a little bit, but it was close to, I think, a
wooden fence, as best I can remember.
Q. Do you recall v;hether or not ha tried to get up or
move other than rolling?
A. No. He v/as just, you know, really hollering. The
child was in a state of shock I'ra sure from all that
A. No, no. You know, I guess I would assume that he,
happening.
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To the best I can remejn’oerj I think, he was holding
his head and just thrashing about on the ground and rolling
around.
Q.
A.
Q.
A.
don't know.
Anybody try to restrain him?
My partner and I.
I mean be.fore ya'll took charge?
I don't — I don't know. I don't think so.
Q- VJhat about the black officer? You say there were
two black officers on the scene?
A. I think. I don't really recall. I do remember
there was one black officer there that was terribly upset.
And I don't recall if it was — I don't remember.
I'm not one for faces anyway, and I don't
remember if it was this officer or not. You know, I don't
know. I do know that there was a black officer there and he
was upset, you know.
Q- Do you know whether he tried to administer treat
ment or anything of this sort?
A. Vlell, I couldn't tell. I mean, I'm sure, you
know, he would ha'/e tried to do something for the fellov;, but
there was really nothing, you know, he couldn't have done too
much for him, I don't think, other than just try to calm him
dovm and keep him from hurting himself any further, you know.
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Q" But you didn'c see him. doing that?
A- No^ not when we got up. He — I thintc that is wher,
I rememberj you hnow, he was upset and that is when we — we
weren't on the scene very long at all, I don't believe.
We just stayed — all this happened just, say, in
a matter of a couple of minutes, two and a half, maybe three
minutes at the most oi us getting to the scene, you Itnow,
trying to find out what, you Icnow, a short instance of what
had happened and getting the fellow on the stretcher and on
the way to the hospital.
Q- I ask you, to the best of your recollection, would
you use the pointer and try to point out where you saw the
body of the victim when you arrived on the scene?
A. Well, I think it was, you know, right close to the
fenced area here. I don't know how close the fence was in
relation to the house or anything, but it was this close to
the fence.
0,- Back fence?
A. Right. Well, what are you talking aoout? Like
this one? which way was the street running?
Q- Okay. This is 7o9 facing north. This is the back
of the house, and this is tne fence directly behind the house.
A. Well, I believe that is the fence where he was.
by moving around on the ground.
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rougnly?
A.
the most.
Q.
A.
Q.
Q. All right. Do you know how far from the fence
Just a couple of feet, just two or three feet at
Which side of the fence was his body?
On the side that the house was on.
All right. Now, in eransportini, young Garner to
the hospital, do you remember him constantly yelling and
hollering?
A' He hollered pretty mucn all the way to the hospital,
Like I said, I believe I was driving,. I wasn't in the back,
with the young fellow. I oelieve Williams was riding in the
back with him and I was driving that night.
I tnink, you know, he probably horlered some, I'm
sure, and he was still hollerin̂ ;j — he hollered some when he
got to the hospital, I think.
He did?
A. when we notified -- we were carrying aim to John
Gaston and we notified them to stand by to be ready for us, to
have the resuscitation room ready, you know. ’'We radioed
ahead, so they would be prepared for us.
Q- would you again mark on the scale where the body
was, to the best of your recollection, when you got on the
scene or v/here youne, Garner, I should say, was lying and
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roilin^? I believe you're going to need a pen.
A. I ohink roughly, you luiow, maybe here like that,
He wasn’t really far from the fence.
Q. I see.
I don’t know --
MR. DAYS: (Interposing)
Your Honor, would it help the record
if the witness just initialed that spot
on the exhibit?
THE COURT: Yes, it would be
helpful if the witness initialed. Thank
you,
MR. BAILEY; Your Honor, we
pass the witness.
THE COURT; Axl right. You
may cross-examine.
CROSS EX.LMIIiATION
BY Iffi. KLEIN:
Q. Mr. Cordero, while you’re down, if you'll just look
at the point vjhsre you initialed. You say that ts the best of
your recollection as to where the 'ooay was. Do you know
whether the body had been moved or not?
Well, there was rea.lly no way lor us to tell,
because he was, like I said, he was rolling around. I didn't
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9 Q. Did you see any blood 0 jn *-/ i"i ̂
10 A. Just, you knc w, ric,ht v/p.ers
11 Q. Right wnere he 'was .
12 A. At the time. Right, i t 'w a s
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notice any —
THE COURT: (Interposing,)
Can tns reporter near all rî ĥt?
Q. (3y Mr. Rlein) H you'll just face one reporter
while you talh.
Okay. I didn't notice, you know, diun't notice ix
he had been irioved any distance, you iuiow, other than just
laaybe a two or three foot area, just around where he was.
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Q . N o w ̂ S.^G.Xn.5 "b i f lxS
bion, it coula have been a little oit one way or the other,
as far as you rjaov;?
It could have seen on this lence here, as far as I
know. I just rercemoer a fence. You know, we juso — we reaix^
didn't pay tnat close attention to the details to it. He was
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very close to a fence, and it was a wooden fence. I believe
it was a wooden fence.
Q* Could it have been a chain link fence?
A. I think it wa.s wood at the time. I bdieve it was
wood.
Q- Be that as it may, that is not your job to go out
and investigate the scene, is it? You're more interested in
administering first aid to whomever is hurt?
A. Right. First aid.
Q- All right, sir. When you got there, this was
pursuant to a call that you received at your station, at your
fire station, is that correct?
A. Yes, sir.
Q- All right, and you are a part of the Memphis Fire
Department, is that correct?
A. Yes, sir.
Q* You may sit down. And you had a partner with you,
is that correct, too?
A. Right, a fellow T. L. Williams.
Q- All right, and hov; far were you from this scene,
in other words, your station?
A. Well, at that time I think the station had moved —
I don't know for sure, but I think we had moved into the new
engine house on Breedlove. That was at 688 Breedlove and what
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Q. Vollentine.
A. Vollentine. Okay. That is just — that is the
first big intersection heading north from the engine house,
so we weren't — like I said, it was inside of five minutes.
It could have possibly been less than that.
Q. All right. You don't know who made the call or how
the call came out, do you?
A. That could be checked with the fire alarm office.
I don't kno'W. I would think, just assuming, because I have
made calls similar to this before, you know, a shooting where
the police were involved or whatever. Usually the police or
the officers there on the scene would call for an ambulance.
That is usually the practice, and that's probably — I think
that might have been the v/ay this one came in. All this
stuff is on taoe out at the alarm office.
was the address?
Q.
A.
I understand.
And these calls come in like, "Meet the police at
such and such address on Vollentine, a shooting call." I
don't know for a fact but, I mean, it could be checked.
Q. Do you make a report or a record of each call that
you —
A. (Interposing) Just a little ticket for the city's
records, you know, for the billing records. It's just a name
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and an address like this.
think Mr. Bailey asked you how many officers were present.
Do you remember how many, or he asked you if one
was black or you indicated you thought there mi^ht be two
black officers. Do you remember how many officers were there
at the scene when you arrived?
A. No. I remember some arriving. As we were leaving,
some more were coming up as we were leaving.
Q- I see.
A. But all I can recall -- really I think there were
just two.
Q' Just two when you got there? Were there any other
people around?
A. No one in back. I think there were some people out
front, just some neighbors or w'hatever, people on the street
who stopped — any time an ambulance or a police car drive up,
you have got a crowd.
Q* All right. How long were you actually there on the
scene before you took the subject —
A. (Interposine,) Again, we didn't spend much time on
the scene, probably three minutes or just — I i/ouldn't say
four minutes. Two and a half, three minutes, something like
that, probably not any longer.
Q- Ail right. And so when you got to the scene, I
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the wounded subject?
A. Right. He was breathing on his own when we got
there.
Q* So you were mostly concerned with administering to
Q. All ri-iht.
THE COURT
MR. KLEUI,
Anytning further?
That is all I have.
Your Honor.
MR. BAILEY: That is all. Your
Honor.
THE COURT: Mr, Cordero, if you
were not in your new station on Breedlove
and you were at your former station on
Faxon, is that the station that is --
THE WITNESS: (Interposing)
On the corner of Faccon and Decatur.
THE COURT: Three or four
blocks from the old water works?
THE WITNESS: Yes, sir. It’s
right behind the Pic Pac Store at Jackson
and Decatur.
THE COURT: All right. Anything
further?
MR. KLEIN: No, sir. 2 3 0
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THE 'WITNESS: Yss, sir.
MR. HAILEY: Your Honor, again,
we are goino to talcs a couple of other
witnesses out of burn.
THE COURT: All right, sir.
MR. BAILEY: would you aslc Mr.
Anderson?
THE COURT: Any reason why Mr.
Cordero can't be excused?
MR. BAILEY; ilo, sir.
THE COURT: Thanic you.
MR. BAILEY: Your Honor, I really
wanted the Anderson from the hospital. This
is another Andersen.
THE COUTIT: All right. We’ll
call you later, Mr. Anderson. .
Whereupon,
Aim STEPP.
after first being duly sworn, was examined and testified as
THE COURT; Thanic you.
follows;
DIRECT EX.\MINATION
BY MR. BAILEY:
Q. State your name, please
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A.
Q.
A.
Q.
A.
Q.
A.
Q.
Ann Stepp.
S-t-e-p?
Two p's.
Miss Stepp, your employment?
I work for the City of Memphis Hospital.
In vjhat capacity?
Assistant director of the medical record department
And are you familiar with the books and records of
the medical record department?
A. Yes, I am.
Q. And are they kept in the normal course of business?
A. Yes, sir.
Q. In recording medical records?
A. Yes, sir.
Q. And do you have the medical records on Robert
Eugene Garner?
A . Yes, I do. On Edward Garner?
Edward Garner, I'm sorry.
Yes, sir.
And were those records also kept within the normal
e of business?
Yes, they were.
Did you bring those records with you?
Yes, I did.
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A.
Q.
cours
A.
Q.
A.
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Q* And would you read those records in reference to
his admission of October 3 and his discharge?
A. Ohay. You want his diagnoses? I have several
things here.
Q. Yes, the doct;ors -- the observation^ his diagnoses,
his history, his —
A. (Interposing) You want me to read the discharge
summary, that includes a final dia;gnosis?
Q. All right. Read the discharge summary.
A. Okay. "This young black male was brought to John
Gaston Hospital emergency room the eveninb of 10-3“7^> with
a history that he had been shot in head by the police in
circumstances which were unknovmi to me.
"when I first saw this young man, he was lying in
the emergency room with a gunshot wound on the back of the
head. There v/as a lot of blood on the sheet. He was moaning
some, lying on the bed.
"He was bilaterally decerebrate. The pupils were
mid position and fixed. Head movements appear to be intact bi
laterally. His respirations were approximately ten per minute
and quite shallow. His pulse was about 6o and regular.
"The X-ray showed a gunshot wound on the back of
the head that appeared to be transcerebral. I thought on the
pre-operative X-ray examination there might be a superior
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surgery in a very critical condition.
attempted to do a craniotomy and repair the
gunshot wound to the head. However, he expired on the table
soon after we got surgery started. At surgery, we did find an
extensive skull injury on the back of the head, and in addi
tion, a transected superior saggital sinus.
".̂ .dmission diagnosis -was gunshot wound to the head.
Discharge diagnosis, same with extensive cortical injury and
superior sag tal sinus transection. Operative and special
procedures, attempted repair of g'unshot wound to head through
craniotomy.''
Q. Okay. Will you identify that document you have
just read from?
A. This is the discharge S’ummary.
By whom?
By Dr. Howard Morgan.
Was he the attending phi'sician?
He v/as the resident at the case.
Does it have a form number?
It’s form number i'rOA.
Do you have an extra copy that you could provide
saggital sinus injury in addition. The patient was taken to
Q.
A.
Q.
A.
Q.
A.
usV
A. Well, not with me. This is —
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Welij the Cleric can maice a photostatic
copy so that idiss Stepp niay retain her
permanent record, cut the Clerk may make
a photostatic copy end the copy may oe
marked as an exhibit in this cause.
MR. BAILEY: Very well. Would
Your Honor have the copy marked as cne
next exhibit?
THE COURT: Yes, sir.
THE CLERK: lo's Ho. 10.
('Whereupon, the said document
was marked as Exnibit 10.)
MR. KLEIH; Your Honor, I
realize these are ousiness records. I
w’oula make an objection on the theory
that it v/as a doctor who v/as giving this
report, and oi course, I don't have an
opportunity to cross-examine that doctor,
as sucn.
So granted it is part oi her
business records, but for the reason that
I can't cross-exaiZine the doctor's statement
or his diagnosis, then I would object to the
THE COURT: (Interposing)
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THE COURT: Objection will be
overruled and the exhibit will be introduced.
MR. BAILEY: We have no further
questions of this lady.
THE COURT: You may cross-examine,
Mr. Klein.
CROSS EX.̂ iÎ IATION
BY MR. KLEIN:
Q. Miss Stepp, you were reading from the discharge
summary, is that correct?
A. Yes.
Q. Now, this was prepared and signed by Dr. Howard
Morgan, is that correct?
A. Right.
Q. You, of course, had nothing to do with that and
were not present and know nothing about it, is that correct?
A. No, I did not.
Q. Are you familiar with any of the terms that are
used in this report?
A. As to their meaning, not really.
Q. Okay. Again, I was referring to the discharge
diagnosis where it says ib's the same as the admission
diagnosis, vmich is gunshot wound to the head and then it goes
admission.
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on to say that there v;as extensive cortical injury and superior
saggital sinus transection. Do you knovr what that means?
A. No, I really don't.
MR. KLEIN: I have no farther
questions.
MR. BAUSY: Your Honor, I
might observe that we plan to call Dr.
Francisco, who can define that termino
logy.
THE COURT: In any event, this
record is admitted and Miss Stepp, aXter
the next witness is called, the Clerk
will have an opportunity to go with you
to the Clerk's office ana .make a copy
so that you can retain your record and
the photostat will be introduced as the
next exhibit number.
You may call your next witness.
MR. BAILEY: Mr. Anderson.
Whereupon,
LE^DELL Â TDERSON.
after first being duly sworn, v?as examined and testified as
follows:
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D I R E C T E X A M I N A T I O N
B Y m . B A I L E Y :
Q* S t a t s y o u r n a m e t o t h e C o u r t s p l e a s e .
A. L e S d e l l A n d e r s o n .
Q- M r . A . n d e r s o n , vjhere d o y o u r e s i d e ? W h e r e d o y o u
l i v e ?
A. 7 3 9 V o l l e n t i n e .
Q. A n d y o u r a g e ?
A. F i f t y - f o u r .
Q. M a r r i e d ?
A. Y e s .
Q- A l l r i g h t . I s 7 3 9 V o l l e n t i n e w h e r e y o u r e s i d e t h e
s i t e o r t h e p l a c e w h e r e y o u n g G a r n e r w a s s h o t b y t h e p o l i c e ?
A. Y e s . Y e s j s i r .
Q- A l l r i g h t j a n d vie r e y o u p r e s e n t a t t h e — y o u
w e r e n ' t p r e s e n t a t t h e a c t u a l s h o o t i n g , w e r e y o u ?
A. N o , s i r .
Q- Y o u g o t h o m e a l i t t l e l a t e r a f t e r t h e s h o o t i n g ?
A. R i g h t .
Q. A i l r i g h t , a n d a f t e r y o u g o t t h e r e , d i d y o u g e t a
c h a n c e t o s e e t h e y o u n g b o y w h o w a s s h o t ?
A. T h e y v;as f i x i n g t o p u t h i m i n t h e a m b u l a n c e w h e n I
r o l l e d u p .
Q. I s e e . A n d y o u r h o u s e h a d b e e n b u r g l a r i z e d , h a d i t
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A. Rie’nt.
Q- As a matter of factj v;as there evidence that some
body had gained forceful entry into the home?
A. Right.
Q* What hind of evidence -was there?
A. W'ell_, the window was brohen cut and ohe door
hadn't been broken in̂ so somecody had to go through the
winaow to open tne door.
Q. You say the door had been broken in?
A. The door hadn't been broken in.
Q. Had not been broken in.
A. The latch was still on it, but when I went in
there it was open, so I assunea somebody opened the door from
the inside.
not?
Q-
door?
A.
Q.
v•̂as there no si^n of any instruments used on the
H o .
And the door was completely intact?
A. R x ^ n c .
Q. What about your window that you — which windo'w are
we talking about?
A. The back window next to the bedroom was broken out
Q- All right. I ask you to step down just a second, if
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Wait a minute. I guess you do have to stand on
that side so we can see the window and all.
Now, assuming that this represents your house, that
this is 739 Vollentine where you live —
A. (Interposing) Right.
Q. (Continuing) — what woxild this object be, this
building?
A. That would be facing Vollentine and the back would
be back that away.
Q. All right. I understand that. Now, what is this
building, I suppose, is really what I'm asking you, that small
building on your premises?
A. Right. That vfould be —
Q. (Interposing) \iThat do you use it for?
A. The outer house.
you would. Would you stand over here where the Court can see?
Q.
A.
Q.
Okay.
Right.
And on the night of October 3rd of 197^^ did you
have a wire mesh chicken wire fence across there?
A. Right. Three foot high.
Q, Three foot high, and would you point to it?
A. That would be — the fence would be here
(indicating).
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1 Q. All right.
MR. KLEIIT: Can v;e get him to
mark that?
MR. BAILEY: Your Honors for
the benefit of the record, we're referring
to the model Exhibit 8 — I mean. Exhibit 6,
I'm sorry.
THE COURT; Exhibit 6 scale model.
Q* (3y Mr. Bailey) Would you put your initial right
by that chicken wire fence that you mentioned?
All right. That is good enough. Okay.
MR. BAILEY: Would Your Honor
have the record show he has put his
initials by —
THE COURT; (Interposing) Yes, sir.
Q- (By Mr. Bailey) Nov;, did you have a light on your
back porch that night?
A. It wasn't on.
Q- Do you know anything about the lighting conditions?
A. The light would be on the kitchen, on the back door,
Q* You leave any other lights on in the house?
A. No. It was day when I left. VJe was supposed to go
right back but my car quit on me.
Q- I see. And of course, there is a driveway down
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here?
A. There is a driveway and that is the outer house.
Q. All right. What is this?
A. That is a wooden fence .
Q. All right.
A. It’s about that high.
Q- All right. And what is this?
A. That is —
Q- (Interposing) Is that the chicken wire fence that
runs the length of the back of the house?
A. That is an ordinary big fence. I think it was
about eight feetj I think.
Q. You never measured it?
A. Ho, I never measured it. It comes through by the
other property back of the house. It was about eight foot.
Q. That is Miss Sarah's —
A. (Interposing) Miss Sarah, right.
Q. (Continuing) — property?
A. Right.
MR. KLEIN: It's whose property?
MR. BAILEY: Sarah Jackson.
THE WITNESS: Hiss Jackson.
Q- (By Mr. Bailey) And that is her — the front of
her home faces Woodlawn, does it not?
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Q.
A.
A.
And Woodlavjn intersects v;ith VcRentine?
Right.
Right.
All n^ht. And she ov.̂ns all of that property all
the way —
A. (Interposing) All the way back to —
Q- (Interposing) Woodlavjn?
A- To the house on the other side of mine.
Q. And doss that fence run all the way back down to
Woodlawn?
A.
Q.
A.
Q.
Ail the way back.
I see .
— from V/oodiawn on back down to —
(Interposing) Do you recall whether there was any
small grass or large grass, and what the condition of the
area was right behind the fence? Behind your back yard? Well
that is — is there a garden back there?
A. There is a garden back there and pecan trees and
apple trees, and a pear tree back there growing in her garden.
She has a garden.
Q. Is it kind of clear back there or is it brushy?
A. It's kind of brushy.
Q. How much brush is it?
A. Well, the trees, you know. It's mostly shady back
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there.
Q. Small brush or large brush or what?
A. Just small trees.
Q, How about the brush? Small brush?
MR. KLEIN: I'm going to
object to the leading questions. Your
Honor.
A. (3y the witness) I don't recall no brush.
Q. You don’t recall about the brush?
A. I don't recall no brush. Trees are back there.
Q. All right, now, does that model pretty much —
does that accurately show the condition of your premises at
the time of the shooting on October 3rd?
A. Right.
Q. It shows all of the fences?
A. Right.
Q. Even shows that little area running down the side
of the storage house?
A. Eight.
Q. And it even shoves the little area on the side over
in here, I'm asking?
A. Right, That is right. This is another house
sitting back over on that side ''f the fence.
Q. And I ask you, direct your attention to the front
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of this storage house on the model where we have got a little
small fence here.
A. Right here. Right in between here. YeSj right.
Q- So is there any way out or any gates or anything
all the way in this enclosure at all?
A. No, not unless you go over that fence.
Q. That is the only way out?
I aslced you to bring the chicken wire fence. Is
it weak or strong wire?
A. It's little old chicken wire. It's weak. It's
weak wire.
MR. BAILEY: I trust Your
Honor can take judicial notice of
chicken wire and I don't have to
bring it? Very well. I have no
further questions.
THE COURT: You may examine.
Mr. Anderson, if you vjill resume the
stand up there, please, sir. All right,
Mr. Klein.
CROSS EXilMINATION
BY MR. KLEIN:
Q. Mr. Anderson, what is your first name again.
please, sir?
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1 A.
Q.
A.
Q.
A.
Q.
Leedell Anderson.
How do you spell that first name?
L-e-e-d-c-l-l.
Okay, and what is your wife's name, please?
Louvinia Anderson.
Louvinia. And ya'll were both living there back
in October of 197^, is that correct?
A.
Q.
A-
Q.
A.
Q.
A.
Q.
A.
Q.
Yes, sir.
All right, and that is 739 Vollentine?
Yes, sir.
All right, and do you iinow a Daisy bell Statts?
Daisybell?
Yes,
Daisy stays next to me.
Right. That is a neighbor of yours?
Yes, sir.
Do you know a lady by the name of Haywood, I
think, Ruth Ann Haywood?
A. Yes. She stays right across in front of me.
across the street.
Q.
A.
Q.
A.
All right. Is she still there, or do you know?
No. She has been away from there.
Does Mrs. Statts still live in the neighbor.hood?
Yes.
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one of therp. lives right nextdoor to you?
A. That is Daisy.
Q- Miss Statts lives ri£,ht nextdoor to you. And Mrs.
Haywood lived across the street. Would that oe --
A. (Interposing) Right.
Q- Ho'Wj you said you had been away from the house
that day, is that correct?
A. Yes, sir.
Q. You and your wife?
A. Yes, sir.
Q. What time did you leave the house that day, do you
recall?
A. About three o'clock, something like that.
Q- She still lives there. All rights nov; which one -■
Q. In the afternoon?
A. Right.
Q. Ail right. Doss anyone else live there besides you
and your wife?
A. No, sir.
Q. All right, and so ya'll left and you got back
about what time? Do you remember?
A. Well, it was turned dark. I imagine it was around
seven somethin^, because iu was —
Q. (Interposing) Well, no'w, I think you said a minute
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i-W .;”
A. (Interposing) They was putting him in the
amoulance.
Q. Putting Mr. Garner in the ambulance, is that
correct?
A. Right.
Q. All right. Do you remember whether there were any
policemen around there when you ,;̂ot home?
A, Yes.
Q. Do you remember how many policemen were there?
A. It was about three in the house and it was one
standing back there by the outer house, and it was one in
1‘ront, front of the house to keep anybody from going in there.
Q. All right. Did you go through your house just as
scon as you got home?
A. No, sir. It was about — it was near about an
hour before they let me in.
Q. Well, there were police out there investigating
your house?
A. They let my wife in.
Q. They let her in?
A. Let her in when we got there, directly after we got
there.
ago that when you got there they v/ere taking —
Well, now, when you get in, was the —
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1 (Interposing) They didn't let her in when we first
;ot to —
(Interposing) They let your wife in when sheQ.
first —
A. (Interposing) Koj sir. They didn't let her in
when we first got there.
Q- All right. But she went in before you did^ is
that right?
A. She was in about AO minutes before I --
Q- (Interposing) All right. Was it you just didn't
want to go in or they wouldn't let you in?
A. They wouldn't let me.
0,- I see. But how long was it before they let your
wife in the house?
A. I i.tagine about 20 minutes, somewhere like that,
before she —
Q- (Interposing) All right. What did you notice
aoout the house whe.n you went inside?
A. All the stuff was out on the floors, all the
drawers was pulled out, and stuff was scattered all over.
That is all I remember.
Q- All right, viell, it wa.s oovious somebody had been
in there and ransacked the house, would that be what happened?
A. What happened.
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Q. All right. Hcvj aany rooms were upset, so to speak,
or where there had been drawers out or somethin^ had been done
to the house?
A. One that I paid any attention to, and that was my
wife's room.
Q. All right. No other room was disturbed as far as
you remember?
A. No, sir. The first I had some old coins in there
and when they did let me in, I went to them. They were still
there.
Q. The old coins were still there. Was there anything
missing that you Icnow of in the house?
A. Ifell, my wife's rings was missing and she said she
had a little old purse in there, a pockatbook or something or
other. She had two five dollar bills in it.
Q. All right. Was that missin^?
A. Yes, sir.
Q. Anything else that you know of that is missing?
A. Not that I know of.
Q. Did you later recover the ring or the purse v/ith
the two five dollar bills in it, or did your wife?
A. They never did recover the ring. So they give her
the ten dollars up here somewhere.
Q, I see. What about the purse that was aid she
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A. I don't know. She just told me about, she said she
got her ten dollars back.
Q. All right. Now, how long have you lived at that
house on Vollentine, Mr. Anderson?
A. About seven years.
Q. Seven years. Has this back fence — and I'll call
it a chain link fence that I'm pointing to -- was that there
when you bought the house?
A. Yes, sir.
Q. All right, now, how tall woula you say that fence
is?
ever get the purse bacic?
I think it's about eight foot.
How tail are you?
About si:<; feet.
Q. Well, novi, can you stand up to the fence? Is it
taller than you are?
Q.
A.
Q.
A.
Q.
Yes, sir.
How much taller is it than you?
I imagine it's about two feet.
Are you sure about that?
A. Right at it. I didn't pay too much attention to
it, how tall, but I imagine it was eight feet wide, it looked
like to me.
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Q. You didn't pay much attention to it. All right.
Now, this property behind, you said that belonged to — what
is the lady's name?
A. Miss Sarah Jackson.
Q. Miss Sarah Jackson. And her house laces what
street?
A. It faces 'Jocdlawn.
Q. All right, now, wnich direction is Woodlawn? Would
that be down here west of here or would it be —
A. ■ (Interposing) It would be east — I mean, west of
my house.
Q. Be west of your house?
A. Right.
Q. All right, and so you say this is ner. Now does
she raise a garden back there? Is that what she does in the
summer?
A. Yes, sir.
Q, All right. Now, which part of the back yard does
she raise the garden in? Would it be this section, which is
the section right next to the chain link fence which separates
your house from —
A. (Interposing) Thao's right.
Q. All right. What about the secona section? Do you
know what she raises back there, or if she raisas anything?
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the garden, pear trees and apple trees.
Was anything left from the garden when this shoot
ing took place? In other words, were there any growth back
there from the garden in October of 197̂ 1?
A- No, sir. I never heard her saying anything about
it.
Q* VJhen I say like, you Icnow, how corn stalks will
stay in the garden or how you mit̂ ht have some beans or peas
or something. Sven after you have already picked them, there
would still be some brush or — was some of that still back
there in the back in October?
Yes, sir. It was collards and things back there.
All right. Do you ever have any occasion to go
back in her back yard?
A. It's some pear trees right in the next section from
A. Yes, sir.
Q. All right
A.
Q.
A.
Q.
thing?
A.
Q.
No, sir.
Are you friendly with her?
Yes, sir.
But you don't have any reason to go back for any-
No, sir.
Okay.
MR. KLEII'i; Your Honor, excuse me.
I think that is all, but let me check.
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Q- (By Mr. Klein) Mr. Anderson, you were talking
about one of bhs windows being broken and I think you said
the back door — was it the back door that was open or un
locked?
A.
Q.
door?
Yes, iz v;as --
(interposing) VJas it damaged in any way, the back
A. No, sir.
Q. You can open it from the inside, I guess, without
a key,■is that correct?
A. It looked somebody had took a little job and broke
that glass on the inside, and I say that because glass was on
the outside.
Q. I see. So then whoever did whatever they did, they
used some ooject to do it with? In other words, it's not a
matter of just turning a knob or a latch and unlocking —
MR. BAILnY: (Interposing)
Your Honor, now I'm going to object to
that. This calls for speculation on the
part of the witness.
THE COURT: I'm going to
overrule the objection. You may examine
him as to the basis of his conclusion, if
any.
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observed the glass on the outside, and
he drev.' a deduction from that, and you
aiay cross-examine him in that regard.
Q- (By Mr. Klein) All right, and your deduction V'̂as
that somebody haa taken something and broken the glass or
pried the back door? Is that what you're sayin„?
A. No, sir. Couldn't nobody get their hands through
the door, out the glass was -- it looked like it was
shattered from the inside and laying over into the other glass
from the inside and on the outside.
Q. Had the door been pried open?
A. No, sir.
Q. How was it opened? Could you tell how it was
The witness stated that he
opened.'
insiue.
It was opened by the latch from the latch on the
Q. I see. I see. Nov;, the v/indows, were any of the
windows — I'm not talking aoout the door now. I'm talking
about any of the other windows in the house. Nere any of the
other windows broken, and if so, where were they?
A. The one in my bedroom.
Q. If you would, please, sir, step down here and d>.ist
show us where your Dsdroom is and where that window would be.
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Q- All rigat. The back part oi the house over on the-
A- (Interposing) This window up here was the one that
was broke out.
Q* All right, that would be over on the west side of
the —
A. Right there.
A. (Interposing) Next to the top window.
Q- Ail right. Is that a tearoom back —
A. (Interposing) There's four parts to that window.
Q. Four parts to that window?
A. Yes.
Q. Ail right. That is your bedroom, is that right?
A. Yes, sir.
Q. Ai-1 right. And what part of the window was broken
out?
A. That one right there, and the one next to the top.
Q- Do you have a top half and a bottom half of the
window? Is that —
A. (Interposing) Yes. It's the top part and the
bottom part slide up. It's ^ot two short pieces and —
Q. (Interposing) I see. Do you have any sort of
grill or anything on tne outside of that window?
A. Yes, sir. It Just covers naif of it.
Q. Just covers the bottom half, is tnat right?
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1 A. Yes.
Q. So ii somebody uroke in, he wouia have to come
through the top^ is that righb? ..'as that window unlatched or
couid you tell whether the window had been moved out or pulled
aown in any way?
A. NOj sir. It hadn't oeen pulled down.
Q. All ri^nt. Was Lt big enough x'or somebody to get
through where it 'was broken?
A. They would have to be mighty small to get through
there.
A
house?
A.
Q.
A.
Ail right. Were any other windows broken in the
HOj sir.
Just the one by your --
(Interposing) Just the one in my bedroom ard the
one at the door.
Q. The one at the door. Okay. How many rooms have
you got in that house?
A. Four rooms .
Q. Four rooms. Okay. Where is the kitchen in the
house?
A. Fight there.
Q. Ail right. Are you pointing to the back of the,
house now, over on the east?
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1 A.
O n " c n e b a c n o v e r b c v ; a r a t h e e a s t s i a e ,
M I \ . K L l I h : O i C a y . T h a t i s a l l
I h a v e .
THE CCUHT: Any further
q u e s t i o n s ?
i 4 R . B A I L u Y ; Y e s , s i r . Y o u r H o n o r .
T I iL C O U H T : t o u x a y o u p l e a s e
r e s u . t e t n e s t a n d , M r . a i i d t r s c n ? T h a n K y o u .
R L - 0 I H E C T E X A I4 ? H A I ION
B Y M R . B A I L E Y :
The kitcnen is on tne back.
I'Y•JC,« Mr. Andsrson, I show you Exh
is t*n i 5 tne cnrc--6n wire fence was
Ji.. rnat is it.
Q- Is that the exact -- L mcan.
same fenc£?
.1. mat * s the same.
Q- jl3Ut X 0 caae all the way aero
A. It come on across thr". v* ,'-i
Q. Oxay. Vi as it we ax .vire or s
r> 11 w a 3 a oaa part of it riiih
rea son I taken it down, because G >va
Q. Do^s v.'ere ju.npinti ever the --
î Interpcsir-e,; Over this here part rî ,ht here, next
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1 to the fence.
Q.
Q.
there?
Was it sagged liiie that on the —
(Interposing) It was sagging in there.
Vlas it sagged liice chat on October 3rd?
Right.
It caine ail the 'way across but it was sagging right
a* It 'Was sagging m snei c ■
Q. And 'was this pretty ir.uch the exact condition it 'was
on October 3rd that is shown in Exhibit 2?
A. Right.
Q. Did you ever go back and forth over this fence
yourself?
A. NCj sir.
Q. You never did? I'ni talkin^ about the chicken wire
fence,
A.
Q.
A.
Q.
No, I never did go.
Your 'Wife?
Not as I know of.
Your neighbors?
A. Neighbors might be coming over there. They used to
han̂ ;, out clothes over there sometimes, used to.
Q. I b e l i e v e y o u s u b s e q u e n t l y h a v e t a k e n this whole
l e n c e d o w n , h a v e n ' t y o u ?
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A.
Q-
A.
Correct.
And put another one ucj a wood fence?
Right. It's about five feet high.
MR. BAILEY: I have no further
questions.
THE COURT: Anything further?
MR. KLEIH: Your Honors this
is something that really vjculdn't be
re-diroct. It’s something I omitted, if
Your Honor would let rae asit him about it?
THE COURT: All right, sir.
Q. (3y Mr. lilein) Mr. Anderson, I'm going to show you
some photographs which depict the inside of your house and ask
you if you can identify these as being the inside of your
house, and the first one I'm going to show you is a picture
with a 'windo'w and it shov/s — may I approach him. Your Honor?
TliE COURT: Yes, sir.
Q, (By Mr. Klein and continuing) — window broken and
I'll ask you if you can identify that?
A.
Q.
A.
Q.
A*
Yes, sir.
Is that your ho'use?
Yes, sir.
Is that the way the windcvv v/as?
Right.
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1 Q. All right. What room is that. Mr. Anderson?
A. That is my room. That is the back room.
Q. Is tiiat, the back room ohat is over on the rear.
toward the west side of' the house?
A. Right.
MR. KLSI2J: Your Honor, I'a
going to ask that that be ;nade an exhibit
to his testi.Tiony.
THE COURT: All right. Let it
be marked the next exhibit number.
THE CLERK: Il 's No. 11.
(Whereupon, said document was
marked as Exhioit No. 11.)
Q. (By Mr. ivlein) I'm going to ha.nd you another one
ana ask you if you can identity that, please, sir?
A. Yes, sir.
Q. V/hat is that?
A. Tiiat is my wife's bearoom.
Q. Loes she have a separate bedroom from yours?
All right. What sice of the house is your wife's
bedroom on?
A. That is in the front room, west, next to the front
room.
N 0 'w, would that oe up in the front of the house?
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That would be the —
Q. Or wouIg it be toward the east side or tovjard the
west side?
A. (Interposing) Yes^ that is right.
A. It would be in the west side.
Q. On the same side of the house as your back bedroom?
A. Right.
Q. All ri^ht. Is that the way her bedroom looked
when you came home?
A. Yes.
MR. KLEIK: Your Honor, I'll
ask that that be marked an exhibit.
THE COURT: All right. Let it
be introduced as Exhibit lio. 12, I believe,
Mr. Clerk.
(Whereupon, said document was
marked as Exhibit No. 12.)
Q. (By Mr. Klein) I hand you another one and ask you
if you can Untify that, Mr. Anderson?
A. This is the same room.
Q. Is that the same room?
Q.
night?
Is that the way it looked v/hen you came in that
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MR. KL2IR: All ri^ht. I'll
aslc that be .narhed an exhibit^ Your Honor.
THH COURT: That v;ill be
introduced as Exhibit No. 13.
('whereupon̂ the said document
was roarhed as Exhibit No. 13 •)
Q- (By Mr. Klein) And I'll hand you another one and
ash you if you can iintify that^ please, sir?
A. That is the same room.
Q. You keep saying, "the same room". You're talking
aoout your wife's bedroom, is that right?
A. Yes.
Q. Is that the way it appeared when you came home on
the evening of Octocer 3j i57^?
I'll ask that tnat be made an exhibit, too.
THE COURT: This is tne same
room as in the previous exnibits but
different?
HR. KLEIN: It's the same room.
It jusb shows a little different —
THE COURT: (Interposing) All
right. Let it be marked, she prior one,
13A ana this one, 13B, Mr'̂ Clerk, please.
A. Rignt.
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(Whereupon, the said documents
were marked respectively as Exhibits 13A
and Exhibit 133.)
4 Q. (3y Mr. Klein) I ask you
5 one, Mr. Anderson?
6 A. This is the kitchen.
7 Q. Is that the kitchen?
8 A- Yes, sir.
9 Q' Now, is that the insiae o
10 kitchen?
11 A- This is the inside.
12 Q. That is the inside?
13 A. No, this is the outside.
14 Q- But that is the door that
15 of the house?
A. Right.
Q. And if you open that aoorj, you walk into the
kitcnen, is that correct?
A. Right.
Q. All rignt.
A . If I open it, it opens back yonder.
Q , All right. In other v;ords, open it, of course,
goes into she inside of the house, as you open it, is that
correct?
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Q. Is that uha way It: would have appeared on
OctoDer 197^?
A. Yes.
Q. Ail right. I ash that that oe aade an exhibit.
TEE COURT; Let it be
introduced.
THE CLERH: It's No. 14.
THE COURT: Yes^ sir.
(whereupon, the said document
was marked Exhibit No. 14.)
Q. (By Mr. Klein) I'm going to hand you one more, Mr,
Andersen, and ask you if you can ide.ntify it?
A. Right.
A.
Q.
Q.
A.
Q.
taken off
This is my bedroom.
That is the window to your bedroom?
Yes, sir.
Is that the inside or outside of the house?
It would be the outside.
All right, and there is a screen that has been
21 A* The screen was taxen off.
22 Q. That screen was taken off, is that correct, sir?
23 A. Yes.
24 Q- Ail rigno. So that is tne way io would have
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A. Well, the cans and the garbage cans v;are over here
soiaewhers when the picture was taken.
Q. But there is a garbage can that sits 'underneath
that window?
A. Yes, right over there soraewhere.
Q. Aul right, sir. I'll ask that that be itade the
next exhibit.
THE COURT: Let it be marked
as Exhibit No. 15.
(Whereupon, the said document
was marked as Exhibit No. 15*)
MR. KLEIN: Your Honor, that
is all 1 have. I vjoula ask they be passed
for the Court's viewing.
THE COURT: Is there further
examination in lie>ht of this last line of
inquiry, Mr. Bailey?
MR. BAILEY: Your Honor, one
omitted question.
THE COURT: Ail right.
Q. (By Mr. Bailey) I show you Exhibit Mr. Anderson
and ask you doss that in any sort of way resemble the condi
tions of the yard back behind your house on October 3rd of
appeared on October 3, 197^? Is that correct, sir?
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197^?
That is ri^ht.
Q. Is that pretty huch the way it locked back there
on Octooer 3rd?
You're shakinĵ your nead. You have to —
A. (Interposing,) Yeŝ , sir . That is right.
MR. BAILEY: I nave no further
questions.
THE COURT: All rii,ht. Any-
things further? Thank you^ Mr. Anderson.
You may step down^ sir.
Excuse me. Mr. Anderson, let
me ask you one question . Hov; far is
Tully from your house on Vollentine?
THî i'/ITIiESE : Tully?
THE COUliT: Tully Street.
THE WITl̂ ESS: One block and
a half.
THE COURT: Thank you. You
may step down.
im. BAILEY: Your Honor, may
I look in the Jury Room and see --
THE COURT: (liiterposing) Yes,
sir. Mr. Bailey, we have planned to go for
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1 about ten or fifteen minutes, so you can
plan on that v;ith reyard to whether you
can complete your examination of the next
witness or not. I'll interrupt if we don't.
MR. BAILEY: Very well.
Your Honor, it seems as if we
have run out of witnesses.
THE COURT: All right, sir.
We'll take a break at this time ratiier
than later.
Gentlemen, I note that — and
we'll excuse you all. We have the la'wyers
here on this other matter and ask please
that you return so that v;e can resume at
1; 30.
We'll stand recessed in this
matter until 1:30, and I don't know any
reason v/hy you can't feel that your things
on the table will be safe without having to
remove them.
MR. BAILEY: Very well.
(Whereupon, at 12:10 o'clock
p.m., the Court was recessed for lunch.)
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AFTERNOON SESSION
THE COURT: Arc we ready to
prcceea, Mr. Bailey and Mr. Bays?
MR. BAILEY; Your Honor^ we
have one ininor probiem tr.o.b has arisen.
VJe iiled our subpoenas on Tuesday and the
marshal apparently has had some difficulty
.̂ ettin̂ all of our ioll;s served^ and I have
scecial concern e.bout the failure of Captain
Coletta^ who has apparently not been served,
and we planned to' £o forward with the
denositien at this time, but we had planned
to put him on immcdiatej.y aiterv'jard, and
had ordered him, at least requested of him,
to brine certain photos;raphic equipment and
slide equipment, and I have looked out there
and I haven't seen him, and I don't lenovr
what tiie state of affairs is relative to his
appearance
THE COURT: Boo,-, the Befcadant
have any information?
MR. ICLEIN: Your Honor, I do know
this. I have him under subpoena also.
He is out at the training center, at Armour
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A c a d e i r y .
I l-mow that he was out of tovin
I'orj I think, one or possibly tv’o weeks,
and I had issued a subcotna for him and I
called and talked to his secretary to have
her to be sure and tell him that I vianted
him. here. I had subpoenaed him. for tomorrow.
Now, I did not jenow Mr. Bailey had
subpoenaed him. I'll certainly cooperate in
o.ny way I can to ^et him here because whoever
puts him on, I think the Court is iyoing to
have trie benefit of his testimony, and that
is i:hc way we want it, and I don't see any
problem.
I
As I say, I had him lined up for
tomorrow. I haven't talked to him since he
came back. 1 understand he would be back
today .and whether he tiot Mr. Bailey's
subpoena or not, I do not ienow.
THE COURT; M l riiiht. Well,
if Mr. Holmes would be in a position, while
we proceed, to see If Mr. Colette can be
present, the.n perhaps you could proceed
with another witness or 'witnesses and then
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put him on if he can. be alerted to b-e
present this afternoon.
MR. KLEIN: Your Honor, I think.
Mr. Bailey wants him to brinp; with him some,
I think certain lilra.
MR. BAILEY: Film and slides.
MR. ilLEIN: Do you have a copy
of your subpoena? I'll ,̂ive it to Mr.
rioimes so he can be sm-e and have it, and
I take it, you want him here this afternoon?
Your Honor, 1 don't know whether
■ic made any plans. I don't have any idea.
I lenow he should have sciicduled tomorrow,
but I v.'ill do everything we can to him.
THE COURT: All right, sir.
MR. DAYS; Your Honor, at this
point in our case we would like to read
into tiiC record portions of the deposition
of the Defendant in this case, Mr. E. R.
Hymon.
THE COURT: All right, sir.
MR. DAYS: VJouia the Court like
for me to take the stand and read from there?
THE COURT: You may do so from the
190 29 X
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c o u n s e l t a b l e i f t h a t i s m o r e c o n v e n i e n t .
Mil. D A Y S : F i n e . I a m r e a d i n g
i n t o t h e r e c o r d p o r t i o n s o f — m y c o - c o u n s e l
h a s s u g g e s t e d t h a t I t a k e t h e w i t n e s s s t a n d .
T H E C O U a T : A l l r i g h t , s i r .
M R . B A I L E Y : Y o u r H o n o r , w h i l e
M r . D a y s i s r e a d i n g , m a y I i n d u l g e o r r e q u e s t
t h e C o u r t ' s i n d u l g e n c e t o c h e c k o n s o m e o t h e r
w i t n e s s e s ?
T H E C O U R T : Y e s , s i r .
M R . D A Y S : I a m r e a d i n g i n t o t h e
r e c o r d iroin t h e d e p o s i t i o n o f E l t o n R i c h a r d
Hy:son, a D e f e n d o . n t i n t h i s c a u s e , t a k e n o n
t h e 26t h d a y o f A p r i l , 1 9 7 u I b e g i n
r e a d i n g f r o m t h e d e p o s i t i o n a t p a g e f o u r ,
l i n e s s i x t o n i n e :
Q. ( M r . D a y s r e a u l i n g ) U o u l d y o u g i v e y o u r f u l l n a m e
o n c e a g a i n f o r t h e r e c o r d , a n d y o u r a d d r e s s ?
A. E l t o n R i c h a r d H y m o n i a t t h e t i m e , 9 0 1 W o o d l a n d ,
M e m p h i s , T o n n e s s c v c .
( M r . D a y s t h e n readin;_, f r o m l i n e s 1 9 t o 2^1 o n p a g e 4 : )
Q. C a n y o u i n d i c a t e t o m e y o u r e d u c a t i o n a l b a c k g r o u n d .
M r . Hiamcn?
Y e s . Vihere w o u l d y o u li'ne m e t o s t a r t s
191 29.)
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Q* VJell, you can start with v̂ hether you- are a native
of MeiiiDhis, and where you attended pri*aary and secondary
EChcoo-Sj and wnether you had any post secondary education.
A. Yes. I arr. a native I!cri-iphia,n. I attended primary
and secondary school at Jeter Gchooi^ 46^9 Horn Lake
Road, Memphis. I f_;raduated in ipoo.
.(Turninr to pace 5 of the deposition;)
-A. And in Ccptember of i960 I enroLsd in the Tennessee
Ltcte University, iiashville, Tennessee; I graduated in 1970,
in June of 1970, with a B.S. Degree in English.
(Moving to lines 11 to 24 on page 5 0
!:• ..ere y'ou invoi.ved in r-.ny extra curricular
activities while, you were at Tennessee State? Were you
involved in any clubs or any t̂ roups or anything like that?
A. Yes. Basical...y, I ciiess; I don't recall the names
of the clubs. But sometninc like the literary guild and
sports
Q.
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Wiiat kind of sports did you play?
Baskotbalij softball.
But not any varsity level athletics, is that right?
Do you mean lor the schooi.?
For the school, that's right.
Yes.
Did you play any athletics when you were in high
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school?
A.
(Turning to page 6 of the deposition;)
Q -
A.
Q.
Yes.
Vinat sports were you involved in?
Basketball and softball.
Did you receive any letters for your participation
in those s;;orts?
A. In basketoall.
Q- ilO'A’ many years did you receive it?
A. One year.
Q. Kow tall are you^ Mr. Hymon?
A. Six-four.
(Tuniing to page 23 of the deposition, starting at
line one;)
Q. Did you have any instruction in physical combat
vjhen you vjsre out thei'e at the Academy?
A. Yes. We had some instructions in physical combat.
Q, Gan you describe, to the best of your recollection,
v;hat that instruction entailed?
A. 'dell, I might start by saying It entailed an
excessive amount of running. You inow, we liad to run some two
or three miles a day while we were in training. V/e also had a
little training in tiie use of tiic ni._,ht stick, and also, some
trainxn̂ _, in the use of, I guess you would call it Judo.
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Q - Wellj how much training did you have, in the use of
Judo?
A. I only had a miniuial amount. It wasn't that much,
you knov;. Just a few grappling techniques with the hands, and
how to get a deiendaiit down so that you could cuff him.
Q - H o v ; rneny h o u r s w o u l d y o u s a y w a s i n v o l v e d in
i n s t r u c t i o n i n Judo?
Q.
During the entire time?
Y e s .
A. Vlell, I can't really narrow it down to just Judo,
Put I would say that we went to the — we went to the gym and
received this type of training on a daily basis.
Q.
A.
K.
Q.
Q -
1 : ■ l;Ow many hours a day?
(i’urning to page 2>], line one:)
It v/as something like an hour a day.
And this v:as over a three week period?
No. It was over a two month period, I believe
Eight weeks?
Yes.
In the running that you had to do, was there any
sprinting? Did you have to do wind sprints?
A. Vie had to do some of everything.
Q- VIere you graded on thin<j,s like how far you could
run and p.ow fast you could run?
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A.
Q.
A.
How fastj yes
How»■. j.aso.'
Yes. in a given aniount of tiine, yes.
Q- i\nd vjiiat uisoance did you have to run^ and if you
iGcalo., Wiiat luinih'.u.'a did people who wanted to be police
officers have to make?
I think the distance was roughly two miles or two
anu a iialx miles; I’m not sure. In something like 15
minutes, I ucliove.
■ ho, it was really endurance as opposed to speed,
«
is that right?
It was a combination of both. It wasn't a situa
tion where you could run a. few lainutes, and walk, and make it
in that length of time.
(Turning to pâ ĉ 30 of the deposition, beginning
at line 1 2 ;)
Q- , Here you ^iven any instruction with respect to
dealing v.’ith persons v;ho are fleeing from what iuay have been
the conunission of a felony, who are unarmed, in terms of
resort to lethal icrce?
(Turning to page 31;)
A- 'would you run that by me again?
Q- I will restructure the question.
Were you ever, during training, pre^iented with a
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1 hypothetical situation where a person is fleeinii from what
appears to be the commission of a felony, but is unarmed,
and the Oifxcer is a'/vare of the fact that that person fleeing
is unarmed, i‘/as such a hypothetical ever presented to you
during training?
A' I don't think, so, but we ;7ere given some instances
where v;e vjould I think most of the instances where we use
leohal force, it v/as up to oux discretion period. They never
said, "in this situation, you will use legal force." It vms
a discretionary situation. But some minor felonies, I guess,
liKe larceny, you Icnow, if it v;as just a minor larceny or
something of this nature, then v;e were instructed that it
wouldn't be a wise decision to use legal force.
(Turning to page 33 of the deposition, starting at
line 1 9 :)
MR. DAYS: Will you mark this
for identification?
(Whereupon, said document
"Agility test" was marked Exhibit 2 for
identification to the deposition of the
v.'itness.)
Q- (By Mr. Days) Mr. Hymon, directing your attention
to E:<hibit 2 for identification, it's a three-page document.
I want to ask you whether you can identify the nature of that
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doc uaent?
Yco. It EGcais to to tlic ability test that I had
to take prior to ray coniiny on the force. It seems to be the
score lor that test.
T'- Can .you dc sci’.i.l'c the natiuc oi' the a.pility test
tnat you h-'.d to tak.c?
k. Yes. It v;as a cô irbiiration cl various agile move
ments,, basically; you rinov;, sitipr. , ciiinups. Jumps, run.
And ca.a yoc indic;ato, ii you recall, what a perfect
score v.'ould be on the agility test?
A. I don't recall what it v;ao.
Q- Cn i'U'.rc tv.’o cl' lahiC'lt u, in one coluion there is
IDCI j.CS uGCi _5 is there not, a list oi the events tiiat form part
of the agilitv' test?
And in the coluinn nc:;t to that, on the right hand
A. Yes .
a An'i in
c ide, there is o.
A. Y c s.
0.- Nov;, lor example, in nunb;. r one, under "Agility
Jutr.p" being the event, Ct scorr cl' si;; is indicated. Can you
indicate. v:'iiot that six rc£)i’escnts, olvut scale it was marked
on? Six cut of ten? Six out cl tv:cnty?
(T u. 1- n i n p a., c 3 5 :)
A- Si.x out oi ten.
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A.
Six out of ten?
Yes.
Q- So that the higher score was ten?
A* I assume^ yes. I don't know if that i</as coherent
all the way down the line.
Q- VJell, let's go down the list. Number two is
"Back stretch" and you have a score of nine. Is that nine out
of ten?
A.
Q.
eight
A.
Q.
Right, I think so.
And "Broad jump", nuir.ber three, you. have a score of
Is that eight out of’ten?
I think so.
And ".Dips" — v.’hat are dips? Don't do it, but if
you can, describe it.
A. I was just trying to recall exactly what they were.
Q- Well, it's not critical. The point is that you did
very well, did you not, on it? You got a ten?
A.
Q.
A.
Q.
were.
A.
Right.
Is that ten out of ten?
I assuiae that it is.
You did so well in it, you've forgotten what they
(Turning to page 36:)
On sonic of them.
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On the balance beam you got a score of three. Now,
is tiiat a gooa score or a bad score, if you know?
It was three out of ten, I v.'ould assume that it's
a bad score.
0* Nov;, is Hand ivalk, parallel bars" and there
is, if I read it coi’rectly, .a zero under the score.
Nov:, I don't hnow if that's a zero, or a circle
and a line thrcuch, indicating tliac I didn't do them at all.
0- A.!.1 right. Vvell, 'without going down the rest of
the list, GO you have any reason to doubt that the highest
%
score in each of these categories was ten?
No, I don't have any reason to.
Q- And there are ten cabegories, are there not?
A. Right.
And, so, a perfect score, if the assumption I am
making is correct, would be 100?
If your assumption is correct, yes.
And the total score that you made 'was 75’
Right.
(Turning to pa;_;,e 'lY of the deposition, starting at
A.
Q-
A.
line 2 1 :)
Q.
Mr. Hymon ̂ oO del
you ws rc on duty at '
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iV.
. KLEIN: May I take a break
I or juGt a aunute? It looks like we are
get tin,, into a new area.
(Turning to pa^e -̂iS:)
MR. DAYS: Certainly.
RECESS
MR. DAYS: (Addressing Court
Reporter) Please read the last question
asked.
(V/hereupon̂ the Court Reporter
complies with the request of counsel.)
Yes .
Can you indicate whchc shift you were 'working thatQ.
day?
Yes. I was working 1600 to 2400 hour shifty 4:00
to 1 2 :00.
Q- And can you i.ndicate whether you were on a walking
patrol or a motor patrol?
A. Motor patrol.
Q- In whe'.b area were you assi,,ncd during that time,
if you were assigned an aiea?
A. I was assigned to ',7ard 128.
Q- And can you indicate v/hat the geographic boundaries
are 01 that V/ard?
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A. Yes. I believe it was Evergreen on the east,
Bellevue on the west, and I thinh it was Jackson on the south,
and Chelsea — I think it was Chelsea on the north, I'm not
sure .
(Moving over to pagt!
Q- iJere you in the police car alone, or were you with
another officer?
A.
Q.
A.
Q.
rode?
I was with another officer.
And i;liat is the no.me of that officer?
His name is Leslie VJright.
Was Mr. VJright the person with whom you generally
A. Yes, I believe so.
Q- How long would you say you and he had been riding
together in the patrol car?
A. I really don’t know.
Q. You can't describe it in terms of the number of
months you have been on duty together?
A. Ho, not really, because some times I would be put
with a different partner. I don't recall him being a regular
partner of mine.
Q- VJcll, who was your regular partner at that time?
A. I really don't recall having one because, you know,
sometimes we'd change. This day we might have somebody, he
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may be sick, and they’ll put somebody else with'you. I really
don't recall exactly v/ho it was.
Q. VJell, il you had to rank officers with whom you
worked during 1974 in terms of the length of time you worked
with each, which officer v/ould be number one; that is, the
officer with whom you spent.most time during 1974, on patrol?
(Turning to page 50:)
A. I really couldn't say because I don't remember all
the various officers that I rode with.
Q. I see. Did you have occasion, on October 1974,
to go to an address on Vollentinc Street?
A. Yes.
Q. And can you indicate how you happened to be called
to that scene?
A. I couldn't tell .you definitely. I could tell you
what was related to me, because I was in the fire house at
the time we received the call. Officer Wright was listening
to the radio and came in and informed me that we had received
a burglary in progress call through the dispatcher.
Q. Now, when you talk about a burglary in progress
call, the dispatcher says, "Car such and so, burglary in
progress at -- " Is that the nature of the communications?
A. Usually, if it's in progress, he will say whatever
the nature is, burglary in progress at whatever the location
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Q* Doss the dispatcher ever give details of the nature
of the burglary?
(Turning to page 51;)
A- No. He just — in some cases he gives the Com
plainant's name but no details^ unl.ess the Complainant is
relaying details to him over the phone or something,
Q‘ I see. SOj you were not present when a call
allegedly came over the radio that there was a burglary in
progress?
A. No.
Q- But you were told that by your partner at the
V
time — Mr. Hright?
A. Right.
Q- Nowj can you indicate why you v;ere in the fire
house at the time this call arrived?
A. YeSj I can. I was in the fire house using the
restroom.
Q. And the call ivith respect to a burglary in progress
was received by your car at approximately what time?
A. (No response.)
Q- I'm not asking for the specific minute. If you can
tell me generally the time of night, whether it was early in
the evening, early in the afternoon?
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Okay. I think it was somewhere in the neighborhood
or 10;40 or 1 0 :30 ̂ somewhere in that neighborhood.
And you were on duty at that time until midnight,
is that right?
(Turning to page 52;)
A. Yes.
Now, do you recall being called to the area of 737
Vollentine?
Q.
A.
Q*.
Yes.
And is 737 Vollentine in Ward 128?
No, it's not.
vJell, why was it that your car received a call to
report to that particular address?
A« The cars in that area — I'm assuraing the cars in
that area were out of service. I had no way of knowing that.
• Is it normal, to the best of your knowledge, for a
car from Ward 12o to be asked to ro into another Ward?
A.
Q.
A.
Q.
A.
Sure.
What Ward is 737 Vollentine?
I believe at the time it was in 129,
129?
Yes.
Q* In terms of the nature of the calls that come over
the car I'adio is there a difference between a report that a
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-143-
prowler is ins id'
burglary in prog'
A. Yes, :
Q. Well,
(Answc
A. There
basically that when one says that there's a prowler inside,
then we asoarne that he's inside for the purpose of burglaria-
Ing. How that you brought that out, I believe the call was
prowler inside rat!:̂ : than burglary in progress.
%
Q. Hell, do you proceed in any different fashion 'when
you receive a pro'wlcr inside notice asroposed to the way you
would proceed if you received a burglary in progress call?
A. No.
Q. The same situation?
A. Right. It's the same for me.
Q. 'Jell, is there any distinction in the way the
Police Department operates between those two types of direc
tions?
A. I would say it is the same basically for everyone.
But you know, sa.y where I might use a light and siren, some
body else may just use the light, or somebody may use the
spotlight. But it's usually a call that we try and proceed
rapidly to.
or'ir;
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Q. '/Hien y o u w e r e t o l d b y y o u r p a r t n e r t h a t y o u h a d beefi
a s k e d t o g o t o 7 3 7 V o l l e n t l n e , w a s t h e r e a n y i n d i c a t i o n o f h o w
t h e d i s p a t c h e r r e c e i v e d t h e r e p o r t t h a t t h e r e w a s a p r o w l e r
i n s i d e ?
( T u r n i n g t o p a g e 'oh-.)
A. T h e d i s p a t c h e r r e l a y e d i t , I b e l i e v e , a s a p r o w l e r
i n s i d e . I t h i n k t h a t ' s t h e w a y — w e l l . I ' m a s s u m i n g t h a t ' s
t h e w a y h e r e c e i v e d i t s i n c e t h a t ' s t h e w a y h e l e l a j e d i t .
Q. C a n y o u i n d i c a t e h o w f a r t h e f i r e h o u s e is f r o m
7 3 7 V o l l e n t i n e ? T h a t i s , t h e f i r e h o u s e w h e r e y o u w e r e
l o c a t e d ?
A. Y o u m e a n i n miles,. I a s s u m e ?
Q. I n m i l e s , i f y o u c a n , a n d a l s o i n t e r m s o f t h e t i m e
t h a t it w o u l d t a k e y o u , d r i v i n g r a p i d l y f r o m t h e f i r e h o u s e t o
7 3 7 V o l l e n t i n e .
A. O k a y . R o u g h l y , I w o u l d s a y t h a t t h e f i r e h o u s e i s
p o s s i b l y , I w o u l d s a y o v e r a m i l e . I f y o u a r e g o i n g i n a
d i r e c t r o u t e , I w o u l d s a y a m i l e a n d a h a l f , p r o b a b l y .
Q. L e t ' s b e s p e c i f i c . Hov: l o n g d o y o u r e c a l l it t o o k
y o u r c a r t o m o v e f r o m t h e f i r e h o u s e t o 7 3 7 V o l l e n t i n e ?
A. O k a y . I b e l i e v e w e r e c e i v e d t h e c a l l a t a b o u t
2250 o r - 5 3 > s o m e t h i n g l i k e t h a t . A n d w e a r r i v e d o n t h e s c e n e
a t 2 3 0 3 } I b e l i e v e , o r s o m e w h e r e a r o u n d t h e r e . S o , w c a r e
t a l k i n g a b o u t e i g h t m i n u t e s o r m o r e , s o m e t h i n g l i k e t h a t .
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Q.
A.
Q-
VJhere is the fire house located?
It's located at Stonewall and Chelsea.
And upon arriving at 7 3 7 Vollentine would you
d e s c r i b e w h a t y o u o b s e r v e d a n d w h a t y o u d i d ?
( P a g e 5 5 0
Y e s . W h e n w e a r r i v e d , t h e — a l a d y w a s s t a n d i n g
i n t h e d o o r a t 7 3 7 V o l l e n t i n e , a n d s h e w a s p o i n t i n g t o w a r d s
7 3 9 V o l l e n t i n e , a n d s h e w a s , y o u I m o w , j u s t m a k i n g a g e s t u r e
w i t h h e r f i n g e r , p o i n t i n g i n t h a t d i r e c t i o n . A n d I a s k e d h e r
w h a t s h e w a s s a y i n g , a n d s h e m a d e a n o t h e r g e s t u r e , m a k e s o m e
t y p e o f g e s t u r e w i t h h e r m o u t h , a n d I c o u l d n ' t u n d e r s t a n d h e r ,
s o I w e n t u p t o t h e p o r c h a n d a s k e d h e r w h a t s h e w a s s a y i n g .
R o u g h l y I r e c a l l h e r s a y i n g , " T h e y a r e b r e a k i n g i n i n s i d e . "
A n d a t t h i s t i m e I w e n t b a c k t o t h e c a r a n d g o t m y f l a s h l i g h t
a n d i n f o r m e d m y p a r t n e r o f w h a t s h e s a i d , a n d t o l d h i m t o g o
a r o u n d t o t h e o t h e r s i d e .
Q. Y o u u s e d t h e t e r m " T h e y a r e b r e a k i n g i n . " D i d y o u
u n d e r s t a n d h e r t o b e s a y i n g t h a t t h e r e w e r e s e v e r a l p e o p l e
i n s i d e t h e h o u s e ?
I d o n ' t r e a l l y t h i n k s h e k n e w . I t h i n k t h a t s h e
I t h i n k s h e m i g h t h a v e m e n t i o n e d t h a t s h e h a d h e a r d s o m e
g l a s s b r e a k i n g o r s o m e t h i n g , a n d s h e k n e w t h a t s o m e b o a y w a s
b r e a k i n g i n . I d o n ' t t h i n k t h e p l u r a l f o r m h a d a n y i n d l c a t i o r .
o f h e r k n o w i n g .
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Q .
A.
Q.
- 1 4 6 -
But you recall her eaying something about "They"?
"They are breaking in inside."
And after you notified your partner what you under
stood the women on the porch to have said, did you or your
partner make any effort to radio that information to the
dispatcher, to other units in the area?
gloving over to page 56:)
A. I didn't make any indication. I don’t know what
he did from the time that he moved the squad car over until
the time he got around to the side of the house.
Q. Well, can you indicate what proper police
procedure is, to the best of your knowledge, under such
circumstances? Is it appropriate for you, once you've
received information with respect to a crime being in progress
to radio that information to the dispatcher?
A. '.veil, the first appropriate thing is to investigate
to see that that's actually wha.t's happening. Once we see thajt
that is actually what's happening, we informed the dispatcher
of cur findings.
Q. I see. So, it's not Incumbent upon you to communi
cate the information that you receive upon arriving on the
scene to the dispatcher?
A.
0,.
iTo. Ke had already received that information.
When you were tali:ing to the woman on the porch,
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-147-
were you in any position to see anything with respect to the
house at 7 3 9 Vollentine?
A. Yes. I saw the house and I saw the lights on in th^
house,
Q. VJhere were the lights on, if you recall?
A. I think it was the kitchen and —
(Going over to page 3 7 : )
Q,. V/ell, you didn't know it was the kitchen at that
time, did you?
A. No, no. Later on.
•%
Q. Okay. Can you describe where you saw the lights
in terms of —
A. (Interposing) I believe there was a light in the
first room in the northwest corner of the house.
Q. All right. For purposes of further discussion
and questions, can you Indicate the directions of the house
in terms of vihich direction the front of the house faced and
which direction the back of the house faced, and the sides?
A. The front of the house faced the north, back to
south, and the sides are east and west.
Q. So, 737 Vollentine is located on what side of 7 3 9
Vollentine?
A. It was located on the west side.
Q. All right. So, you saw lights where? In the front
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of th_ house, on the north side, or v?here exactly?
A. In the front of the house on the north side, yes.
Q. And v;here else did you see lights?
A. I believe on the east side, the southeast side of
the house.
Q. Well, how could you see lights on the southeast
side if y o u v?ere standing on t h e west side at 7 3 7 Vollentine?
(Going over to page pB:)
A. VJcll, if I recall correctly, the room on the west
side had a reflection of a light, but I think the light was
coning from the room adjacent to that.
Q. I see. So, you assumed that there was some
reflected light on the east side, coming through on the west
side?
A. I’m reasonable sure that's what it was.
Q, Do you remember if there were any windows along the
west side of the house at 739'’
A. I believe there are two windows.
Q. Tvjo windows. And in terms of their location, could
you say where they were located, vjhether they were toward the
north, that is, the front, or to'ward the south, which is the
back of the house?
A, I stand corrected, but I believe one is on the
north, tovjarcis the front. I don't recall the exact position I
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was standing.
Q. And you say there vjas another window somewhere else
on the west side?
A. I'ni not sure. I'm assuming that it was.
Q. How would you describe the size of the window that
you recall on that west side? Was it a large window? A small
window?
v\, I don't really recall. I don't think it. was small
to the sense of being minute^ but to the best of my recollec-
tion^ average size.
Q. Wellj what would be average size in your terms?
A . V/ell, I would think large enough for me to get
through woi.;ld be termed average, without any problem.
Q. V.'ell, do you recall 'whether it had a top and bottom
pane?
A. I believe it had both.
Q. And when you say large enough for you to get
through do you mean if both panes 'were removed, or do you mear
if the bottom half were raised or the top half lowered you
could cliinb through?
A. If the bottom half were raised or the top half was
lowered.
o.
ground?
Do you recall how nigh the window was from the
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ii. Ho. I do not.
Q- You don't recall v/hcthcr it was in a position where
you could pull yourself into the house?
A. Hell, it was lov; enoufli for me to get in.
Q* All rid;ht, sir. But you are six-four^ is that
r it5h t?
A. BiGht.
(Tarnin-G to paGO 6o :)
d- ho you recall vfnether it would have been h under
for somebody under six feet to climb into such a window?
A. I don't think it v.-ould; the houses weren't tall,
Q- I see. How hiGh would you say the house was from
the Ground to the roof?
A. That's a good question. I really couldn't say.
Q. Do you recall what kind of night it was in terms
of the weather, Mr. Hymon?
To the best of my ability, the weather was fair.
Fair?
Yes,
Uo you recall whether tliere was a moon?
No, I do not.
Do you recall what the temperature was, roughly?
No, I do not.
But you ilon't recall it being cloudy?
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j\. ::o .
Q.~ You don't recall i'o beui;; rainy?
A. no.
Q- Ail riQit. Alter you went bacli and spoke to your
partner end coavuunlco.ted to hi::i v;hat you î 'ai:hereu from speak
ing to the v.'oman on the porch, what did you do?
A- I got my flashlight out of the car and proceeded to
the reer of fue bouse.
(Turni.n:;, to page 6l: )
Q- • And how did you move from the front of the house to
the back of the house? Was there some way of passing between
7 3 7 and 7 3 9 to get from the front to the b a c k ?
A- Yes. I recall going between two houses^ to the
rear.
And vvhat side of the house were you on at that0.
time?
A. I should have been on the west side of 739 and the
east side of 7 37•
Q. llowj between 739 and 737.-. can you describe what, if
anything, separated the two hoiwu’s.?
A. lie, I cannot.
Q. Was there a driveway that 'went the length of 739j
from the front of the house to the back of the house?
I don't have any idea
,213 314
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Q- Lie y o u r e c a l l a n y t h i n g a b o u t a d r i v e w a y i n 7 3 7 ?
K o
Q- D o y o u r e c a l l ' w h e t h e r t h e r e v/ere a n y a u t o m o b i l e s
p a r k e d b e t ' w e e n 7 3 7 s n d 7 3 9 ?
A- H o t t o niy r e c o l l e c t i o n .
Q. W h a t t y p e o f f l a s h l i j h t d o y o u u s e , M r . H y m o n , o r
w e r e y o u usinij a t t h e t i m e o f t h i s i n c i d e n t o c c u r r i n g ?
H- I r e a l l y d o n ' t k n e w . I a s s a m e t h a t I w a s u s i n g
k'.:i-lioht. I h a d h a d a n o t l ; e r f l a s h l i g h t p r i o r t o t h a t t i m e ;
I d o n ' t r e m e m b e r v ' h e t h e r i t w a s t h a t k i n d o r n o t .
( T u r n i n g t o p a g e 6 2 : )
'g. A:id w h a t is t h a t , e x a c t l y ?
A. kcl-light?
Q.
A.
d e p a r t m e n t ?
A.
Q.
A.
Q-
A.
Q-
A.
Y e s .
T h a t ' s a n u n b r e a k a b l e f l a s h l i g h t .
A n d is t h a t s o m e t h i n g t h a t ' s i s s u e d b y t h e
>
H o . F l a s h l i g h t s e.rc n o t d e p a r t m e n t i s s u e .
S o , y o u p u r c h a s e d t h a t y o u r s e l f ?
Y e s .
D o y o u r e c a l l hov; mucli y o u p a i d f o r it?
I t h i n k i t v;as a b o u t :|117.00.
$ 1 7 .0 0 ?
R o u g h l y .
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Q- Do you remember where you purchased it?
A. At whatever place wo were getting our uniforms at
that time, I don't Icnow if that was Southern or Shapiro or
what.
Q. Southern or —
A. (Interposing) Shapiro. I think it's S-a-p-
something.
Q. Kow many batteries docs that flashlight carry?
A- Five.
Q.
A.
Q-
k.
Five batteries?
Yes.
(On to page 63:)
And v/hat types of batteries are they? C? D?
I believe they arc C's.
At the time that you were moving alongside the
resiuence at —
A. (Interposing) I think it was D cell.
Q. D cell?
A. Whichever is larger.
Q. I would have to ask my co-counsel.
MR. BAILEY: D.
Q. (By Mr. Days) As you were moving along the west
side, between 73)7 and 739j dil you see your partner do
anything?
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As I was moving along the side?
'.vollj at any time after you spoke to him about what
you haci learned from the woman on the porch^ did he take any
aetion?
Yes. I asked liim to .̂o around to the other side
of the house, ana he proceeded around to the other side.
Q- Did he proceed in the car, or did he proceed on
foot?
A- I r e a l l y d o n ' t k n o w .
h e l l , v/here was y o u r car parked in relationship to
7 3 7 and 7 3 9 V o l l e n t i n e ?
A- 1 think it was right at the end of 737, right at
the easi. end of i z-7 • It vjasn't -- it couldn't possibly have
been, you Icno'w, even with the east corner.
( G o i n g o n t o p a g e 6 4 : )
How was it parked, if you recall?
I tnink it v;as just normally pulled up to the curb.
Alongthe curb?
Yes .
Parallel to the curb?
Q.
A.
A.
G.
A. Yes.
y o u r p a t r o l c a r , o r p a t r o l c a r y o u were in on
O c t o b e r 3i’u h a v e a f l o o d l i g h t o r a s p o t l i g h t ?
A- I don't recall whether it did or not.
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Q* Wellj are there patrol cars that don't have spot-
lif̂ hts?
Most of them have them^ but sometimes the spot
light has ina 1-functioned and we may have turned it in to get
it fixed^ and we may be out of a spotlight at that particular
t ime .
Hell, assuming that a patrol car has a working spot
llghtj and an officer is investigating a burglary, that is,
some type of breaking and entering, I assume it's in the
nighttime. Is there a police procedure that one is required
to follow xn using the spotlight for any purpose?
well, it's not a police procedure, but it would be.
oommon sense not to use the spotlight and shine it in the
house if you suspect that there is a felon inside.
I believe you said it would be common sense not to
shine the spotlight in?
A. Right.
Q* Hid you mean to say it would be common sense to
shine the spotlight in?
A* No. No. It wouldn't be using common sense to
shine the spotlig;ht inside the home.
Q- Why 'would not it be?
A" Because if the felon is inside, then he would see
the light and possibly get out before you could get around to
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-156“
him to apprehend him.
Q* Well, do you think it v;ould be common sense to
shine the spotlicht in the direction of the possible line of
escape of a person v;ho was inside a house at ni-iht?
A. It v/ould be common sense then, if you were in the
car, and if you loiew the house and the means of escape of the
house.
Q* VJell, did you at any point indicate to your partner
that he should be ready to shine his spotlight from the car in
the direction of the back of the house in case the person
inside tried to escape?
A- No. It would have been logical for him to stay in
the car in front of the house and shine the spotlight when
the — he was supposed to come around the other side, you know
come to the rear of the house?
(Going over to page 66:)
Q- Is there any police technique recommended with
respect to using cars as shields when you are in the process
of investigating a situation where a suspect may be armed?
A. VJell, yes, I — you mean, you said "procedure"?
Q- Yes.
A. Okay. IJe were told if there are no other forms of
cover in an armed situati.on, you know, v;here a party is armed,
then, you know, that the car would be a feasible form; not
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nccsssarily th.s bsst^ but it would bo ons form of covor,
Did you place your patrol car in a position where
it luifiht be I’esorted to for cover in case the person inside
were aruied?
A.
Q.
A.
No, we did not.
Did you consider doinji that at all?
NOj we did not.
Q- why diun' t you?
i\ell, because we had no indication that the person
was aruied. And for one thing, when I got to the rear of the
house and I saw the subject running from the rear door, and I
still had no indication that he was armed, and if I had then
it woulan't have been a position where we could get the car in
and use it as a form of cover.
( P a g e 6 7 ; )
Getting bach to the woman on the porch, did that
person indicate anything about tiic nature of the person in the
house? Male? Female?
A. No, she didn't.
Q- Did she indicate v\ihether she had seen the person in'
side the house?
A.
Ho, she didn't.
Was there only one person on the porch at that time?
Yes. That's ail I ever did see.
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Q. O n l y o n e vvoman?
A. R i g h t .
Q. A n d t h e r e w e r e n o o t h e r p e o p l e a r o u n d , t o y o u r
k n o w l e d g e ?
A. N o t t o m y l i n o w l e d g e a f t e r w e a r r i v e d .
Q. A l l r i g h t . S o , y o u r p a t r o l c a r w a s p a r k e d
p a r a l l e l t o t h e c u r b , a p p r o x i m a t e l y i n f r o n t o f 7 3 7 V o l l e n t l n e
i s t h a t r i g h t ?
A. A s b e s t a s I c a n r e c a l l , w h e n w e p u l l e d u p o n t h e
s c e n e .
Q. A n d i t w a s p o i n t e d i n 'what d i r e c t i o n ?
A. I t w a s p o i n t e d i n a n e a s t w a r d l y d i r e c t i o n .
Q. A l l r i g h t . A n d I b e l i e v e y o u i n d i c a t e d t h a t y o u
t o l d y o u r p a r t n e r t o g o a r o u n d t h e e a s t s i d e o f 7 3 9 V o l l e n t l n e "
I s t h a t r i g h t ?
A. R i g h t .
Q- A n d w h a t d i d y o u do?
A. I w e n t t o t h e w e s t c o r n e r .
Q. W h e n y o u g o t t o t h e —
A. ( I n t e r p o s i n g ) S o u t h w e s t c o r n e r .
Q. ( C o n t i n u i n g ) — s o u t h w e s t c o r n e r , w h a t . i f a n y t h i n g
d i d y o u o b s e r v e ?
A. O k a y . I o b s e r v e d , vdien I g o t t o t h e s o u t h w e s t
c o r n e r , j u s t a s I w a s g e t t i n g t o t h e c o r n e r o f t h e h o u s e .
OOf) 3 2 ±
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“159“
peeked around the corner of the house and saw what appeared to
be a male — v;ell̂ a figure, rather, running from the door.
And I heard the door slam and I saw a movement across a streak
of light, and then I heard noise on the fence, and I shined
the flashlight and saw what appeared to be a male black on the
fence.
Q- Nov;, you Just mentioned that you saw a streak of
light. Can you explain that?
A- Yes. As I got to the corner, the southwest corner
of the house, possibly a little before I got there, the lady
at 737 turned her rear porch' light on.
Q- And how would you describe that porch l i g h t in
terms of wattage?
A. I really didn't look at the light itself. I just
recall seeing the light flick on.
(Going on to page 6 9 :)
Q- Well, at the time that the light flicked on, cou ld
you describe the extent to which it illuminated the area
beyond which you v/ere able to see with your flashlight? Were
there things that you did not sec with your flashlight that
became visible when the light went on at 737 Vollentine?
A. Vfell, that particular light didn't illuminate the
back portion of -- didn't seem to, well, it didn't c a s t any
light, not too much light, really, on the rear portion of 739*
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It v.’as still dark, you know, where you had to use a flash-
.Li{̂;ht to ldcm;iiy someone. It did seenr to cast a better “•
vjeil, a sii'j;ht ray of lij_,ht across the rear of 739.
have any reasc;!! to thinlt that the woman
irom Yd? VoLlcatinc was on the had: porch at tnat time?
A. Ko.
Q , .
irca?
o
tin fence?
i .
You uiun't set', anyoouv or hear anybody in that
hell, 1 uidn't really look.
And yoii say you saw a blacn male heaaing towards
1,'cll, X t'lxdn' t reaXJ.y know v;here he 'was heading
aLtcr I lieca'd tUu dioor slaai and after I saw liim come from the
door arc-a and hearu the door slam, because I saw — like I
} I just saw the streak and then I had to find him to see
exactly 'where he 'went after I heard a noise on the fence.
Q- And could you describe w h a t you recall of the back
yard of 7 3 9 Voi.lentine a t t h e tiiuU you shined your flashlight
a r o ’̂ dd? ,
A. t’ell, I think 1 crossed a euiiding, what seemed to
be either a ^arage or an outer ..ouse, you know, trying to find
the subject. Ke 'was back on the fence in the rear of the
Id use .
how, v'.-.as it poGsisic, x'rcm where you were standing
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at the southwest corner, to see from one side of the yard to
the southeast corner?
A. Hot the furthermost corner because the building was
blocking that area betvjeen the outer house and the fence;
there v;-as an a.rea back in tlicr-;: tb.at I couldn't see around in,
Q- Wait a minute. IT you were standing at the south
west corner and you looked in a direct line across to the soutlli
east corner, could you see past the house, past the southeast
corner?
A. Yes.
Q- And could you indicate what, if anything, you saw
beyond the southeast corner cf the house?
A. Beyond the southeast corner, at the time that I was
standing there?
Q. Yes.
A- Okay. At the time that I was standing there I
couldn't indicate what I saw because my attention was focused
on v/here the individual went that left the door area, the rear
door area.
Q. But was your llashllght of sufficient power for you
to be able to see what was beyond the southeast corner of the
house?
A.
o
Yes.
Could you see was there a fence, or 'was there
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-162
brush, or v;as there anything beyond the house that separated
739 from the next house?
A. The next house golnr east?
Q. That's right.
A... It seems to me I recall e. driveway being over
there. I don't know about anything beyond that. I know that
there was a space for my partner to come down, because I
recall going down that space.
Q. You recall going down that space at sometime
subsequent?
A. Right.
Q. Kov;, at the time you were at the southwest corner,
where was your partner? As you arrived at the southwest corne^
of the house did you have any knowledge where your partner was
at that time?
A. Ko. I don't know if he vjas moving the car around
to the other side, or if he had gotten out and walked around,
but I Icnow he v;as in the process of coming around to the other
side.
Q. VJell, I don't understand your reference to ''moving
the car around". Was it your understanding that after you tolji
him to go around the east side of the house that he was to mov
the car before he did that?
A. '.Jell, it would have been up to him. I don't recall
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exactly whether he actually moved the car from -its original
position v.'hen vie arrived on the scene. Vaguely, seemingly, he
did.
Q- '.-.hat would be the purpose of moving the patrol car
under those circumstances?
A* It would depend upon where the car was located.
V.’cll, is there any poJ.ice procedure that dictates
that upon arrivin; upon a scene where there is a burglary in
progress that once the officers liave leo.rned v;here this is
goino on, they siiould, rather than leaving their car, move
their car to some other position before going to investigate
further?
A- There is no proce;iurc dictated on it, but it may
have been a situation where he might have been getting into
position to use the spotlight in case, if we had had a spot
light, to use the spotlight in case the guy tried to come
around, or in case the guy ran, or in another area he might
have been able to drive the sduaa car and try to keep up v/ith
him.
Q- Did he say to you, to .your recollection, "I'ra going
to move the car before I back you uo"?
A. Ko, he didn't.
Q- Did you expect to have the full cooperation of your
po.rtner in investigating this burglax'y?
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A. Yes.
Q* VJac it your expectation that your partner would
move the car ai'ter you asked him to 50 around the other side
of the house?
A- I really had no thou;_:hts about itj and I really
don't knov/ whether he moved it or not.
Q* Have you ever investigated any other burglaries in
progress with Hr. ilight?
A. In the coui’se of tirae we have ridden together,
however long it had been, it's a possibility.
Q- Do you recall any situations where you've gone
around one side of the house and he's gone around the other?
A. Sure. That's normal procedure.
Q. Do you recall any situations in which, prior to
his going around the other side,* he moved the automobile?
A. Well, if he didn't, I might have done it if I had
been driving, just depending upon viho was driving, because I
might have dropped him off at one corner and cruised around to
the other side.
Q. Well, assuming that you followed such a procedure
on other occasions, do you recall why, after your partner
went around one side of the house, you decided to move the
car before going to the other side of the house?
A. Certainly. It might have been a situation where
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the building was large and it would have been faster to drive
around rather than to walk around.
Q- SOj, is it fair to say that on this particular
evening^ when you asked your partner to go around to the other
sidGj you do not 'mow whether your partner went to the other
side itninedLatelyj or in fact, took so.Tie time to move the car?
A. I think that would be fair.
Q- VJell, later in the evening did you have any
occasion to re-enter Car 128?
A.
Q.
A.
O.
A.
After?
Later in the evening?
Later in the evcnin̂ ̂when?
Au any point.
Are you talking about after this call?
Yes ,
Yes.
Q- Do you recall whether the patrol car was in the
same position it v:as when you left it to go around the west
side of the house, or whether it was in some other position?
A. I don't recall.
Q,- V.’hat else were you able to see when you were stand
ing at the southwest corner of the house, looking toward the
east?
A. Okay, gtarting off, I guess, after I finally
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plcked up the subject on the fence, I was able to see the
brok.cn v;indow on the southwest corner, I believe it is, the
garbage can under the window, the door — well, not the entire
door, but you know, the facing where the door was going
across.
Q. And you were standing at the southwest corner,
looking east, and you were able to see a door that was built
into the back of the house and could see what condition it was
in?
A. No. I said I was able to see the facing where the
door w'as, which would indica’te that this was a door, I knew
that it was a door, because I had seen the screen door slam.
That's why I knew the door was there.
Q. 'well, is it your testimony that you could see a
window in the back of the house when you were standing at the
southwest corner, looking in an eastwardly direction?
A. I was looking at an angle, not directly east. My
peripheral vision, you know, would cover a reasonable portion
of the area,
Q. Well, is it fair to say that you were not standing
directly at the southwest corner of the house, that, in fact,
you were farther south from the corner?
A. Not too much farther south. Far enough to see, you
know, to see what would be coming from the east and to see wha
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was in that area.
l̂ ere you in a position whereby you could look from
an an̂ jle, back to the south portion of the house, that is,
the rear of the house?
A. Yes .
weren't standing in a position where your
vision ■•'ould be parallel to the back of the house? That is,
ix you were GGanurng parallel to the back of the house on the
south Side, j_t 'would be very ho.rd, would it not, to see what
v.as in the xace oi the back of the house, a door or a window?
A. Kight.
Q- Isn't tliat correct?
A- h i g n t .
is it fair to say that you were farther south
than at the very corner?
A. Bight,
Okay. Did you notice any buildings in the back of
the house?
A- Yes. I noticed some type of buildings. I stated
beiore, 1 don't know if it was a garage or outer house or what
it was .
Now, was there any space between the back of the
house on the east side, and this building that you identified?
ji. Yes.
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And how much space will you say, what was the
distance that that building ran in terms of its length, going
north to south.̂ I assume its length would be north-south.
A- I really couldn't say.
All right. Can you Just describe the length of the
buildinji, tnat portion of it you sav;, in terms of its distance
from north to south?
A- Not really, because all I know it was a building;
my attention was not focused on it at ail.
Were you able to see wliether the building extended
«
to the very back of the yard behind the house?
the best of luy knowledge, it did not extend to
the very back.
lo the best of your knowledge, what do you recall
to be the placement of this building in the back of the house?
A- Seemingly it was over to the — what I would say,
somewhere parallel to -the east side; just looking south you
could see the building, as ii a garage would be, and it was
off the fence, I would say a couple feet from the rear fence.
Q- Now, at the very rear of ti\e yard what, if anything,
did you see?
A. At the very rear of the yard was a chain linkI
fence, I would say approximately five and a half or six feet
tail. Beyond that was a bunch of weeds.
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Now^ can you recall wht the approximate distance
was Irom the bach oi' the house to that chain link fence?
A. No, I Can't.
the chain link fence run beyond the point where
you were standing? That is, you were standing at some point
south of the west corner of the house, but not exactly in the
corner, is that right?
A- Couth of the west coi'ner, but not exactly at the
corner, yes, I would say that's right.
Q* Okay. Now, did the fence run as far west as where
you were standing?
A- To the best of my knowledge — I take that back. I
really don't know. I really uon't remember just how long the
fence was.
Q* VJell, did you see any break in the fence between
the point where you were standing and where the building was
located? That is, the building in the back of the house.
A. From where I was standing, going east?
Q. Yes.
A.
Q.
fence?
A.
Q-
No, 1 didn't.
was it your recollection that it was a continuous
From where I was standing, roughly eastward.
And you don't have any recollection of the
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approximate distance between the back of the house to the
chain link fence?
A- HOj I don't.
A'o you recall whether the fence was new or old?
really dldxi't look brand new, but it didn't look
you knov;, rusty.
Would you say the fence was in good condition?
A- Rouchly, 1 would.
"Ae ience. run dov;n to the ground, or w'as there
any space underneath the fence?
A- As far as I can reme;tber, it ran all the way to the
ground.
Now, you indicated that you saw some weeds beyond
that fence, is that right?
A. Yes.
Q- Can you describe those weeds?
A. As far as I can remember, I believe it was Johnson
grass or regular grass, just tall grass.
Q- How tall would you say the grass was?
A. Well, I would think that it came up just roughly —
I think that it came up to aliaost the height of the fence.
Q- It was almost six feet high?
A. It was rather high. I am not sure that the fence
was six foot, but I'd say almost, or maybe half the height of
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the fence, but it was tall.
Could you sec beyond the weeds?
No, because it was a dark area.
dell, could you. see how deep the ^rass was with
your flaslili:-ht?
I wasn't really paying any attention to it, as much
as I was the subject.
Well, is it fair to say that based upon what you
were e.ble to see, the grass could have been tall one foot
beyond the fence and not tall after that?
It could have been tall one foot beyond the fence?
Q. Yes.
No, I wouldn't think so. From watching him in the
grass, and I v;a.tched him in the area around, I just don't
recall exactly how it was, but to the best of my ability, I
was recalling that he was over the fence, tlien he was gone
because the grass was — to me it was that tall.
Q* What, if anything else, did you observe about the
back oi the house? You described the fence, the grass, the
building. Were there any clotheslines in the back yard, to
your luiowledge?
I guess roughly it was. I think I remember seeing
a clothesline.
Q . You also described seeing a garbage can. Can you
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iiidicate more specifically what that was about?-
A- The garbage can was under the window, the window at
the corner of the south ~ on the south side of the house, and
the glass was broken out, the window glass was broken out. •
the time you were in the back of the house,
were the lights still on in the building?
A* Inside the house, yes.
there a light on, would you say, toward the
back of the house?
^tght. I think we later found out that there was a
kitchen light on.
And wa.s there a light on in what you later deter
mined was the kitchen?
A- Yes .
there any light reflected out from the kitchen
into the back yard?
'■̂ns only at the door, you know, where the
light from the kitchen goes through the glass in the door, and
I don’t really think that was the case, because I believe
there might have been some curtains.
What about the window that was broken open?
A- That was not in the kitchen.
Q- That was not in the kitchen?
A- Ko. That was in the bedroora.
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Q* I sea. All right. After you arrived —
A. (Interposing) I take that oack. Which window are
you talKing about that was broken?
Q* Well, you described the door in the back and you-
also descrioed the window that I believe was over above the
garbage can?
A.
Q.
A.
Q-
A.
bedroom.
Right.
Is that right?
Right.
Where was that window?
*That window v;as not in the kitchen. It was in the
Q- Was there another window in the back of the house
that was broken?
A. We later on discovered the window.
Q* And where was that located? Was that located on the
east side of the back, that is, that southeast side?
A. Yes, the southeast side.
Q> On the other side of the door?
A. No. It was the door. The window was in the door.
Q- I see. And there 'was no other window beyond the
door in the back of the house?
A. I don’t think so.
Q- So, you are in the back of the house, the light
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comes on at 737 Vollentine, you see a figure rush tov/ard the
fence. Is that right?
A. Right, From the dooi’.
Q- At the time that you sav/ this figure, could you
identify anything about the cho.racter of that figure?
A. Other than it seemca to be a male black.
Q. A male black?
A.
Q-
A.
Right.
Hov' did you know that?
V/ell, from the reflection, you Imow, of the little
light I rn.entioned that was coming across the door, coming from
somewhere, I don't know v;herc,
Q- Row, did the figure move from the door prior to
your shinin;,, your flashlight in that area?
A. Yes. Yes.
Q- VIell, where were you shining your flashlight when
this figure rushed from the back of the house, if you recall?
A. Well, as I recall, I 'wasn't shining it at all,
because as I got to the cor.ner, this is when the figure came
from the door.
Q- You didn’t even have your flashlight on?
A. I may have had it on, but I don't recall shining
it, unless I -was shining it directly at the fence, in the area
in front of it, vfnich is probably 'where Ivas shining it. But
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this is what attracted my attention, the noise- coming from
the door.
Q- You had expecto-tion that somebody might try to
come out the back door?
A. Hone wLiatsoever.
Q- So, you shined your light at the Tence rather than
at the back of the house?
A- No. I didn't say I definitely aid. I said this is
probably where I shined it.
Q- All rio’nt. So, this figure rushed out of the door.
You didn't have your flashlight directed in that area. And
then what happened?
A. After I heard the door slam, and someone streaked
across, that's when 1 started trying to find whoever it was,
from the point of where I heard the door slam to the fenced
area where I finally located him.
Q- Now, at the time that you v;erq shining your flash
light eitlier at the fence, or certainly not at the door, did
you have your revolver drawn?
A. Yes, I believe I did.
Q* When did you draw your revolver from your holster?
A- I'm assuming that it was right before I got within
view from the south side of the house.
Q- All right. So, by the time you arrived at the
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drawn?
southwest cornerj is it fair to say that you ha'd your revolver
A.
Q.
A.
Q-
I thinh that's a fair assumption.
You are left handed, is that rijiht?
R i o h t •
So, you had yoar revolver in your left hand and
your flashlight in your right hand?
A. Right.
Q* Anu alter this figure strcahed, as you say, from
the bach, you heard the door slam, what did you do?
•%
Shined my flashlight and found whoever -- well,
1 ound the fellov; on the fence.
Q' riow, at the time you were able to locate this
person with your flashlight, the person was on the fence, is
tnat right?
A. Right.
Q- And what did you do then?
A. I advised him to halt and identified myself.
Q- Did you use those words, "l aavise you to halt"?
V.'hat did you cay?
A. well, I said, ''Halt. Police officer. Halt."
Something like that. "Police; halt." Something like that.
Q- Could you see the person you were telling to halt
at the time that you issued tiiat direction?
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A. I saw — I couldn't plainly see him,- but I saw, you
know, I knew it was an individual; and again, I knew it was a
black male.
Q- Was this person's face turned toward you at any
point?
A. I believe he looked in my direction, yes.
Q. Do you recall the position of his feet at the time
that you shined the light?
A. Ko, 1 do not.
Q. Do you recall the position of his hands at the time
you shined your light?
A. Yes. I believe his hands were grasping the fence,
and 1 believe he v;as in a stooped position.
Q. And after you cried ''halt" did you keep your flash
light on this individual?
A. Yes, I did.
Q. And what happened after that?
A. My partner, sometime beiore that, had made it to
the edge of -- to the corner of the house, the southeast
corner of the house, and the individual stopped and I told him
my partner, that he was around behind the building, you Icnow,
on the fence. And told him to come around and get him.
Q. All right. Now, your partner had arrived at the
southeast corner of the house, is that right?
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A.
Q.
A.
Q -
Q.
A.
Right.
And could you see him?
Right.
V/cllj hcv; could you oce hiia at that point?
’Him" who?
Your partner?
He W3.S across in front oi me. He ivas at the east
corner and j. wc.g at the west corner.
Q- Rid V'U-u shine your fiashiight in his direction?
A. lio.
Q' There was sufficient light for you to see your
partnei' at the southeast corner?
A. Y e 3 .
Q.
A.
Did he have his flasiilight?
1 don’t recall.
Q- And what did you sa.y to your partner?
A. I said that "He's on ti.e fence, on the side of the
house, on ohe sice of the outer house,'’ or something to that
effect, or the garage,
Q. And what did you tell your partner to do?
A. To COLIC around and cot him.
Q. By "get him" what oil you mean?
A. Aperehend him.
Q. Using hxS hands or usin._, his biiiy crub? What did
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1 you intend by telling your partner that, if you recall?
i1i 2 A. Well, my intentions v;ere not based on his, but my
ii 3 intentions were ior him to apprehend him with whatever was
4 necessary. I mean, if it took tlie club, the club. If it
5 didn't. Just use the cuffs.
6 Q. V/as he closer to this individual than you were?
i 7 A. Yes. >
8 Q. How far would you say he vaas from the individual?
9 A. Kell, I wouldn't -- I couldn't estimate in terms
10 of feet. but he was at the southeast corner and the individual
i
} 11 was around behind the house,'on the fence.
o 12 Q. Now, when you say ‘'around behind the house, on the
13 fence ", do you mean that in relationship to you, he was behind
i .14 that outhouse or building, away from the wall of the building
j 15 that was closest to you?
16 A. No. He wasn't behind —
17 Q. (Interposing) In other words, you weren't saying
1i 18 by your testimony you didn't meaii to indicate that he v;as at
! 19 the south of that building?
1 20 A. No, I didn't.
.i1 21 Q- Kherc was he located in terms of that building?
22 A. To the best of my Icnov/ledĝ he was right at the
i 23 corner of the -- excuse me — the southwest corner of thati o1J 24 outside building.!i•11i 240
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Q.
A.
Q.
He was out the southwest corner?
On the 'west side.
Ho'w, in terms of that building, was your partner
at the — let's say northeast corner of that building? That
is, toward the front, but the lar side of that out building?
Or was your partner at the northvjest corner of that building?
A- I think he was closer to the northeast corner.
Q- So, he v;as on the other side, if you will, the
other corner of tne building from where this individual was?
A- I wouldn't say definitely, but I'm saying somewhere
perhaps the middle of the building.
Q- Okay. But somevihere in this relationship, your
pai’tner was at the northeast corner, and this individuail was
at the southwest corner. Is that fair?
A.. No. I would say that my partner was directly at
the northeast corner.
Q* You would say that he was closer to —
A. (Interposing) I would say that he v;as at the
corner of the house, not in respect to the building, but
rather closer to the corner of the house.
Q,‘ All right. Can you describe for ms the relation
ship betv.'een the west v/all of this out building and the south
east corner of the house? Or maybe this would be easier;
VJas the ea.st wall of that out building parallel to the east
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wall oi' the house, to your knowledge?
• I think the building is setting more or less
like in the driveway, on the side of the house. You know, as
if you woula uurn on the east side of the house and go down
to tne building, I vjouia think that the building was like that
But my partner wasn't situated in relationship to the building
and house v.'hcre he could look directly across and see the
Defendant, or see the victim.
t)id you say anything else to your partner at that
time?
%
I think I had to tell him tint twice, well, I had
to tell him where he was twice, because he didn't Icnow v̂ here
1 was talking about.
t)id you have your light shining on the individual
all this time, v:hile you were giving your partner instructions
twice?
A- Yes, I did.
Q- And what was this individual doing at that time?
A* The fii’st time, he 'was doing as I had ordered; he
had stopped. But when my partner asked me the second time, he
saiu "where?" and I told him, at tirat time, this is v/hen the
individual started over the fence.
Q. By stai’ting over the fence do you mean that this
upindividua.1 v;as at the top of the fence, or was midway the
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fence j or just about to climb onto the fence?
A. No. He was on the fence and about to go over the
fencej so he v;as vvcll — well up at the top of the fence.
Q- SOj while you were giving your partner instructions
you, in feet, watched this individual climb up the fence
toward the top?
A. Nell, it v.'casn't a clj.mb, it was a jump. You know,
just as if he were trying to spring over, spring over the
fence.
Q- Did you make any attempt to move toward this
Individual at the time you were telling your̂ partner to appre
hend this invidivual?
A. I might have taken r couple of steps forward, but
I couldn't get — I couldn't get directly to the individual.
Q- VJhy not?
A. Nell, there was a fence separating me from him.
In other 'words, there was a fence on the southwest corner,
running north and south.
Q- It was running north and south?
A. Right.
Q* And could you describe the nature of this fence?
A. As far as I can recall, the fence was a —
seemingly — I think it appeared to me to be a chicken wire
fence. You knov;, about three and a half to four feet tall.
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Q.
A.
Q-
A.
A. chicken v/ire fence?
Right.
How v;as it supported, if you recall?
I don't really recall. I think roughly, though, .it
-1S3-
'was probably two by fours, or something of this nature.
T'wo by fours?
Yes,
-And 'was it an upright fence?
Straight up? Yes.
Hhat 'Will you say the condition of the fence was at
Q.
A.
0.
A.
Q.
that time?
I 'would say th a t i t was in good c o n d it io n .
And it's your recollection that that fence went
from the southwest corner of the house to the chain link fence";
A. Right.
Q- There 'was no break in i t th a t you cou ld see?
A. Hell, I wouldn’t swear to it because my mind vjasn't
focused on the fence at the time. Later on I think we found
out, but I don't remember what found out.
Q- You weren't considerin.g at that time how you could
get to the person w'.io was trying to climb over the fence?
A. Right. And in that consideration I would say that
I considred that he was to the fence, or saw that he was to
the fence. I just don't remember exactly what I sav7 at the
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tirnê or exactly v;ha.t I determined at the time
ŷ'-T- consider, at tliat time, trying to hop over
that fence?
A. No, I didn't.
Q- Wh.y not?
/;ell, ii’om the time that I had told my partner,
since my partner was there, from the time that I had told him
and iiom tae time tha.t the sub.jcct :;:ade the attempt to go over
the fence, if I had hooped o\-cr the xcnce, I still couldn't
have caught him because I'm not quite that fast.
you have any reservations about your ability at
that time to jum.o over the fence?
I'm sure I --No.
Q-
I-..
■ (Interposing) To vault over the fence?
No. I'm sure I could iiave jumped over it. I could
liave stepped over the fence.
Q- You could have stepped over the fence?
A. R ight.
Nut you didn't feci tha.t s.tepping over the fence
would have ,̂ ivcn you exioû .h time to catch this individual?
VJcl.i, I'ln sure it v.'ouldn't have.
Q- ■N'ly are you sure that it wouldn't have?
Well, as J stated, well, I didn't state it, but
v.'hc.n the iiidividual jumped, he nan o.iready at the top of the
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fence j and before I could have made a step to get over the
fence, he vjould have been already over the fence. I mean, it
was just that quick.
Did you at any point instruct your partner to try
to circle around the other side oi the fence, if possible, to
head him off?
A. It happened too fast.
Q- You didn't think about that?
A- Dell, I v.'ould have thought about it, you know, had
it been a slow process. But like I said, when I told my
>partner and he started in that direction, then the individual
was already up at the top of the fence. And as far as I can
recall, there v.'o.s no way tha,t he could have gone around ajid
circled.
Q- Did you indicate anything to your partner about
whether this individual was armed?
A. I don't recall us discussing that. I'm sure that
the — excuse me. I'm reasonably sure that the individual was
not armed, because had he been armed, I assume that he would
have attempted to show that by i'ijring a weapon, or I assume
that he would have ttirown it down, or I assume tViat I would
have seen it.
Q- V/ell, if you had had any questions about whether
this person was armed, vjouid it have been your responsibility
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to notify your partner of that fact?
A. Delinlte.ly.
Q- And what v/ould have been the normal v/ay you would
have gone about notii'yinfj your partner of that fact?
A. ‘dell,, I '.-.'ould have -- the thj.n.y I would have said,
I guess, is that 'Uo has a weapon' or "He has a gun" and I
would have ta,ken liiore cover th.an what I had.
Q- Did you have a riot ;:un in your car that evening?
A. Yes, I sure did.
0 . During the course of this deoosition I have been
using the term "individual" and so have you. Is this indivi"
dual we've been discussing Ed'ward Eugene Garner?
A. xes .
Q- You later determined that this person was Edward
Eugene Garner?
A. Right.
Q - Did you tell your partner to shoot Edward Garner
at the time you to] d him where he was located, that is, v/here
Garner vias loca,ted?
A.
O
No,
Tali me again what you recall saying to your
partner. «
A. I recall telling him that he was on the fence, on
the side of the house, or in 'oack of the house.
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Q* -Did your partner have a flashlight?
I don't recall.
Q- And then what happened^ after you notified your
partner several times of the location of Garner?
started -- to the tost of my ability, he
started, perhaps e. little hesitantly, around where I v/as talk’
ins about, and Garner started over the fence.
fJ- And what did you do then?
A- As he got to the top ox’ the fence I x'ired one shot
from my service revolver, after — you know — well, we've
already went through the hal't situation and identification
situation.
o I don't know ;;hat that raeans, but we'll hold off
on that
When you fired at Garner, what v/as your intention?
A- Well, I will state that in a roundabout way, but
we are instructed that when v/e fire our weapons that we are to
shoot for the largest portion of the body.
Q- And the largest portion of the body is what?
The thorâ x?
A. The chest area.
The chest area. Well, his chest v/asn't toward you
at this time, v:as it?
A- ilo. I guess his bac'n would have been toward me at
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that time. It v;asn't exactly tov/ard mej his whole body was at
an an<^lc.
Q" His whole body was at an anglej meaning exactly
what? Could you see part of his lace at the time that he was
climbing over?
A.
Q.
A.
Q.
A.
Q.
Just the side.
You could see the side of his face?
Yes .
Could you see part of his chest?
No. Kis chest would have been in front
Could you see his hands at all times?
I'm reasonably sure I could.
Did you aim your gun at that point?
No. It was a point shoulder position. It was not
aimed I lenew that I had the revolver on him, but it wasn't
aimed at any certain portion other than the widest portion of
the bodv.
Q- Under those circumstances were you following the
correct procedure in firing your gun? Let me clarify it a
little bit more.
vvas the way in which you fired the gun according to
proper police procedure, the stance that you took, the way you
pointed your gun, and the way you fired it?
A. I couldn't elaborate on the stance because I don't
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remember exactly how my feet were at the time. But the way
that I pointed it, or the way that I fired it and the position
that I was to hold the revolver in, I would say that it was
correct —
(Interposing) Did you fire with one hand?
A. Yes.
You didft steady your hand with the other hand?
A. No.
is there any police procedure that suggests that
you steady your shooting hand with the other hand?
A- No, not when you have a flashlight in the other
hand.
Q- I see. They don't require you to drop the flash
light under those circumstances?
A. No.
Q* Can you indicate v/hat service revolver you were
using that evening?
A* Yes. I was using a 38 caliber revolver. Model 10,
Smith and Wesson, four inch barrel.
Q.
A.
Q.
A.
Q.
What kind of ammunition did you have in your gun?
38 special.
Was your gun fully loaded at that time?
Yes, it was.
Did you f ire more than one shot?
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Aftei' you fired, what took place?
After I fired, my partner came around where the
individual was goin̂ j across the iencc, and said that he was
bleedin^ oadxy xrom what seemed likethe head,I think he said.
He was slumped over the fence.
/Your partner yelled this information to you, or
stated this infornition to you?
A. He stated it to me.
Q- And then what did you do?
A- I proceeded over to Garner. We got him off the
fence, ana I advised my partner to call for the lieutenant
and ambulance and Crime Scene —
(Interposing) How did you proceed over to the
fence?
A- By stepping across the — what appeared to be the
chicken wire fence.
Q- So, you slipped over the fence, that is, the chicken
wire fence?
A. Yes.
Q- fuid vjent to the chain fink fence v/hcre Garner's
body was draped?
A. Right.
Q- And did you remove his bodj' from the fence?
A. No.
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A. Yes.
Q- Did you do tOat by yourself?
I don't recall. Seeriiinî ly, we both removed it
from the fence.
Q* Let me baclctracic just briefly for a moment.
At the time you saw Garner at the fence, can you
indicate v;hat the relationship of his body was to the fence,
how much fence was above his head at the point he was standing
at the fence? ','as there any fence remaining above his head?
I v;ould think that in the stooped position, he was
probably about halfway the height of the fence.
Q- Co, he was somevjhat stooped at the time?
A- Rightj in a jumping position.
Q- I see .
You are speaking of before the shot was fired?
A. That's right.
(Turning to page 107 of the deposition;)
Q- At the time that ttiis Incident occurred on
October 3rd, v/ho was in charge? Vlere you in charge, or was
your partner in charge? By "in ctiarge" I mean who had the
superior rank?
A. I did.
Q.
A.
Go, you were in charge, is that right?
Right,
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'Thea yoa first perceived a firurc ;r.ovin£ from the
baCiC oi the hcuoe to the fence, '.:hat v/as your impression of
the size of that oerson?
A.
Q-
A.
In relation to what? Hei£ht? Weight?
Knight and we 1 Jit.
Well, I really dihn't have an opportunity to get
a vivid improssion. He looked -- looked like an adult, I mear
by — you knew, by face, by the look, well, I couldn't tell
really from the door to the fence, but once I shined the
light on the icnce, as far as I could see, considering the
lic.htin^ iector, he looked to be about seventeen or eighteen
years old.
Q- r-oll, vaiat sense did you get of his size v;hen ho
was at the fence cind you could see his face?
He vrasn't short, you Ionov:, which would indicate
that he wasn't necessarily that young, and he v;asn't real
i wo'uld s<ay he v.'as in the neighborliood of five-five or
five-seven, and I would say maybe a little larger weight, a
hundred and maybe thirty pomids, just roughly.
Ho you recall whether Garner was wearing a coat
that evening?
I don't think he v;as. I'm not sure.
Would it be fair to say that vdiat you saw, his
physical appeararxee, vjould not have been distorted by any
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-193H
addition?.! clothing or unnccoccary clothin ;?
That’s not necessarily so. 1 don't reinesiber v;hat
he had on.
'-i- I '̂Ce. Yon test if led, did you not, that wtten
Garner reached the fence he paused for a inonient before- dolnj:,
up on the fence?
A. Right.
Q* Could you give any qu?.ntii ication to that period
during vjhich he paused? Kow tnany seconds? How ;:iany ;ninutcs
did he pause?
A. hell, roughly, usinr, my judg'aent, I v.'ould say that
as I appcarcu anvi shined the li.h.t on him and said "police;
halt ' there was a moment of, you hnov;, stopping and looking,
maybe to see tliat I was 'who I said I was, since I ha.d some
light from the house nextdoor. And then, at the same time,
after I finished scylng that, I liad noticed that he stopped a
few minutes, and I vias tellina my partner to ac around and get
him because he had stopped, you know, that's when, after the
second tirae —
•Q> (Internesin;.';) You said you caw him pause there for
a fevT minutes, Do you mean to say that he was in a paused
position for a period of time tiia>t could be measured in
mln’ates?
A- Hell, j. would say, 1 suoss I could say that, yes.
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'.'fell. I'm sure that he could see me.
-19^-
position, you luncw, where he v.t -s Gcttin^ ready to r,L over.
Q. Do you think that Garner could see you at the time
that you told him to halt and th.at you 'were the police?
A.
Q. Why are you so sure of that?
A- Becauoe I was well Illuminated from the li.:;̂ht next-
door,
Q. "Tell, -were you chinlnthe flashlii^ht in his face?
A. I v;as shining it in his direction. I wouldn't say
that I was shinins it directly in his face,
Q. Do you think it reasonable to assume that the liiiht
from your flashll;^ht might have made it difficult for him to
see you?
A. If he had been lookin^ directly at the light, but
certainly not my body.
Q. Did Garner stop after he had turned and looked at
you, looked in your direction?
A. VJell, that's when he — that's v.'hcn he stopped
initially. It hit the fence, you ienow, when I LdcntiiLcd
myself he, you kna.'.
Q. V'ell, I want to get this clear. He stopped and
then looked at you? Or did he look at you and then stop?
A. He stopped and then looked at me,
because It r.eerned as thou^.h he have hit the fence in a
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1 0. iJiU you at any point, durin; the time ttit Garner
]j 2 was at the fence, before you fired at him. turn away from his
1 3 direction. iooi: in another direction?
jJi 4 s\. iio. I did not.
\i141 5 n You did not?
j 6 A. No.
j 7 0. Ycu didn't look at your partner at any point?
ii 8 A. No. I could see him, you Icnow, moving out of the.
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you say side of rr*y peripheral vision̂ , but I didn't
locus on hi:a.
Q - You never tooie your eyes off Garner?
I
A- II0.
Q- You saw iii.Ti every sior.ent?
A- R t.
Q- Between the time that he to the fence and the
time that you shot him?
A. From the time he got to the fence to the time he
was shot, yes.
Q- And durinis that time, 'while you were loolcinc at him
every moment, you didn't move toward him?
A. If I did it wasn't — it wasn't, you know, far
enough to make a difference. It might have been, you know,
might have stopped up a couple of fset or something, moved
closer to the fence as I was -waiting for him.
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Q* VIhat distance were you rouĵ hly from Garner v/hen he
was on the fence?
A. I guess from the corner of the house to that eirea
was 30 — probably 30 or 40 feet, something like that.
Q. 30 to 40 feet?
At an angle. That's just roughly guessing.
Q- Could you have climbed over the fence and kept your
eye on Garner v;hile he v/as climbing the fence?
A. I v.'ouldn't say that.
Q- You don't think that you could have stepped over
the fence, which you testified earlier you felt you were able
I
10 do, and yet keep your eye on Garner?
A. Well, because I didn't linow v;hat I v;ao stepping on
v.’ould have been the thing. I v.'ould have had to look down to
see what was directly on the other side of the fence, you know
step and watch him at the same time, which 'would have been
almost impossible.
Q- You decided that that would have been impossible?
A. Right, To risk stepping over; that's what I had my
partner for.
Q. Do you recall tbs condition of the chain link fence
tliat Garner vnxs climbing over in terms of v;hat it looked like
at the top? lias it rounded on the top? V.as it pointed on the
top? Do you have any recollection?
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A. To the best of my Icnowledfe, I v;oald say it was
like any other storm fence that had the little wires sticking
up at the top.
Q- So, is it fair to say that if someone grabbed the
top of the fence v;ith a certain amount of force, it might
damage the hand?
A. With a certain amount of force, I would say so,
just roug!:ily trying to remember.
Q- Now, at the time that you shot Garner, could you
describe the position of his body on the fence?
A. It was draped ovei*, I believe it v?as draped over
from the waist portion, hanginc, over the fence.
Q. So, his legs were hanging on the north side of the
fence?
A.
Q.
side?
Correct.
And his toro essentially was hanging on the south
A. Correct. And arms.
Q. And a.rms. Did you encounter any difficulty in
removing his body from the fence?
A. It seems to me as though his clothes might have
gotten hung in the wire and might have been sticking up. I
don't remember exactly.
0. Can yovi describe how Garner xvent about getting over
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the fence? wee he cliinbinc? Wee he leaping? 'Kov; would you
describe vjhat he was doint,?
̂ describe it as leapins i'rom a stooped,
position; spring,, where you .̂rab and pull and spring at the'
sa-Tie time and you plunge over the fence.
VJellj did you observe him at the fence, not
climoing up the fence, but spring up and grab the top of the
fence? la that '-.'hat you savj him do?
hell, now, that particular movement happened
rather fast, and I wouldn't want to swear to say that he
sprung up and grabbed the top; but I didi't observe him climb
him, to the best of my huiowicd^e, it v;as a leaping.
Q.
A,
Did Garner say anything to you?
Nothing.
(Turning to page 114:)
MR, DAYG: Please mark this
the neat exhibit for identification.
(VJhereupcn, said PHOTOGRAPH
Vio-.; maxkcd EHIIBIT p ior identification
to tile deposition o.C ttie viltness.)
I!.' . hy.r.on, 1 want to hand you what has been marked
Exnibit 5 for identification and see if you can identify it.
(Passed to witness.)
that seems to be a picture of me, rcut̂ hly from
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behlnd. I v;oaldn‘t swear to It.
(Turning to page 115:)
Do you have any knowledge of when that photograph
was taken?
Judging from the picture I would say that it was
me, and I assume that it was taken vjhen Crime Scene arrived.
To the best of your recollection, was that photo
graph taken on the evening of October 3rd, 197 1̂-?
A. Yes. ,
MR. DAYS: That is the end
of the portion of* the deposition that
we wish to read.
THE COURT: All right, sir.
He will take a recess before you call
your next witness.
(Recess.)
THE COURT: You may call your
next v.'itness.
Whereupon,
DAN L. JONES..
the v/itness, having been first duly sworn, v:as examined and
testified as follows:
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Q.
A.
DIRECT EXAMINATION
BY MR. BAILEY:
State your full name for the record, please.
Dan L . Jones.
-200-t
Q- And are you not Chiei of Detectives with the
Shelby County Sheriff's Department?
A. I am, sir.
Q. Hcv; lon»3 have you been v;ith the Shelby County
Sheriff's Department, Chief Jones?
A. 21 years .
Q- And I suppose in your 21 year period you probably
have run the ^amut in terms of departments of which you have
served, is that a fair statement?
A. Right.
Q- Have you had the opportunity over your history with
the Sheriff's Department to be involved in police field work.?
A. I have.
Q. You were a patrolman for many years, I talce it?
A. I was .
Q. And while serving as patrolman, I take it, that you
had the responsibility of apprehending suspects? Is that not
correct?
A.
Q.
That is correct.
Even fleeing felonious suspects?
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A.
Q.
A.
Q .
- 201 -
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I beg your pardon?
Fleeing felony sucpects even?
YeSj sir.
And hov; long have you been Chief of Detectives with
the Sheriff's Department?
A. Since January 1, 1976.
Q. And how many are under your control?
A. 38.
Q. How many men are employed by the Shelby County
Sheriff's Department?
A. 475.
Q. I see. And prior to becoming Chief of Detectives,
what was your primary responsibility?
A- Supervising the Detective Bureau, Fugitive Squad,
all the detective functions.
Q,. I see. And for the record, what do the detective
functions entail?
A. Mostly investigative work.
Q. I see. And does that range all the way from
assault and battery to murder?
A. It does, sir.
Q. All right. Did you have the occasion to be a field
supervisor of patrolmen?
A. I did, sir.
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Q. And how lontS did you serve as a field supervisor
of patrolraen?
A. About lour years, if
Q. And now j.on̂ ego was
A. Ipoj tiu’ough '67-
A And Chiei' Jones, in
lUent have you iia.d the occasion
workGhcpG c.nd conventions and t
r- Yes_, six. I have.
Q. All ri^lit. Now, and 1 take it you have had the
occasion to lecture to recruits on police apprehension of
suspects?
A. Many occasions.
Q. And nave you partaken in co-authorin^ manuals and
otrier £;,uidelines and sendlnî out mcaioranda regarding the
appreher;rsion of suspects?
A. I hadn't sent out any merao'̂ anda, but I am familiar
with all the -- I ttiink I am familiar with all aspects of
the metfiou of arrest.
Q. I see. And are you xa'iiiliar pretty much with the
standard, ,_.cnsral standard of o-pprehendin:,, suspects in this
community?
I believe s:.
I'low, incidentally, have you icetureu and taught
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recruits regarding the use oi firearms?
A. I ta/'e.
Q. And when it's proper to use firearms and when it's
not proper to use firearms?
A. That is correct.
Q. And have you not also lectured and taught recruits
as to various alternatives to the use of firearms in trying to
apprehend suspects?
A. I have, sir.
Q. Now, incidentally, regarding the standard of appre-
%
hension, is the standard in this community such tl:̂ t one
exaausts all methods prior to using firearms in apprehension
of a fleeing suspect, felonious suspect?
MR. KLRIK: I am going to
object to that question. Row, we're
getting into a field, and I think I
Icnow where we're headed, but I can't
object overall.
I would have objected to
this man's testimony in the beginning,
because I think I know what he is going
to testify to, but I iufow Your Honor
would be in no position to rule on it
until we have heard what he had to say.
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But what the standard in this
conimunity is I think has nothinji to do
with it. I think tliere is a statute
v;hich controls the situation which we
h.avc here a.nd I tiwlni: eacli case has to
fall on its own, and I believe there
isn't any standard which prevails in the
conmunity which would be controlling, or
have ai\y effect or should have any
influence qo the Court in its decision
•%
in this case.
So for that reason. I'm going
to object to what he labels as the standard
or custom in the community about when and
when you aon't use firearms or how you go
about apprehending, 1 assume a fleeing
felon, if that is what your question is
directed to.
THE COURT; Mr. Bailey.
MK. BAILKY: Your Honor, our
position is that there is a standard in
this section of tlie country, just like in
all sections of the country, regarding
poor police work as opposed to good police
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work with the statute, of course, being in
mind, and operating, and of course, good
police and poor police work being determi
native in reference to how either of the
other is done in accordance with the law,
and that is the thrust of our questions;
is he not familiar with such a standard in
this section of the coimnunity.
THE COURT: I'm going to permit
the question to be asked. I am not ruling
on the Defendant's objection as to whether
or not the witness's response, if he does
so respond that there is such a standard.
I am not ruling at this time that the
Defendant's objection is or is not well
taken or whether it's material or whether
it's relevant to the issues that may apply
here on the question as to whether there is
a legal standard that is or is not to apply
here, and whether or not, of course, the
actions in this individual case comply
with the legal standard remains for us to
hear all the proof in evidence.
MR. BAILEY: Very well.
%
o r f'b t )
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Q-
THE COURT: But I will pelnait
vou to ask the question oi' the 'witness, if
ae undersoanus and has a response, to make
his i'csnonse subject to tiie objection made
by the iJclenĉ .ant.
(By 14 T. Bailey) Chief Jones, is there not a
sbejidard of conduct expected out 01 officers in this
ccnuiiunicy based on your experience end exposure regarding
r roper metnods Ox' apprehension oi suspects?
I don't understand 'what you're getting at.
MR. BAUjLY : All right. May I
rephrase the questioii?
•THE COURT: Yes, sir.
K.
Q. (Ey Mr. Baiicy) Is there not a standard of conduct
\vhat oificers arc expected to follow regarding the apprehen
sion of fleeing felons, or any suspect for that matter?
My only response is that an officer is trained
aurin̂ j 'nis interi.n period as an oLficcjL’ and receives training
tiiroughout his career in this regai’d and all other aspects of
law enforcement.
And is it not Grilled within him proper methods
of apprehension of suspects?
Viell, again, the officers are trained in the appre
hension ox fleeing felons and the apprehension of suspects.
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I see. Now, what is the training, th-e standard of
training around in this area regarding the apprehension of
fleeing felonious suspects, or felony suspects?
A- Nej.l, here again, they are trained to protect
themselves and that e fleeing felon is a fleeing felon and to
make the arrest.
I see. Now, at what point are they taught when to
shoot and not shoot?
This is included in the training and primarily they
are taught to protect themselves.
Q- I see.
■f'- And to apprehend the suspect.
Q- I sae. Now, in .reference to the apprehension of
suspects, are they taught when it's better to at least, when
it's proper or at what point it's better to use a weapon as
opposed to not using a weapon?
MR. KLEIN: I think my objection
is a continuing, one.
THE COURT; All right, sir. It
may be treated as a continuing objection and
you mE,y proceed.
MR. DAILEY: Very well, thank you.
A. (By the witness) Would you ask the question again?
Q- Are officers taught what conditions they ought to
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use their rirearm in trying to apprehend a fleeing felony
suspect?
A. Yes, they are.
Q- I see. And is that sort of the standard? That ■
teaching and trainin,_,, is that baseu on a general understand
ing of vdiat a standard is?
A. I thi.nk so.
Q- All ri ,ht. And of course, you are familiar with
thiat standa.rd in tlie Memphis area, are you not?
A. I thinh I am.
■%Q. I take it you consort with police officers as well
e.s -- and viorK hs.nd in glove with police officers and under
stand their basic training, and I take it the stauidards are
pretty much the same, is that not correct?
A. I think that is correct.
Q- Very well. IIov/, assuming. Chief Jones, that —
MR- BAILEY: Your Honor, may I
approach the diagram?
THE COURT: Yes, sir.
Q. ('By Mr. Bailey) Assuming that this home is the
subject of a. burglary, facing northwardly, and that there is a
vjooden fence some six feet or five and a half feet running
along the ee.st side of this home; assuming further that there
is a rear chain link fence some five and a half feet in
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n 1 height and a small chicken wire fence some thre.e feet in
2 heightj and that this area from the chicken wire fence all the
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! 3 way around is fully enclosed, assuming those facts; assuming
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further — incidentally, at my request I believe you went out
i]i 5 and looked at this?
! 6 A. I did, sir.
7 Q- All right. At 739 Yollentine?
3 A. That is correct.
9 Q- And you recall seeing the chicken wire fence?
10 A. Very well.
Q- The wooden fence bn the side?
n
A. I do, sir.
1 13 Q- And 'was this not a fully enclosed area?
1 A. It is, sir.
IS
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Q- All right. Now, assuming those facts, and assuming
1 16 further thaf we have an officer who is six foot four, the size
17 of the Defendant, Mr. Hymon —
18i< MR. BAILEY: (Interposing)
i 19 Your Honor, could 'we have Mr. Ilymon stand?
! 20 THE COURT: All right. Mr.
; 21(i Hymon will stand.
1; 22 (Whereupon, Mr. Hymon complied
i' 23 with the request of the Court.)
24 Q- (By Mr . Bailey) The size, of Mr. Hymon.
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THE COURT: You may be seated.
Q- (Bj Mr. Bailey) Assuming further that such an
would receive a call that a burglary, or at least a
strong notion that a burglary is in process and that he
appeared with his partner and left the vehicle in front of the
homej and that he approached the home from the rear and
stopped at the -- regained — I mean^ made his position at the
southwest corner, right here whore the chicken wire fence
connects v:ith the home; and assuming further that some 30 to
4o feet away that he observed a burglary suspect flee from
the home and he had every reason to believe that a burglary
v/as in progress, that a burglary had, in fact, been commited,
and that tne perpetrator of the burglary is a teenager,
seventeen or eighteen years of age, weighing anywhere between
five and I mean, I'm sorry — weighing somewhere ai^und
130 pounds, and that the burglary suspect is from a height of
five feet five to live feet seven, and that is unarmed,
obviously unarmed and in a stooped position after being told
to halt after running from the home that was burglarized; and
assuming further that the officer had had his flashlight, that
he is left handed and had his flashlight in his right hand,
and his 3S service revolver in his left hand; and assuming
further that he assumed that his partner, or at least saw his
partner, or thought he saw his partner approach the rear of
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the house from the east side of the victimized home, or the
site oi' tl:e ailet.ed burglary.; anci a.ssuminî further that the —
and stop me at c.ny point you feel desirous of stopping me and
repea.cin;_, -- and assuming furtiier that the teenager, seventeen
or cL̂ litcon year oli.l by appear: arc bo the officer, turned and
locked at the officer and the officer liad his spotlight on
him, after telling him to-halt, that he did halt and remained
tiuTC j.or sorAG several minutes, would tin — and again, that
of.C.i.c!-.X' is fuj-ly av.are that -- he iuis no reason to believe
tixat the suspect is armed and Liad seen his hands, has no
reason to believe that taere is anymore than one suspect,
v.ouiu the Ou-iicer have acted properly when the suspect stopped
in tiic rear of tlxe ijomc in not proceeding, to advance tov;ard
the suspect in lurking tti.e apprehension?
MR. KELIi!: Your Honor, I object.
THE CUUuT; M l right. VJhat is
tne casis of your objection?
MR. KLhIII: lour iionor, number
one, he is assuming a lot of facts that
aren't in tiie record riui tliat aren't
cox'rcct. 1 luio’.v Vie iinvc I'cad into tne
record the deposit it.e, ox Mr. Ilymon. We
haven't read all of it in and I vjould
at my proper time I can read
assume ohat
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Other parts of it into the record. •
Furthermorej he is askin̂ ̂him
to pass on a hypothetical question, and I
presume, give an expert opinion which
really is what this lawsuit is all about,
and what I think is left for Your Honor to
decide.
And I don't think that it's
proper to let him — aa,ain, I don't say
this in a disparaging way, but as a so-
called expert testify what the man
should or shouldn't have done under
those circumstances, because again, as
I say, that is the issue in this lawsuit.
And 1 don't think it can be treated with
an expert witness.
THE COURT: '.-Jell, under the
new Federal rules, is it not so that where
the former objection obtained that it was
invadin:̂ the province of the Jury or
invading the province of the prior fact
that that is no longer a basis for sustain
ing, an objection to an expert's opinion or
conclusion relating to matters that may be
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forthcomlng and further, in respect to
just a.bout e'.’’ery product liability case
that comes up before the Court, the
Plaintiff, before I get through with
the Plaintiff's proof, has ashed an
expert or experts, assuming such and
such and such and such, would it or not
have been a proper course of conduct for
the Defendant manufa.cturer to have put
this guard on here or to have done this
or done that, which is the ultimate fact
that the tryer of fact has got to deter
mine, whether or not they produced an
unreasonably defective piece of machinery,
whether it was unreasonably dangerous, an
exoert is called upon to render his opinion
on that subject.
Merely because It bears upon
the ultimate issue, is that a basis xor
your objection as to a n expert's opinion?
lAR. KLEIN: That is part of it.
Your Honor, and the other part is as I say,
he is a,ssuming facts that are not correct
and only time and the rest of the proof will
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. show what the facts are, or there may be
some facts that are in dispute and as I
say^ the facts that he has posed to this
gentleman at this point are not really
what I submit to the Court the facts are
coins to ultimately be.
THE COURT: Well, I'm coins to,
at this point at least, to overrule your
objection to the witness's response to the
question as put. Vjhether or not it includes
all the actual facts that are involved,
whether or not there may be other factors
and other elements that oucht to be taken
into account with regard to that matter,
remains for further proof, but I will
overrule it as being addressed to the
ultimate issue in this proceeding.
MR. iCLEIK: All right. Your
Honor, one other point, a.re we considering —
as I say 1 am not belittling the qualifica
tions of this man at ail -- we are consider
ing him as an expert at this time, because
that is the only way I lenow that he would be
entitled to give such an opinion?
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THE COURT: Mr. Bailey?
MR, BAILEY: Your Honor, of
courEo, we tender Lira to the Court as an
expert in the licid of apprehension of
GuspectG and there Is no Muestion Chief
Jones is cecond to none in terais of
qualifications and credentials and
experience ana trainin^, and has himself
iectui-ed and tau;_,ht recruits rejiardins
the methods of apprehension of suspects
of all sorts, inclucJn̂ fleeing felon
ouEpects and the proper use of firearms
under such circLUfiO eareccs .
THE COURT: Well, I'm going
to overrule the objection on the basis
that has been stated that he may testify
, if he understands the question that has
teen asiced.
Q. (J3y Mr. Ealley) Ch?'.at’ Jones, assuming all of
these facts that I have just tcli"* you -are true, would the
officer v-’ho '.:ou3.d have been sta.ndin'; some 30 feet away right
on the corner, at the southwest corner of this chicken wire
fence, who Incidentally, could have stepped over the chicken
wire fence, v/as tall enough and i.ho felt he could have stepped
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ovGr it, v/ould he have acted preecri:; and accoraln;., to a
proper standard c- conduct in not stepping, ever the fence and
goin<j; toward the eucpcct where the suspect had stopped and
looked at hiei for noeie several rinutes or seconds?
'-̂hlr. Is very, very hard to answer because I was not
Oh th>. sc-̂ ne and v;as not farniliar with what happened and lenow
nothing about it except what I have been told. I did go cut
and lock at th.c property and spent soxe titne walking around
tl house anu aocking at it aiyscli in the uayti:,ae, and I'm
assuming that by use of his ilashlight this cccur-rcd at night?
Q*’ YeSj sir.
want to be cars tliat 1 understood you right
wh.n you askea rc, told me ratner, that the officer had a
flashlight in ais hand and -well knew tnat the Defendant was
not armed?
Or Yes, sir, sav.' his hand grasping the fence.
Aiivi in 1 expense uo uhat fpucstion, I can only say
thCî I wouiu not have shot the suspect 'tgi'Eeli .
MR. itLElII: I object. Your Honor.
Rothuvg has been said about shooting the
suspect.
THE COURT: I'll sustain the
objection to the response under the circuni-
stances.
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(By Hr. Bailey) My question is really, v/ould ttie
officer have acted properly in not movin£ tovjarcl the suspect
but reinainin^ there on the other side oi the fence and making
no adVance.-nen t?
I t'iiinr; the officer shoula have moved over the
fence and apprehended him.
Q- Hew, assuminc further that the officer felt that
his partner .vas cn the other "ice, vdiether he was or not,
vcule you still r-aintain the tarn opinion that he should have
advariced toward the suspect and tried to apprehend him?
A. I would.
And would you say the fo.ilure to do so was not in
accordance with proper standardr, as you ’onderstend them?
MR. fiLLIh; Youjr Honor, my
objection is a ccnblnuin^, one.
THE COURT: Yes, sir.
A- (By the witness) Let me say again. Hr. Bailey,
tha.t I v;as not there —
Q- (Intcrposin;^) I understand that.
A. And I’m not familiar .•;it!r any aspect of the case
at all, and 1 luiow.aG you knev; end the Court knows that every
case is different and stands on its own merit. So I can only
E-cy, or Gn.ev.’cr you the way I r..e It, the v;ay I think I would
have done.
> 380
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Q- But in your opinion, based on your training and
experience and understanding of the standards of apprehension
of fleeing felca suspects, you would have advanced tovjard the
susoect?
Q.
house?
I certainly would have.
Even il your partner wa.s on the other side of the
I would have.
Q. ASGuarln;- you could ha,vc stepped over the fence?
A. Yes, I would have.
•%
Q. V.'oald you have heoitatea at any -- would hasteness
ana movement, tow.iu'd the suspect been Important in that kind of
situation, or is it important?
A. Yes, It is.
And although the officer is telling his partner,
•'There he is over there by the fence. Go over and get him,"
with his ila.shli^ht beamed on him, did he still have the
responsibility of stepping over the fence and moving very
quickly himself?
A. I would think so.
Q. Instead of relyini_, on his officer?
A. I think that is correct, yes, sir.
MR. BAILEY: Your witness.
TliE COURT: You may cross-examine
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vfithout waiving the objection that has
ui'eviouGly been made .
C R 0 S 3 E A i \ I i l i i A T I O N
3 Y 3 1 1 . K L E I N ;
Q- Lo you Imow Captain Coiatta oi the Memphis Police
jjcpartaent'7
A. ■ Very v;cll,
Q- Have you ever attended any oi the seminars that
they ^Lve Cut there at the TrainLrii:, /.ca.demy?
A. Yes, sir.
Q- Have you gone through their Training Academy?
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Q> jjo you i'joow w’uat Lh-:y teach out there at the
Training Academy?
A. I priiearily ienov; hhc.t they teach, yes, sir.
Q- Do you ail have a separate Training Academy your-
eeil, memoers oi the Sheriii's latrol?
Q.
A .
Ci.
A.
Q.
t e cio •
Have you ever instructed at tiiat Academy?
Yos, sir.
what did you instruct at that training session?
Laws Cx arrests primarily.
Laws. All right. Arc you iaraillar with the
Tennessee Statute on the apprehension and arrest of a fleeing
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re Ion?
A.
Q.
A.
Q-
felons,
X thinly so.
And winat does that statute say, just in summary?
The Tennessee Statute on arrests?
Yes, sir. I'm taihin^ about apprehending fleeing
A. Well, I have been involved with it lor 21 years.
I can't cite it to you, but —
Q- (liiLcrposino.) I'm not ashing you verbatLm because
I probably coulan't do It myseli, but just what in essence
docs it say?
A. That an oliicer is to apprehend a fleeing felon,
Q- All right. Does it say by what force or by what
means he can apprehend a fleeing felon?
A. Yes, it says, but I aon't recall the exact wording
of it.
Q. well, can an officer use legal force to apprehend
a fleeing felon?
A*
Q.
A.
Q.
A.
Q-
Yes, sir.
Whether he is armed or unarmed?
That's right.
It doesn't make any difference, does it?
That is correct.
All riaht. And it's reaxiy up to the officer to
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act, and usually vjhen an officer is confronted he has got to
act in a split second or on a second’s notice, is that correctV
A. That is correct.
Q- And he has to think quickly and do v/hat he thinks
is rigLit in that split second's ti;ris? Is that correct?
A. That's correct.
Q- All right. Now, you said you went cut to this
scene v/here this shoo tin,occuri-ea?
I did, sir.
v/hen aid you go out to the scene?
Protably three v̂ eeks ago.
Ail right. At Mr. Bailey's request?
Yes, sir.
All right. Aind for the purpose of what?
fa-miliarising yourself with the scene so you could come up
here and testify, is that correct?
A. Yes, sir.
Q. Are you under subpoena?
Yes, sir.
A.
Q.
Q
ii
Q- All ri.,ht. Now, as you pointed out, you don't know
what the circumstances were the niglit that this shooting took
place, is that' right?
A. I ienov; nothing about it at all.
Q. Ail right. Now, i.i Mr. Bailey pointed out to you
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that you were to assume certain things and that the officer
in question was coming around the west side of the house, and
he comes to this small fence, v/nich you say is still out
there and intact, is that right?
A. That is correct.
Q- How higli is that fence?
A- It'e four feet high. I didn't measure it, and I'm
issumin.j>, it's lour feet high.
All right. And you're familiar with this back
lence tliat runs along the back line of the property line?
A. Chain link.
Q- How tall is that fence?
A. I didn't measure it, but 1 would guess it's six
feet.
'•i- You would guess it s six feet?
A* That is what I assumed when I saw it.
Q* All right. How, again, assuming that the suspect
was shot over ixi this far corner, 'which is the far corner of
the fence whore it comes crosc to this little outhouse, you
know what I'm talking about there?
A. Right, yes, sir.
Q* Uo you have any idea hovj far distance-wise it would
be from tho, say, soutlrwest corner oL' this house or just beyonî
tne soutn'WGSt corner of this house, over to the corner of the
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outhouce?
A. I diun' t knov; ur\tii today where the incident
occurred as iar ao the fence 'was concerned, but to answer your
question, I v.'ouiel f'uess 60 feet.
P- I see. I see. All risht. Now, you said that when
you 'were basins;, your opinion upon — you said in your opinion
the officer should liave ;i:oved to'ward the felon to apprehend
him?
A. Yes, sir.
Q- vtorc you assucainG triat the felon or the suspect was
still on tu'3 ;_rcuiid, or were you asnuminji he was attempting to
climb the lence:'
I was Eurninc, the r/uepect was still on the ground,
Q- Still on the ground. So if he remained on the
ground — in other words, the officer comes up, he has got a
flashligrit in his right hand, he has got his service revolver
in his left harid, and he shines his flashlight over to that
iar corner, and he sees the suspect over in that far corner
by that chain link fence and let's say he is in a squatting
position —
A- (Interposing) All rif̂ ht.
Q- And at that point that is when you say he should
have moved to'ward the suspect to apprehend him regardless of
what his partner raay have been doing, assuming his partner was
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coniing around the east side of the house?
A. Yes^ sir. That is the vjay I see it, yes, sir.
Q- And taat is what you're x̂ redicatinti your testiiaony
on, is that ri£iiit? The fact that tha.t suspect was still
squat tiHjj down by tliat xcnce and that the of fleer load his
rlasiili(;;,ht on hi'iv?
A. As I said, I didn't ienow where the suspect was
before you ^ot up, but if thaeSwhat you're saying, you're
asnin^ uie if 1 feel the officer should have pursued him at
this point squa.tting down?
Q. Yes, sir,
I think he should have.
Q* All right. You said you didn't know vdiere the
suspect was prior to intei’rcgatin^ you?
A. As far as the fence —
MB. BAILEY: Your Honor, I
wish Mr. lU.ein would not argue with the
witness, and give him an opportunity to
respond thoroughly to his questions.
THE COUBT: Well, if the
witness has not had a xull opportunity
to resi)ond, he certainly will have a
full oxjportunity to respond before
counsel proceeds to the next question.
38<
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Q* (By Mr. Klein) Mr. Jones, don't let -ms cut you
off in .any way .and I don't Intend — I don't mean to be
arguing with you.
A. Fine, I I'now that.
Q* I thin': you undercto.nu that. But my question to
you is that when you gave your opinion in response to Mr,
Bailey's quest ion., y'cu said th.at th.at was based upon the
suspect being ever in the iai’ corner oi the yard, but that
you didn't knew nrythinj.̂ aeout hin. being on the fence until
I started interrogating you, is th,?.t what you're saying?
A- 'I’hat is :ny unde r s tana in v, the way I took it,
Q- Aii rif;at, ail ho as far as you're concernec
in „:.ivln_, yoer opinion, the: suspect was aointj nothing but
remaining in o, squatting position?
MB. Your Honor, I
don't 'ociieve Mr. Klein is correctly
restating my assumption of facto. I
also indicated that one suspect had
grasped tiie fence v.*Ith his hands.
THE CO'UTiT; V.cli, he may
crosE-e:-;a:;iine and ii counsel is incorrectly
statin,,, any of these :'..attcrs, you may pursue
1 e.
MR. BAILEY: Very well.
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(3y Mr. Klein) II I cay eomething ivTTongj you
correct at;. Ac I cay, I want to to sure I understand what
oour opinion is ..oced upon. That Id reaiiy what I'm driving
at, . ij one .
lo I wf:c uadcr the opinion that tiie suspect was stand
ing at or near tiie lence.
Q- A i l rj.;\ht.
A. hut I iiava no knovnU-;e,_,c Ol the Dsi'enUant or the
ueceaccu sitting on the ground or cc you called it, leaning
over.
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'i- All reght. All ricJit. Was your opinion based upon
the suspect iiavh.n̂ , aio hands on ciie ience or touching the
lencc in any way?
I don't believe that v;ou±d have changed my opinion.
■•I' iiil right. Vihat ii tlie suspect was climbing over
the ienceV
Q.
i thinh it would he
You think, tuat vioal;. cnan;̂ e your opinion?
1 do,
Q- .'i-ti ri[,ht. What wouiu yowtv opinion be ii the
suspect was climb in:, ovei' ti:c xcnco?
Q.
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/vnd X hod told hl:.i to dialt, police ?
On one occasion or ;uorc?
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Q* Yea, sir.
A. VJeii, I 'oliinic tae i.Lrst thin̂ , I wouiu have consi
dered was the si;:e ol the suspect, and probably tried to
consider the o.-: the suspect in this short period of time
that you caii a split decision waicii is a hurried decision,
and I just don't iuiow what 1 would have done,
Q- All ri-ht, sir.
A. 1 never have shot anyone and I hope I never have
to shoot anyone.
Q* V.’ell, it iioes without saying, I don't think any
good responsible law officer chcrisheo the thought of having
to shoot anyone. That is true, isn't it?
A. That is right.
Q* fvll rigiit. But you're franJily saying you don't
i-uiow what you would have done, is that correct?
A. That is right, if the suspect was climbing the six
ioot chain link fence.
Q* All ri^ht. And let's assume that the officer is
not in a position to really tell what is on the other side of
that six foot chain link lence except that he believes that
there is crush or undergro'wth or such as that on the other
side, which would maite it difficult for him to maneuver or to
find tne so-called fleeing suspect. Is that another factor
that vjoulu enter into the officer's judgment?
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A. V.'ell5 here again, I would only have to assume that
tiie officer probably didn't knevj what was behind the fence at
that time, as v.'C know today It was a ditch behind the fence.
Q. There was a ditch behind the fence?
A. There v;as.
Q. ifnerc is the ditch behind the fence?
A. Just to the other side.
Q. iicw, wc-'rc talkin,. about this ctiin link fence?
A. That is right, the chain link fence.
Q. Kow deep a ditch is behind that?
A. I couldn't get that close to see the size of it,
but there is a ditch, a dralna.„,e ditch thei'e,
Q. All rie,ht. And you actually sav/ that when you
were out there?
A. That is what I took it to be, yes, a ditch.
Q. v.'as it something that you could negotiate, the
ditch? In other v;ords, was it a real deep ditch or are we
talkin̂ ., about a shallow —
A. (Interposing) This y’o.rd has dogs in it and I
uidn't get that close to it, but I sav; that there v?as a ditch
there.
Q. I see. VJell, quite likely at night the officer
v;ouidn't be able to see that ditch, would he?
A. I 'wouldn't think so.
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Q* All right. So again, assuming. I'm asking you to
assume that the cl'ficer in this brief moment when he looked
back there — ox course, only wlch the aid of his flashlight,
and let's assume also that there ''.’as a porch light that had
been turned on ner.tdoor, at the house to the west of this
house, but that it didn't really illuminate all of the back
yard, it v.’asn't particularly llluminatin:: as far as this back
fence is concerned, but in the oificer's mind, or at least he
thouunt he brush and undsrgrouth and it was sort of some
what of a thiclct bach there, that would be another factor
that 'would enter into his —
A. (int'erpesing) I think so, yes.
Q- That mi,Jit be a factor tliat he vjould consider in
whether or not he exercised the use of lethal force or used
uis firearm, would it not?
A. he're still going on the assumption that the
Defendant v:ac clii'jbing the fence?
Q- fcG, sir.
A. I v.'ould think that is right, yes, sir.
Q* It could well be that in the officer'.^ mind that
once the suspect ,_ot over the fence, that he 'would quite
possioly be unable to apprehend him, not knowing altogether
what is back in tiiat area on the other side cf the fence?
That is ciuite possit'.lc .i .
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Q- And that ir he didn’t resort to the use of lethal
force, then the suspect may ^et away?
A. That is correct.
Q- And if the suspect aiay ;ct away or there is a chanc^
or an officor r.ray think In his o'.n ■nj.nd that the suspect may
G,2t av/ay and the officer is convinced that he is a fleeing;
felon, then under State lav; he would be justified in using, his
firearm, v/ould lie not?
A. Under f’le lav:, he would.
Mil. KLEBI; That is all I have.
THE COURT: Excuse me before
you start, Mr. Bailey.
Gcntlcnven. 1 asked counsel to
come in on the case, -.ve liave a communica
tion from the Jury a.nd we’re awaitine; Mr.
Karweli and I would like to advise with
you as soon as Mr. Harvrell appears. All
riG,ht, ^ou may proceed.
RE - D IP. EC T EXAM IN AT ION
BY MR. BAILEY:
Q- Chief Jones, for purposes of clarity, assuming
again that the officer is 'at the southwest corner at the
chicken vn.rc fence, suspect boin;, some 30 feet away5 assuming
further that the suspect has stopped in heed of the officer's
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command to halt and has turned toward him and looked at him
4or some lapse ol time, v;oulu your testimony be changed any
that the officer should liave — if he could have stepped over
the fence by his own admission, assuming that he would have
been Justified in remaining tiiere o.nd not advancing toward
the suspect?
A. Ho. I think he should ha.ve gone to the suspect.
Q- liow, assuming further tliat the suspect was in the
process Ol scaiin,, the fence and liad completely stopped in
obedience to the o;>.ficer's demand to halt, and he stopped on
the fence, would the officer have been proper or should he
huive under those circumstances, since the suspect had stopped,
moved toward the suspect in order to secure his prisoner?
A. I believe that I would have continued to move towar
the suspect, especially l.i. 1 imew and had seen that he was not
arracd.
Q. fuad it wouldn't ixavc made any difference what
portion of the fence he was on as long as he had stopped in
obedience to tf.c officer's demand to halt?
A. Here again, I just v;ant to say that I v?as not on
the scene and it 'would probably be different had I been, but
I would have pursued the suspect.
Q. And I do believe you said hastsness was of the
essence in a situation like that?
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that is Txide instantly, which most of them are.
Q- ■.'.'hen a suspect halts, isn't hasteness and quiclcness
oC the escence in '-lovinij iminedlately toward the suspect to
secure him, icnowiu.,, that he isn't armed?
A. That v;ould be the procedure I would have followed.
MH. BAILEY: Very well.
Thank you.
THE COUF.T : Anything, further?
MR. BAILEY: Cns.iurther
question. Excuse isc. Your Honor,
u- (B> Mr. Ba.lley) I believe I meationed or used the
concept "Co'UTiuaii.y standard" and v;hat I have reference to Is
what is reasonable under the circumstances. I believe we both
understood that to be the mcanin̂ j of community standards, is
A. i/ellj it ‘ s like Mr. Klein said, here is a decision
tiiat not cor roc t?
A. Correct.
MR. BAli.EY: Mr. Klein.
RE-CROBS EXAMINATION
BY I’iii. KLEIN:
Q. Mr. Jones, again, novj v;e're talking about assuming
certain thin;̂ Gj but again let's assume tlruit vihen that officer
gets around to the corner oi the house, tho officer who has
get the flas>ilight and the firearm in his hand, and that he
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n 1 calls outj he secs the man ruantat- out the back- doer and head-
2 ins for the back fence, and he calls out for that man to halt.
3 and that man does pause momentarily — we’re talkins about
\
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1 5 we're talking about seconds.
I1i 6 A. R ight.
i
i 7 — because you and I both Innow that these things
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8 don't happen in a. matter of minutes.
i
\i 9 MR. BAILIf5f: Your Honor, is this
111« 10 a commentary or is he asking him a question?
\
\ n THE COURT: I'll sustain your
12 objection to the ccmTient.
13 (By Mr. Klein) And then assume further that after
14 he halts before attempting to scale the fence and before the
1
i 15 officer has had a chance to cross over the little fence, the
i 16 three to four loos fence, then the suspect starts to leap over
i 17 the fence, is iis.lfway over the fence.
i:'i
..i 18 How, cjre you still saying that you would move
19 toward him or would you do v^hatever is necessary to apprehend
> 20 the Reeins felon even if that means using firearms?
--S 21 A* I 'would have moved tov-jard the suspect.
22 Q* Even after he has already started to go over the
31} 23 fence?
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Q* Ho’.v, you said in your estimate it was 6o feet,
A. ifeilj that is my estimate.
Q- Do you think you coiiid have caUjj,ht him? You could
have apprehended —
MR. BAILî Y; (Interposing)
Your Honor, this-is argument.
THE COUF.T: I'll sustain the
objection.
MR. liLEIH; Well, now. Your
Honor, he is saying v;hat he would have
done under the circurastancss and we're
talking about a 60 foot difference and
I 'want to knovj if in iiLo opinion whether
he thinks that he, the officer, could
have apprehended him 60 feet away where
the man is already —
THE COURT: (Interposing)
I'm not prohibiting you from asking
'Whether he thinks under the assumed
circun-istances he couia or could not
̂ nave apprehended him.
MR. IfLEII-I: All right. That
is my question.
{by Mr. iilcin) Do yo’u bliink that the officer couldn
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have apprehended him some, as to say, 60 feet away where the
^^-iher is still on the other side of the chicken v/ire fence
and the suspect is in the process of leripine over, vaulting
over the vilrc fence?
A- I don't know whether 'as could have apprehended him
or not, but I’ll put it this way, he could have been a lot
closer to the suspect. 60 feet Is no great distance in the
first place, and the fence would have been very easy to get
over, the three or four feet hogwlre fence, is wnat it is,
for that officer or me either, because we're both tall, but
all I can say is that he would have been closer to the suspect
In getting cloeer to the suspect, the suspect, I believe
you're saying that he is cllm'oin,g the fence at this time.
Right. Assume he is climbing the fence before the
officer has even stepped over the chicken wire fence.
I tain!" he could ha.ve been much closer to the
suspect because it takes the suspect time to climb the chain
link fence and, of course. It takes the officer time to climb
over the hogwirc fence.
Q. Right.
’-vlnat I’m trying to say is that I think the officer
could have been closer to him than at the fence where he was
at the corner of the house.
,cil, but isn't it likely, Mr. Jones, tnat by the
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ti:ne that the o m c e r sets over the chicken wire fence, the
cucpcct is already over the si:c ^oot chain link fence?
MR, BAILEY: Your Honor, I'm
oolws to object to that. V/e're c,ettUiz
into an area that Is hi,_̂ hly speculative.
He said — Mr. Jones indicated that the
officer would have boon closer, and It
seems to me to ^o beyond that, to try to
specuia.tc v;hat the suspect would have done,
wiTcthcr he v;ould have kept movin;̂ forward
or trying to escape apprehension or whether
ha woai.l have stopped because of the offi
cer's beinr, closer, is a matter of great
speculation and I think improper.
■ THE COURT: I'm going to
overrule the objection, Mr, Bailey. I
agree v:ith you in what you say, but this
vdioic area Is hiphly difficult, as the
'Witness has testified here. The witness
is being called upon es an expert to
testify at 11 o'clock at night what he
•;oula have done in the darkness after he
goes cut sometime Later to examixie on the
scene ac to wha.t a viollce officer should
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or should not do, and I osrmlttcd him to
teotii'y Giid give his opinion over objection.
Counsel can cross-examine him as
to all the other posoibilitieo or probabili
ties font may have existed at the time,
•.;hcthcr the standard admittedly — was the
officer acting rcasona,biy under the
!hat I’m saying is —
do you recall my question?
A* Ask it a^ain, please.
Q- All t'iia.t I'm saying is that if the suspect
has begun to cli:.:b over the fence, and let's say he is iialfway
over the fence — that is, tha.t his mid section is doubled
over the fence end he is in the process of climbing over —
before the officer has even begun to step over the chicken
vrire fence, anu nev/ we’re tal.''.ing about probabilities, isn’t
it likely that by the time the oii'ica.' could step over that
chicken wire fence the suspect has already scaled the six
loot fence and ir fleeing through the brush in the adjacent
yard?
A. I can only assume that that is possible.
Q - Ail right, T'nen wh.at are the prospects oi appre
hending, that fleeing felon?
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I can only ancv:er as to what I would have done.
VJell, v.’hat are the prospects of apprehending that
fleeing felon at that particular point?
lav; says you should apprehend him.
Tho. law also sâ is you can use firearms to apprehend
him, tooj doesn't it?
That is correct.
£o you don't Icnow v.-hat the prospects —
(Interposing) I don't hnnw.
MR. KLEIII: All right. That
is all.
THE COURT; Any further questions?
Gentlemen, if it's going to be
any more extended back and forth now. I'm
sorry. I thought would complete this
witness. I have called these others in.
Do you have any further questions you want
to go into with this witness?
MR. BAILEY; Your Honor, I think
we have no lurtlier questions, I think his
testimony is quite clear,
THE COURT: All ri^ht. You may
steo dovjn.
Gentlemen, II you'll vacate the
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EXCERPT OF TESTIMONT
JOHN A. GOLSTTA.
having been duly sv;orn, was examined and testified as follows
DIRECT EX;i-IINATION
5Y MR. DAYS;
Would you state your full name for the record^
please?
A.
Q.
record?
A.
Q .
Cole tta.?
John A. Coletta.
And would you indicate your address for the
292 Barry Road, Mempliis.
Ca.n you indicate by i-:hom you're employed, Mr
A- Captain with the M<̂.iv.phis Police Department,
presently in charge of the training bureau.
Q* What is your exact job classification at this
point?
A. Commander of training bureau.
Within the rankings j.n the Memphis Police Department,
where does the rank of Commaruicr stand?
A- Commander is a titl- indicating responsibility. I
have the responsibility for the entire training bureau. It
encompasses three areas.
Q- VJell, but for example, in the structure of the
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aepartuient, I take it there is a Chief of Pm •onxei of Police, is there
not? • . . j
Yes.
And there is a D?rcctor of Public Safety?
No.
Is there any official or employee of the department
A.
Q-
A.
Q.
"Ith a higher title than Chief of Police?
A.
Q.
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No, not at present. There is hnf •-t-1IS, but It's not filled
And what title is tiiat?
I^ifsctor of Police
Director of Police-
Yes, sir.
Now, below the leve.L of Chiei' of •oniei of Police, what is
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Deputy Chief.
And belOM Deputy Chief is what rank?
Inspector.
, And below Inspector is what rank after that?
Captain.
Captain?
Rieht. but elther-o- contingent upon responsibility
job assignincnt rather than rank indicating it.
«• Now, What is your c:a:ct rank in the department?
A Capta'n Is rny rank.
0̂|| A.
nil Q.
12 II A.
13 11 Q,
15 A.
16 Q.
17 A.
181 Q.1 9 II A.
20 1 Q.
A.
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Q- And how does the ti.cle "Commander" come into play?
A* That v/as the title f'C the person that is in charge
and has the responsibility of the training bureau.
Well, does a Captain who is a Commander get paid
more than a. Captain who is nc’' a Commander?
A. Not a bit.
Is that a policy tliat pleases you?
A. Yes, it does.
In other words, yon don't mind the fact that
Captains who are Coimnanders get paid the same salary as
Captains vino are not Commanders?
I may mind a lot o;> things, but I can't do anything
about it.
How long have you been a member of the Memphis
Police Department?
A. 19 years.
Can you indicate scjne-thing about your educational
background before you joined the Police Department?
Prior to joining in 1957 ̂ I had a high school
diploma.
And have you had any education subsequent to your
joining the Police Department?
A- Yes, I received a Bachelor of Arts Degree from
Memphis State in PoJ.ice / d m i - i i s bration. I have also attended
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the Na.tional Academy which is a recognized police school con
ducted by the FBI.
Q- And how long was'that course of study conducted by
the FBI?
A. Three months.
Q- • And can you indicate what the substance of the
course of study was?
A. It was directed tov;nrds your individual respon
sibility. They have options which we can take for subject
matter such as the same as a university^ and I elected courses
in Management and Contemporary Problems of Administrators and
Trainers, Research.
Q. Prior to your becoming a Commander of the training
bureau, what responsibility did you have with the department?
A. I was in charge of i.lic firearms section of the
training bureau.
Q- Were you at the rank o f Captain at that point?
A. Yes, I v;as. Well, I was Lieutenant and Captain. I
was promoted that year.
Q- All right, perhaps we could get a sense of your
movement up through the ranks. Jn the Police Department. VJhen
you joined the department, do I recall correctly some I9 years
ago?
A. Ye s, s i r .
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Q.
A.
Q.
A.
Q.
You were at what rank?
Patrolman.
And how long did you remain at that rank?
Seven years.
Anu after that sevoi; year period, did you receive a
higher rank in the department?
^ promoted to Detective and then
subsequently to Lieutenant, e-.U I spent three years in the
Detective Bureau.
«• . And can you describe briefly the nature of your
responsibility within the burc;-?.u?
^ investigator in the pawn shop and junk
squad.
Q Could ^ou explain and repeat, and once you have
explained what that is all about, exactly the term you used,
what that responsibility was?
A- The responsibility war to investigate any complaints
regarding thefts and to check the various pawn shops and
scrap yards within the city to check for stolen merchandise,
and also to receive their daily pawn report that would indicate
what persons had oawned what nv ichandisc, and to check those
against the stolen lists, whatever.
Okay, could you repeat what detail It was that you
had responsibility for? Did you say —
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(Interposing) i was an investigator. I did not
have the responsibility for it.
But I thought you said something to the effect ofQ.
stop and jump or pawn shop, something along those lines?
A.
Q.
Pavm shop.
The pawn shop. -
MR. KLEIIl: I really hate to
interrupt. I don't see the relevancy
of this to the issu-: at hand. I'm
going to have to object to it.
MR. DAYS; Well, Mr. Klein, I
was just doing that tor purposes of my
own lecord. I simp.L,'' dian't hear what
he said.
THE COURT; All right, I think
he said pawn and junk shop.
THE WITNE-S: Detail, yes.
(By Mr. Days) Pawn and junk, all right. After
your three year stint in the Detective Bureau, did you assume
other responsibilities?
o-Ii'Or my three Vi.ars, I was transferred to the
firearms section of the trainin.g bureau and I was there until
approximately October of last year v>;hen I assumed full
responsibility ior the entire training bureau.
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Q- All rightj now, frora what year to what year were
you in charge of the firing range?
A- I v̂ as assigned there from I966 until 1975. I
assumed command of that sectJon approximately I970.
All right, between 1960 and 1970, what v;ere the
nature of your duties at the firing range?
A* Primarily administrative and instructive duties.
Could you be more specific, Mr. Coletta?
A- There is quite a number of items of inventory at
the range, weapons, tactical gear, et cetera, and it's our
responsibility to keep up V'/ith them, to issue them, to
instiuct in the use of those various items of equipment and
also, of course, the weapons themselves.
Now, during that process between or during that-
period, between I966 and 1970, were you charged with instruct
ing members of the Police Department in the use of firearms?
A- ■ Yes, I did sotne instructing also.
Q- . How was it that you oossessed qualifications to
instruct other members of the department in the use of fire
arms?
A* Well, I have initially taken it upon my own to
investigate the various avenues that are ooen to bettering
myself as far as .job opportunities v/ere concerned, and I
took it upon myselJ. to delve into the finer aspects of
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firearms instruction, and to also research the ramifications
surrounding firearms themsel-ves, which is a very, very vifide
field.
Q- All right, but durit̂ g the period 1966 to 1 9 7 0 , did
you receive any specialized course of instruction with respect
to the use of firearms either within the department or else
where?
A. Yes, within the department, certainly.
Q- And what was the nature of that type of training
that you received?
A- Of course, it was primarily a firearms instructor
course which was designed to equip a person teaching that
particular type of subject, to be able to teach it better.
Q- And who taught you?
A- The person who was in charge at that time.
Q- And who was that person?
A. Captain Earl Clark.
Q- Captain Clark?
A. Uh huh.
1970 you, I assume, took the responsibility over
from Mr. Clark?
A. Yes, sir.
Q* And between the period 1 9 7 0 and 1 9 7 5 while y o u were
in charge o f the range, did vou receive a n y specialized
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1 instruction with respect to i'ne use of firearms or the
instruction in the use of firearms?
A. Yes, I did.
Q- Can you indicate the nature of that instruction?
A- I attended the National Police Firearms Instructors'
School which is held annually at Camp Perry, Ohio, and I also
attended the Firearms Instructors' School conducted at the
State Training Academy at Donolson, Tennessee.
Q- And how long a course of study was that?
A. One week each, I believe. In addition, of course,
I have attended many seminars and workshops and things of
this nature that are also relented.
During the period v/hon you were in charge of the
firing range, 1970 to 19 7 5 ̂ wiio was your direct superior, in
the department?
A- The Commander of the training bureau who was —
well, I would have to think because it's been quite a number
of them.
Q- V/ell, it's not necessary if you don't remember the
name to recall the specific individual, but you reported to
the commanding officer of the training bureau?
A. Commander of the ti-:.ining bureau, yes.
Q* And to whom did the Commander of the training bureau
report, if you .'mow?
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Deputy Chief of Administrative Services,
right. Now, at the time that you were in charge
of the firing range, were you given instructions by the
Commander in charge of the trr.ining bureau with respect to
what type of instruction you should provide to the members of
the department?
certainly we woiald have meetings concerning
it, but really the Commander of the training bureau didn't
knov; as much about it as I did, because I had made it a point
to learn that particular topic.
Well, wha.t was the nature of the mandate, if you
will, that you received from your superior with respect to
how you went about conducting iirearms training for officers
of the department?
objective was to qualify people in the use of
the revolver and the shotgun. That was our primary objective.
In the course of that instruction the question might arise
upon when it 'would be tactical3.,y feasible to use a firearm,
when it would be, according to department policy and according
to law, justified to use firearms, but this was to reinforce
the legal suojecos which were to.ught in the academic section
of the Academy itself.
Q- You just usrd the torm "Academy” and we were talking,
if I recall correctly, about the firing range. Are they, in
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1 fact, the same entity —
2 A. (Interposing) They are the same bureau. They are
. 3 separate sections.
•j 4 Q. All right, but before we get to that, I want to ask
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1 7. department, that you were essentiaJ.ly delegated by your
8 superiors the responsibility for determining what would be
i 9 the appropriate type of firearms training for members of the
i 10 Memphis Police Department?
1} n A. Yes, more or less.
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14 dictated not only by what has been or by precedent, but also
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16 what may be. A lot of policies changed and a lot of proce
17 dures were changed because of changing times and changing
18 orders which would be issued from time to time, and because
19 of the legal ramifications that also v/ere changing pretty
20 rapidly through this period of time.
i 21 Q. Mr. Coletta, is it fair to say that on a day-to-day
22 basis you had decision making authority with respect to
23 training at the firing range?
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Q- be{iinnina to feel that "more or less" is just
a habit that you have in responding to questions or did̂ ysu
mean something —
A. (Interposing) I'm not absolute —
Q* (Interposing) I son.
A- (Continuing) — if that is what you mean.
Q* I see. Now, I would like to turn to the whole
question of the training academy as distinguished from the
firing range. Could you make clear for the record hov; those
two entities differed, if, in fact, they did differ?
A- Yes, sir. The training academy is charged with
tne classroom responsibility. The firing range is charged
with the practical responsibility of teaching firearms
instruction. The Academy does not teach firearms. The range
section teaches the firearms.
Q- All right. In your capacity as head of the firing
range, what responsibilities did you have with respect to the
Police Academj'- in which I assume recruits to the Police
Department receive training?
A. To the recruits?
Q. Yes.
A- Well, naturally I woi.\ld v/ork in liason, in close
liason v;ith the Academy to be .aware of what they were teach
ing, but my direct responoii'.Lllty was to the Commander of the
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training bureau who' had the overall — who was charged with
the overall operation. It was his responsibility to
coordinate.
Q* Okay, was the Comma.nder of the training bureau in
charge not only of the firin;; range but of the Academy
itself?
A. Yes, sir.
Q* And v;as there a person below the Commander of the
training bureau at your level who v;as, in fact, the direct
supervisor of the Academy?
A. Yes, sir, there war..
Q* And was that person at the level of Captain?
A. It's fluctuated. At one time,, yes.
Q* Well, did you have any line authority to speak of
in terms of what types of training would be included at the
Academy for police recruits?
A- Well, I would imagine line authority -- if you
would explain —
Q- (Interposing) All :dght, by line authority I mean
that you would have the power to say to the person in charge
of the Academy, you must incln.ie the follo'wing procedures
within the training program for this group of recruits.
A. No, .sir.
Q- Would you have thv,i'. authority?
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A.
Q.
A.
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No, sir.
Did you have —
(Interposing) I would recommend. I wouldn't tell.-
Were you generally successful in getting your
recommendations approved?
A- Fairly successful, I would say.
Do you recall any major respects in which your
recommendations were not entertained and acted upon favorably
by your superior?
A* Well, not offhand, really. I can remember incidents
where maybe the change was no I', implemented within a specific
time span that I thought maybr. it should have been.
Did you participate in an Academy training program
for recruits in 1972?
A- Yes, I'm sure I did.
And do you have any recollection of whether you also
were involved in a training program for recruits in 1973?
A. Yes, sir.
And what was the nature of your responsibility in
1972 and ' (3 with respect to tlic training program for the
Academy?
A- My primary responsibility?
Q* Yes. sir.
A" VJas to teach peopl ■ bo fire revolvers and shobgunr..
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Q* Could you in generalized fashion describe the
structure of the course of training that you would provide
with respect to the use of 'firearms? What were the blocks of
instruction that you provided?
A. V/ell, of course j we would try to provide a program
based upon chronological order in the learning process^ start
at the base and work up. Inilially^ we would orientate the
people to just exactly what tliey would be subjected to. We
would teach them the safety a.spects surrounding the use;,
surrounding the handling^ surrounding the care and cleaning
of firearms. Vie would instruct in the nature of the firearm
itself, the names of the various parts, the technical
aspects of it. Vie would use t-raining aids to illustrate
these various points and atteiapted to geo the student to be
able to, once he walked on the line, to be safe and to be
able to at least understand the basic rudiments.
Q. Now, was the content of this training program a
reflection, to the best of your understanding, of the
departmental policy with respect to what officers should Icnow
about the use of firearms and what types of firearms they
should be famil:iar with in terms of their police work?
A. Yes, sir, but not in its entirety because when you
talk about officers knowing t'\i2ir firearms and how to use
them, you're also speaking ,'.bout legal aspects v/hich is
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taught in the Academy section by a lav/yer.
Q* V/hat do you know aboi.it the so-called 3.egal aspects
of the training as that area might relate to the use of
firearms?
A- ’’.'/ell, of coursej as it's written now^ Tennessee
State Law is the governing factor. Now^ that is law.
Q’ All right, but what I'm asking you is were you a
participant at any point in w!'nt you characterize as legal
discussions or legal instruction with respect to the use of
firearms?
A. Yes.
Q.- Can you describe the nature of your participation
in that process?
A. During the course cf marksmanship questions would
arise, when to shoot, when not to shoot, should you do this,
should you do that, and certai.nly w'e vjould attempt to answer
questions that we were knowledgeable about, regarding those,
whether it be departmental policy, -whether it be State Lav;,
and v;e would attempt to couns--:;!. and guide the student into
a realm whereby he v/ouldn’t take the v;rong impression from
there.
Also, v;e would talk about the moral, aspects of
firearms use, the right and t’ne wrong of it.
Q- Was there anything in the department manuals or
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regulations that addressed ii-self to the moral aspects of the
use of lethal force?
A- I don' t think so .
Wellj how did this moral instruction come about in
tei'ms of the use of firearms'.'
Generally in a questj.on and answer period a dis
cussion would follow.
Q. During the period, M r . Coletta, between I970 and
19 75, did you have any involrmcnt in questions relating to the
type of weapon or type of ammunition that the department
should issue to its line officers?
A.
Q.
A.
Yes, sir.
ivnd can you describ' the nature of your involvment?
Well, I had initially been involved in it maybe as
a matter of curiosity or maybe because I thought it was my
responsibility to make certain that I was aware of what the
teciinical aspects of ammunition and weapons are and what would
be best suited for a police officer.
In addition, the Tactics and Evaluation Board had
requested a study when the Union raised the issue that they
wanted to use a larger hand gun, and this particular Board
requested a study that we loolc at what we were using and make
a recommendat.'’.cn as to what f'-nu'ticular type of ammunition that
we would recommend, 'whicb d:H.
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Q- Nowj v;hat v;as the name of that Board that yoa just
referred to?
A* I just — I don't recall its name^ Textics and
Evaluation^ or something of that nature.
And was that Board comprised of persons within the
Police Department?
A. Yes.
Q- Can you identify b'/ rank^ if you will, who was
involved in that particular Board? Was the Chief of Police
involved?
A* The Chairman, I thi.nlc, was Chief Inspector Jack
Holt.
Q- Well, let me pi;t it this way, did that Board
reflect a policy making entity within the Police Department?
A- They do not have the power to set policy, I don't
think. I think what they did was make their recommendations
to the then Director.
Q* ̂ All right. And did you, in fact, conduct any
investigations into the use o'' various ammunition and v;eaponry
at the request of the Board tlio.t you mentioned?
A.
Q-
A.
Q.
Yes, we did.
And when was this done?
I don't reca3.1 exactly, somev.'here around 1973, '74.
V/as it prior to Cccober of 1973?
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A- I Jon' t recall.
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indicate what weaponry the Police Department
was using prior to that request that you conduct a study?
A- Tne same that we are using now. The medium Ten
Smith V/esson 3-1- heavy barrel revolver.
And what type of ammunition were you using prior to
the conducting of this study? ^
A- We bought — the period of time from I970 until
nowj we had used hollow point eramunition of various makes
due to the City's purchasing policy until we definitely
established one round. And it's just like choosing an
automobile. They make all brands.
HK. DAYS: Your Honor, this
really concludes my introduction.
THE COURT: Let's resume at
9 : 15 in the morning.
(V/hereupon. Court v;as adjourned
at 4:55 o'clock p.ni.. until 9:15, August 3,
19 7 6.)
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21
MORNING SESSION ---- ^----------
■AUGUST 3. 1976
THE COURT: Are v/e ready to proceed,
gentlemen, with the testimony of Captain
Coletta?
MR. DAYS: Your Honor, we were
trying to determine whether another one
of our witnesses was present. We thought
we might take him before continuing with
Captain Coletta, but he's not present.
THE COURT: All right. You may
proceed.
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1 A. COLETTA,
resumed the stand and testified further as follows:
DIRECT EXAMINATION
BY MR. DAYS:_______
Captain Coletta, directing your attention
to the training program and the Academy in the use
firearms. First, I would like to ask you what
the applicable standards are in the state of
Tennessee, in the City of Memphis under department
regulations with respect to the use of firearms,
if you know?
A. Yes, sir. The city requires, the police
department requires --
Q- (Interrupting) Could you start, if I
may Interrupt, could you start with the state
standards first, if you would.
A. • ‘- I don't know if there are any state
standards for recruits per se. However, at a
recent meeting it was determined that every officer
shall qualify under his fire department program at
least annually.
Q- Perhaps you misunderstood my question.
Let me restate it more carefully in hopes that you
will understand.
Is there not a state statute that controls
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the circumstances undj^ which police officers may
use lethal force?
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Q.
A.
Yes, there i s .
Are you familiar with that standard?
Yes, sir.
Q. Would you state your familiarity with that?
A. I believe it- is section ^0-808, I ’m not
certain of that, but it authorizes a law enforcement
Officer to use deadly force after all other means,
reasonable means, have been exhausted in the
apprehension of a felon.
Q. Now, there are also departmental regulations
with respect to the resort of lethal force by police
officers?
A.
Q.
Yes, sir, there are.
V/hat is the nature of that regulation?
A. It is more restrictive than state law.
Again following the guidelines of the state law,
after exhausting all means of apprehension, and it
eliminates some felonies, such as embezzlement, et
cetera, primarily the felonies in which deadly force
are authorized or crimes against persons, murdering,
burglaries.
Q. Now, as a person Involved in training
programs for recruits-, did you have occasion to go
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over with recruits the requirements of the laws and
the regulations that you just described?
A- I did discuss them from time to time, but
that primarily was given to them during their legal
phase of instructions, probably by a guest Instructor,
and I imagine it was our legal advisor at that time.
And would you be present at those lectures
by the legal advisor?
No, sir, I would not.
Q . rrHave you ever had any hand in preparing
a fire arms manual for the Memphis Police Department?
A- Yes, I have.
Can you indicate the nature of your
participation in such an effort?
A* On many occasions we were asked what do we
teach, and in an effort to clarify this and provide
guidelines, or as to what we taught, we prepared the,
prepared the manual that encompassed at that time
all of the subject matter that we did teach.
And when you refer to "at that time" can
ynu Indicate what time you are referring to?
Yes, sir, when the manual was instituted
I believe around 1972 .:''
Oo the manual would reflect what was being
taught to recruits as of 1 9 7 2 , is that right, at the
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Academy? *
A. Actually it would reflect what had been
taught before also, to a certain extent.
Q* Do you have a-copy of that manual with
you?
A . No, sir, I don't .
Q* Mr. Coletta, let me show you this document
and ask you whether this is the manual to which you
were just referring?
A. Yes, sir, this appears to be it.
Q. And is this the manual that you were
responsible for preparing?
A . Yes, sir.
• Now, I ask you whether you recall any
suggestion in this manual of the legal requirements
Controlling tho use by Memphis Police officers of
lethal force?
A. Policies and procedures were Instituted
and placed in the front portion of the manual.
I don't recall at this time just exactly what
policies are there.
Q* Let me direct your attention to page 3̂1
of this document, chapter 5 , and ask you whether
that refreshes your recollection as to whether or
not there was Included in the manual any discussion
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1 , tof the legal standard controlling the use of lethal
force by police officers?
Yes, during discussion of liabilities
and tact on the applicable use of weapons, which
is the chapter, we did discuss legal ramifications
surrounding the use of firearms.
When you say "we", does that indicate that
you personally engaged in such discussion with
recruits?
̂ could have been any one on a range
staff. I don't recall who gave the lecture.
Q- Did you, on occasion, give a lecture with
respect to this particular subject matter?
A- Yes, I did.
*3- Can you Indicate the nature of the
lecture that, .you gave on this particular question of
the use of lethal force by police officers?
Well, of course, we wouldattempt to
provide the officers with guidelines as far as what
he could and could not do. We would cite cases
which have occurred elsewhere showing and
demonstrating to them what these court cases said,
what the action of the officer was and what the
result was. We would speak of ethical reaction
from the community.
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Q. What do yo\,̂ 'mean by "ethical reaction from
the community"?
A. What the community thought that the ethics
of the police department should be in the use of
deadly force and how, if we succeed, what their
expectations were. We felt that there would be more
restrictive laws and that particular time it was
discussed at length I think on a number of occasions
concerning these various things. We would also
speak of the moral dilemma that the officers will
be confronted with.
Q. • What do you mean "moral dilemma"?
A. What that persons, that officer could live
with his actions. If he v;as wrong we have had
occasion to see where officers have been subjected
to psychiatric examination. If he was wrong we felt
>.that it would-work on him, perhaps not nov;, but per
haps later on In his life and we emphasized the
point that the officers must be right, that he must
follow the law and that he must be able to justify
his action.
Q. And by "justify" what exactly do you mean?
A. Justify it In every way.
Q. I ’m asking for a specific, since you are
engaged in instructing recruits?
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s a j / l s f i e d u n d e r t h e P o l i c e D epa r tm en t
p o l i c y . He must be a b l e to j u s t i f y I t u n d e r t h e
s t a t e l a w , he must be a b l e t o J u s t i f y i t i n h i s own
mind so he can l i v e w i t h i t .
Now, t h e c o u r s e o f academy I n s t r u c t i o n i n
t h e use o f f i r e a r m s b e tw e e n , l e t ' s s a y , t h e y e a r s
1 9 7 2 and 1973 up t o t h e end o f 1973, d i d you
emp loy any f i l m s , t h a t i s m o v ie s , t o a i d i n t h e
i n s t r u c t i o n o f r e c r u i t s i n t h e a i d o f l e t h a l f o r c e ?
Y e s , we em ployed one t o h e l p and t r y to
d e v e l o p t h e o f f i c e r s i n t h e judgm en t o f h i s p r o c e s s .
28.
Q.
A.
Q.
c o u r t ?
A . .
Q-
A.
Q.
What film was that?
"Shoot, Don't Shoot".
Were you requested to bring that film to
Yes , sir.
Do you have that film?
Yes, sIr. ‘
Are you in a position to project that film
for trie benefit of the court?
A* Yes, sir, it would require a few minutes
to set the projector and film up.
MR. DAY'S; Could we have a brief
recess for the purpose of setting up this
film?
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THE C(f^RT: Yes, sir, but I would
hope that we can go ahead and conclude
the examination of this witness, unless
you have some examination in respect to
the film, and then if possible conclude
the cross examination, unless cross
examination relates to the film, and
then go ahead and get to the film rather
than Interrupt at this point.
MR. DAYS: Yes, Your Honor, I really
do have questions that are directed toward
the content of the film.
THE COURT: All right, sir. I'm
sorry that the film equipment and so
forth was not set up. If you will
advise us when you are ready. We will
take a recess.
(Recess.)
(By Mr. Days) Captain Coletta, you were
asked to screen the film "Shoot or Don't Shoot"
Is that film ready?
A . Yes, sir.
Q* Would you start running it, please?
(Thereupon, the film began at
9 ̂5 a.m. and concluded at 1 0 :0 8.)
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MR. DAJ(6 : Your Honor, I would like
to have that film marked and moved
Into evidence If counsel has no
objection.
MR. KLEIN: No, Your Honor, I have
no objection.
THE COURT: All right, sir. Let
It be marked with the ultimate right
either to make a copy or to return
after It has fulfilled whatever use the
record would specify.
THE CLERK: The next number Is
16.
(Whereupon, the said film was
accordingly marked Trial Exhibit l6 and
received In evidence.)
THE COURT: All right, sir.
Q* (By Mr. Days) Now, Mr. Coletta, In the
film "Shoot, Don't Shoot", there Is a discussion.
Is there not, of three criteria that an officer
should look to In determining when to fire a weapon
at another person. Is that correct?
A . Correct.
Q. Identifying whether a person who Is armed
has the ability to injure the officer, whether there
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an opportunity toAnJurs the officer, whetherin
fact the officer is in jeopardy, whether there is
a chance, the ability and opportunity will be
realized in some fashion, is that correct?
A. That's correct.
Is it fair to say that this film is
directed toward the queation of when police
o^^lcers should shoot to protect themselves?
A- Yes, sir, as well as other times.
Is there a discussion in the film of
whole question to shoot fleeing felons, is
there not?
A. Yes, sir, there is.
And the film.says generally that the
police officers have the right to use lethal force
^o apprehend fleeing felons?
A . Yes .
Is it not true in the case that in the
film that all of the fleeing felons were armed, the
man running through the field, the gun in the hand,
the fireman, the right to shoot a fleeing felon,
there is a situation where the man Jumped out of the
automobile and ran toward the corner and pulled his
gun, that is the fleeing felon situation, and then
there is a man with the satchel in the open field and
31.
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32.
he had a, I don't what the weapon was, but he
had a gun in his.possession, isn't that correct?
A. Yes, sir, and there were several more
scenes where the man that preceded the man coming
out behind a row of buildings, he was not armed,
and the last scene, I believe those two were not
armed either. Yes, for the most part they were
armed.
• Does it specifically say under those
circumstances that .î .̂ was clear that a felony had
been committed?
Yes, in some of the cases I think it was
self explanatory.
Q. I'm trying to get your understanding of
what the film was communicating to you and bn the
recruits that saw this film. In the situation where
the two men were coming out of the building there
was no indication tha.t the unarmed man running out
of the building was a fleeing felon, was there, and
the last scene with the ofricers holding his
badge out, there was no indication that those men
running away had committed a felony?
A. No. ,
Q. They also said if there is a slightest
doubt the officer should not shoot?
331
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A. Yes . ^
Q. You should be absolutely sure there is
a felony committed before a firearm Is used?
A . Yes .
Q. Now, do you have any doubt that this film
was shown to recruits during 1972 and 1973 at the
academy?
A. I don't know exactly when. I don't believe
that there is any question about when it was shown.
Q. Now, did you show any films that related
to the use of lethal force to apprehend fleeing
felons that were unarmed?
A. I don't know of any in existence.
Q. So your answer is that you did not show
such a film?
A. No. .
Q* Did you engage in any discussions with the
recruits about the use of firearms to apprehend flee
ing felons that were unarmed?
A . ' I sure did.
Did you indicate generally the nature of
discussions that you had with the recruits, what
types of standards did you indicate to them that
they should follow in shooting unarmed felons?
A. Of course, the first thing I would do is to
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1 find out what they kjĵ w about it because they had
understanding when they came to the firearms portion
of it, their training, they had understanding, their
legal training. I would find out Just exactly what
knowledge they have, and I would try to clarify
points of doubt that they may bring up.
Q. In other words, they would have gone through
the discussion of what state law required and what
the department of regulations required?
^ • Yes, sir.
Q* All right. Now, am I correct in thinking
that under state law and the police department
regulations there is a requirement that officers
exhaust all alternative non-lethal means in —
A. Yes, sir, exhaust all means that are present
there that you can exhaust.
Q. All right. Now, did you show any films
to recruits about what non-lethal alternatives
might be available to them in a situation where a
person was fleeing fro
that was unarmed?
A. Yes, sir, we
Q. Did you show
A. No films.
Q. But you say
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3 5 .! Iyou give a general lr;ij|icat ion of the nature of your
discussion?
A. Yes, sir, that if you don't catch him
immediately, more than'likely he will escape and
then the alternative is to put out radio calls, what'
ever, and attempt to apprehend him that way.
Q. Well, are you saying that if a fleeing
felon escapes, then the police officers should
contact other policemen and try to apprehend the
fleeing felon by getting reinforcements, is that
right?
A . Certainly.
Q. But did you discuss what constitutes
reasonable alternatives, non-lethal alternatives?
A. Yes, sir. There really are none
generally if you don't catch them and then
generally that is the-point that I'm trying to
make, that they will have a very difficult time in
catching them. Most of the fleeing felons are
driven by some motivation, I don't know exactly
what, that really drives them to perhaps run
faster or perhaps do things that they normally
couldn't do.
Q. Well, are you saying that, in fact, in
most situations there are no reasonable non-lethal
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I .alternatives that a jj^lice officer can rely upon
when a person, who is unarmed, is fleeing from a
felony?
A. No, sir, you -asked me what my discussion
was .
Q. I'm trying to find out what your particular
position is with respect to the existence of
reasonable alternatives to the use of fleeing force,
if there are reasonable alternatives, and, if so,
what they are and to what extent are these alterna
tives communicated to. recruits? Start with the first
one. ,7.
A. The first one is to run and catch him.
Q. First, wait a minute, do you think they
are reasonable alternatives?
A. No, sir, I don't think running and
catching him is reasonable alternative.
Q. Why not?
A. Because I don't think in the majority of
^he cases it can be reasonably done.
Q. Are there any alternatives to running?
A. When someone runs from you, the only
alternative you may have would be on the front end
possibly, if manpower is available, employ a
different set of tactics.
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1 *3* All right .ĵ So you think that running
probably is not.a very effective alternative.
You have suggested that maybe heading this
person off might be an- alternative?
A. Certainly you may do so.
educate your recruits that running
after a fleeing felon that was unarmed was probably
an unreasonable alternative to the use of lethal
force?
1 don't think I projected it as an
unreasonable alternative.
• Did you tell the recruits they had to
exhaust all reasonable alternatives before they
use their weapons?
A . Ye^ sir, absolutely, and they were also
during their law session instructions.
Did you discuss with them techniques that
would employ alternates to the use of lethal force?
A - Yes,sir.
*3* . And what were the nature of those police
techniques ?
Well, of course, as all contingents of
catching or being within the same area as the
suspect --
Q . All right.
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A. Once you haĵ e decided what your course of
action would be, and once you have deployed yourself
accordingly, for example, your partner to the front
of the office and you to the rear of the, office or
whatever the situation, utilizing the covered hand,
once you met armed resistance, once you have adopted
a particular course of action, then you must carry
It through until some act changes that course of
action. Now, you can give a thousand Instances, and
̂ venture to say that those thousand Instances woulfln'
occur the way In which you say In the next three
years.
Q. That Is true of this film?
A. Absolutely.
Q. That film can’t show all the situations
that a policeman encounters?
A. Certainly not. Certainly It would
provide guidelines of some of the reasonable
alternatives that you are talking about.
Q. All right. So I'm asking you what efforts
that you made to establish guidelines for the use
of lethal force when people were fleeing from the
commission of felonies and were unarmed, what are
the standards?
A. That Is wĥ t̂ T say. One alternate Is
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i irunning, another altejjnate is heading them off,
another alternate is shouting at them to stop.
39 .
Q.'. Youare telling —
MR. KLEI-N: Your Honor, I don't
think he's letting the witness finish,
and number two, I think he's cross
examining his ov/n witness. I object
to that because he's using legal
questions.
MR. DAYS: I would like to
clarify that for opposing counsel and
the court. Captain Coletta is called
as a hostile witness and/or adverse
witness under Rule 6ll of the Federal
Rules of Evidence and under that
r.ule I am permitted, as I read the
rule, to examine as though it were
cross examination. I think it is
fair to say that Mr. Coletta is a
witness identified with an adverse
party in the sense that he is employed
by one of the defendants in this
case.
THE COURT: Well, I will
overrule the objection to the use of
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leading question in treating the
witness as representing the adverse
party in the.proceeding. I will
ask that if the witness feels he has
not oeen able to complete a response
that he advise us so that his response
will be completed before the next
question.
Q- (By Mr. Days) Let me apologize to the
witness and to the court if I have been unduly
Interruptlve in terms of your responding to my
^^®stlons. I certainly want you to answer as fully
as you feel is necessary.
I was asking you at an earlier stage how
you went about communicating to recruits what the
guidelines should be in terms of the use of lethal
force in apprehending felons who are unarmed?
A. The way I construe that, Mr. Days, and I
can respond this way, the lecture method, talking,
the discussion method, that I presume is v/hat you
are asking. I really don’t understand.
Q* All right. Let me try again. You are in
police academy and you have a group of recruits
before you. And let’s assume that the question is
the use of lethal force to apprehend fleeing felons.
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1 t tIn that context did u have, as a part of your
presentation, a discussion of techniques for
apprehending unarmed fleeing felons?
Per se, yes, generally. But specifically
I did not delve into peculiarities because this is
a legal subject and should have been handled in
depth by the legal instructor who provided them
that instruction at the academy.
Q- Let's presume that the legal Instructor
says that Tennessee state law says, gentlemen,
recruits and gentlemen, women I guess are recruits
at this point, you may use lethal force to apprehend
fleeing felons, but before doing that you must exhaust
all reasonable legal alternatives. All right. And
the legal advisor also tells the recruits that under
the Memphis Police Department regulations, state
law, is restricted to' a certain extent and that fewer
felonies are regarded'as justifying the use of lethal
force by officers, but that under both state law and
under police department regulations there is this
requirement of exhausting of non-lethal alternatives.
All right. That is the predicate.
A. O.K.
Q- Then you have the police recruits before
you and the question arises of you on behalf of one
OMf) 441
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1 of the recruits. Captain Coletta, we know what the
legal advisor told us about reasonable non-lethal
alternatives. What are they, what do we do in terms
of police in regard to-tactics to carry out that
requirement of exhausting non-lethal alternates.
That is not a legal question?
A . No .
Q. That is a tactical question?
A . Yes.
Q. How do you go about communicating an
answer to that particular question?
A. Well, Mr. Days, the first thing I said
before, to approach the scene properly, to plan to
develop their course of action prior to arriving on
the scene, to devise, if it is a two man car, who
will go where so that one will be aware of the other,
where he will be, what his actions may be; and once
they have decided upon their plan of action to
approach the particular location contingent upon
where it is located, what its physical structure
and lighting is, whether it is daytime, nighttime,
or whatever, and in approaching to be aware of
anything because nothing is routine. Anything could
happen, to approach it with caution, particularly
a felony type call and then once they are on the
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scene to apprehend, first try to cover the exits, but
if, for example, someone should escape, to do their
utmost to apprehend or capture without using
deadly force, to run after him, possibly that they
can’t catch him, to shout at him, to halt, if possible
to shout at his partner to head him off, as you
suggested, to utilize any means at their disposal
^t that particular time to apprehend that subject.
If they are close enough, certainly they could
resort to the use of a night stick possibly, but I
don’t know, but in some cases that non-lethal --
Q- Mr. Coletta, in the police manual that we
discussed earlier, is there not a section that relates
to procedures, police officers should use in certain
situations vith respect to the use of lethal force?
A.
Q.
There is a section on tactics in there.
All right, could you find that section in
there?
A.
Q.
Page ^1, specific tactics.*
Would it refresh your recollection if I
directed your attention to page 39. Isn’t that
also .a. place where tactics are discussed?
^• Yes, it is.
3o there is a discussion earlier than
Page ^1 with respect totactlcs?
/ 3 3;̂ - 433
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kii
S i r , t h e r e i s .
i n v o l v e d n^o
th e manua l on t a c t i c s ? P ^ '- ln s th e s e c t i o n o f
, I was.
And how many pages i n
d e v o te d t o th-f ̂ manua l a r e
̂ s q u e s t i o n o f t a c t i c s ?
i ’ ni n o t c e r t a i n .
c o u l d you l o o k and try t o r e f
recollection? I’efresh your
' '*11 . o n .p a g e 38 i t d i s c u s s e s I t h t
h e a l s t h e n a l . ‘’ “ t 1 *
a l s o on. page t o w i t h b u l l e t e f c e t ,
and p o t e n t i a l o f p r o j e c t l l - a o t l v e n e s s
' - ' j e c t i l e s on th o k .
= P - t f i o t a c t i c s p i o k e o up
I h e i i e , , , _ ®° ‘ '’ '■ “ “ S'' P^se t 6 ,
l a t h e r e a d i s c u s s i o n o f t a c t i c
^ ^ -a rm s f rom page 38 to what ̂ , wnat, page Z}6?
a l f , t h e r e I s n o t . T h e re I s d i
t a c t i c s w i t h use o f f i i a o u s s l o n
I t goes I n t P''®"6<->es i n t o c o v e r it- ^
I t d o e s n ' t » n ^
“ I P h f i r e a r m s . i t d e a l " “ ^th t a c t i c s
o f f i o e r . ® p o l i c e
Q • n IT
■ '̂’ P P a - t a a d i s c u s s i o n o f t a c t l
page 38 to page what?.: ”
A. ^
' ' d i s c u s s i o n i n t h a t s e c t i o n
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tactics?
A.
Q.
U6.
What techniques police officers should
use in apprehending fleeing felons that are unarmed?
A. I don’t recall, I would have to look. I ’m
sure --
‘ Well, would you look now and try to
refresh your recollection?
A. Under the specific section of tactics,
it has it here that the tactics that a person can
commit, it doesn’t make any specific distinction
over unarmed or armed, but it can be employed in
either way.
Q. Does it say anything about non-lethal
alternative tactics for apprehending'fleeing felons?
A. Not per se, no, sir.
Q. Does it say other than per se in that?
A. It says the unknown, the unexpected in
dealing with situations where police do not have
positive information or initiated from minor actions,
minor infractions, disorderly conduct, family
disputes —
Q . That is talking about non --
A. It is talking about tactics, that is what
this section covers, tactics.
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Q. Is there ahiy specific mention to the best
of your knowledge in that manual of what non—lethal
alternate should be employed by an officer before
resorting to lethal force?
A. No, sir, per se, no, sir.
Q. Well, you have used the term per se, several
times.
A.
use it.
That means explicitly in the way that I
Q. All right. What role does a police
officer’s discretion play based upon your experience
in the Memphis Police Department and your role of
a teacher of recruits with respect to the use of lethc,
force; what role does discretion play in the
decision of an officer to use lethal force to
apprehend a fleeing felon who is unarmed?
A. I would say it plays a major part.
Q. And why would you say that?
A. Judgment, discretion, term it what you
m a y , * it is a very difficult subject to teach, and
I ’m not certain that you can even teach it. I ’m
not certain that you, at all thatyou can teach a
man Judgment. It evolves from maturity, from
experience, from a number of factors over which you
may have no control.
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Q. Isn’t the extent to which judgment is
exercised is dependent upon what standards a person
^s provided?
A. Certainly that, is part of the experience.
Q- Well, let's assume that we have an officer
who does not have a great deal of experience as a
policeman, that is, does not have many years of
service. L e t ’s say we take a person who is several
months out of the academy, several months on the force,
to what extent is the judgment of that officer in
terms of the use of lethal force against unarmed
•"-’-eelng felons circumscribed by some type of standards,
certainly circumscribed hy standards and circumscribed
by state law?
A. In 1973, i f my memory s e r v e s me r i g h t , we
had no p o l i c y r e g a r d i n g t h e p o l i c y o f d e a d l y f o r c e .
We were strictly governed by state law. I believe
deadly force policy was instituted in February of
197̂ 1 .
Let me direct your attention to a document
and ask you whether you can identify it?
MR. KLEIN: May I Inquire what
that is,.?
MR. DAYS: I'm sorry, let me show
it to counsel before you look at it.
2 in 44
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*3* (By Mr. Days) Can you Identify that'X u
document, Mr. • Coletta?I v' • ’ - • •■ II L;
■A ■
4 8 .
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. s 1. ’ I
, Yes, ;i had.my attention diverted tô flre-'.v̂ ^̂ ^
arms review board, I*m sorry, I guess that' is where. o ̂ C.
I was thinking February of ’74.
■Q. ,. ' Based on yo.ur observing this . documentdo “'■■rI
■ \ »* ̂ i C i ”* ■' ' • ' ' V ’ I- •• ' I . -• . ' ' ” V*-», V V■'''̂v •-‘-iv l'.s
you have any_ reason''t_9 change the testlmony' that ^
■ ■ I "you just gave? • ,
A- No, sir, not one lota. Not one lota.
.And your testimony is that ,there were no
departmental regulations with respect to the, use of
lethal force?
■j Li.
No, I thought I clarified that I had
• - li i..
in mind the establishment of the firearm review ■’
board, I believe, and I believe I said, if .my memory, j v
serves, me correctly,'"! will apologize "no^S thlslls^'^'H^
dated 1 9 7 2 , which concerns the use ofwrong, it is
firearms.
Q* . And is it a policy that also articulates
. the ̂ fact that there has to be an exhaustion' o f ‘ ' *'■ : pa r'■ -v,;.■ » ' * ‘ '\i
non-lethal alternatives before using lethal' force? • " '
' Yoil'are V engaged, or- you were engaged,-;'’*)
were you not, Mr. Coletta, as head of the firing
■ .range in teaching recruits how to use firearms?
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A.
Q.
Yes, sir. J
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> 119.
And did that training involve teaching them
.- how to shoot at .human-;beings? -• ■'■ -'.w- ̂ . ' -•!■' ■ ' ■ ■■ ■
vi\ ■ ■■■■ Primarily our. obj active ...is{. to shoot :- : . -- ■ • - •■ ■■ ■;• ' ...
accurately regardlessrof what the target, and not
primarily teaching them departmental policy or the
.r;, legal aspects s.urroundlng it . ; Our_ primary- obj active '•
was" teaching marksmanship.
*3. In terms of.• teaching marksmanship, did you
use targets? ' ■ ^
■ A., :̂ . Yes , .̂we -dld^;//''
And did any,i.of. those targets. that' you ” i;Q.
used have conformities that were parallel to the
conformities of the human body? ' :
.,A. •. ■■ ; Many of ;them-do. . -y.
Q. And in termsivof the -uge- of 'that'.' target
what :.were you' 'trying'to teach the recruits t o do ' in "'?-'■■■’• ■/■ - ■ V:. . ‘' t'
, ; terms of shooting that%-target'that represented a • V. «
human figure? .
•• A.
Q.
A.
Q-
:A".’
Q.
To hit i t . ■ t; y . ' - ■ ^
To hit any -particular part of the target?
'f'r.'- ■ • .j' .
Yes ,. sir, certain mass.
Certain-center.mass? ’ ' -n4- ^
V-. - V y I ̂ •. ■ r *',5 . ••.•••». -r:. . ,
Yes',? sir:i
If one were considering a human body as
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opposed to the target^ where would the center mass of
the body be?
Somewhere around the sternum, I'm sure.
Q- I'm not a doctor, and if you could use a
more simple vernacular,of the body.
This area between the chest and the
stomach.
Q.
A.
Q.
A.
Q.
A.
Between the chest and the stomach?
Yes, sir.
And can you indicate why your goal was
^struct recruits to shoot that particular portion
of the target?
Yes, sir.
Would you,please?
Because of the fact of the mastery of a
hand gun is the most difficult to teach and to grasp.
Proficiency with a hand gun is far' more difficult
than obtaining proficiency with a shotgun or a rifle,
and it is due to the physiological characteristics
of the person who must support the gun, and any human
being having to support the weapon at arm’s length
is more unsteady than one supported by the shoulder
and by the hand, so handguns are the most difficult
to master. In attempting to master them, most common
errors that are committed with the handgun are either
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1 shooting high or dippjfng the front sight and shooting
low, or jerking the trigger and Jerking it off to the
left at what we call 7:00 o'clock position off of
the target or anticipating the shot and bucking into
it and/or pushing it up to the 1 : 0 0 or 2 :00 o'clock
position, all of which the person who is not familiar
with the particular terminology may call flinching.
Q. Thank you. What does that have to do with
uslngthe center mass as the area recruits should
learn to shoot at and hit?
A. It allows them that should they make an
error, which are common, that still they might hit
their target and may incapacitate or stop that person
°r target or whatever, if you want to relate to that
person, may stop that person from performing the
illegal act, but certainly in marksmanship it would
indicate to them that that is the greatest area and
best area to aim at to hit an area on the target.
Q. Let's assume for purposes of hypothesis
at this point, a recruit could be taught to shoot
at parts of the body other than the center mass to
which you have made reference.
A. I would not —
51.
Q.
A.
Let me finish the question
Excuse me.
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52.
A.
Q.
Formulation, if you would, or could shoot
the arm portion or the hand, would you, based upon
your knowledge of Memphis Police Department policy
arid your own policies with respect to instructions
of recruits, would you teach that type of marksman
ship?
No, sir, I would not.
And why wouldn't you?
Because I think it is an impossibility.
There is other factors --
Would you entertain my hypothesis for a
while?
• Yes, sir, I will and be glad to throw a
little of my own in there if you don't mind.
. Let's take mine first and then I will be
glad to entertain yours.
A. All right, sir.
Q- My hypothesis, you, in fact, Mr. Coletta,
as a skilled marksman, are a person familiar with the
use of the teaching of. firearms, could teach recruits
to shoot arms and leg areas other than what you refer
to as the center mass?
' Are you saying that I could.
could, that is a hypothesis, and the
question is if that were possible would you do so,
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1 would you instruct recruits in that respect?
J.
A. No, this would require qualification. It
would require qualifying. Certainly I would,
certainly I, however, number one, we are bound by
a number of variables under which we operate. One
is a time factor. I think as I said before that it
is possible to teach anyone within the time specified
that we have to train recruits, and, in fact, is
in my experience, it may be impossible to teach
anyone to hit that particular target every particular
time when you throw the other variables that come
into play, and I guess you are applying this to the
police work, so I throw it in. In addition we are
bound by budgetary requirements. Now, I'm certain
that the budgetary requirements are not the concern
of this court, but it is my concern, and when you
asked me would I teach, then I must say certainly
I ’m bound by the budgetary requirements, and it is
a very real problem 'for me, as a training
administrator, we are bound by the quality of the
students that we get, the quality and the aptitude
that he possesses on the front end, so with all
of these variables brought into play, for that
reason I say that it is impossible toteach a
recruit at this time to be a marksman to the extent
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liin ’
5 .̂
t h a t h e c o u l d h i t a itdn ’ s a r m , a l e g o r a n y e x t r e m i t y
o f t h e b o d y .
Q . O . K . W e l l , l e t ' s t a k e a s i t u a t i o n w h e r e a
p e r s o n i s a r m e d a n d e i t h e r c o n f r o n t i n g t h e o f f i c e r o r
t r y i n g t o f l e e . I s n ' t i t t r u e t h a t t h e e x t e n t t o w h i c h
a n o f f i c e r c a n h i t t h e c e n t e r m a s s , t h a t i s t h a t
m i d p o r t i o n o f t h e b o d y , t h e g r e a t e r t h e l i k e l i h o o d
t h a t t h e p e r s o n w h o i s u n a r m e d w i l l n o t s h o o t t h e
o f f i c e r a s o p p o s e d t o , f o r e x a m p l e , s h o o t i n g a
p e r s o n , w h o i s a r m e d , . i n t h e l e g b e c a u s e h i s h a n d
w o u l d s t i l l b e f r e e a n d h e m i g h t s h o o t t h e o f f i c e r ,
i s t h a t f a i r ? I s t h a t n o t f a i r ?
A . W o u l d y o u r e p e a t t h a t a g a i n , M a y b e I
d i d n ' t f o l l o w t h e g i s t o f i t .
Q . I f a n o f f i c e r i s c o n f r o n t e d w i t h a s u s p e c t
w h o i s a r m e d , a n d l e t ' s a s s u m e t h a t t h e s u s p e c t i s
e i t h e r p o i n t e d t o w a r d t h e o f f i c e r o r r u n n i n g a w a y ,
b u t h a s a w e a p o n , a n d f o r a l l I n t e n t s a n d p u r p o s e s
a n d t o t h e k n o w l e d g e o f t h e o f f i c e r , h e ' s a b l e t o ,
w e l l , m e e t s a l l o f t h o s e r e q u i r e m e n t s i n t h e f i l m ,
t h e a b i l i t y a n d t h e o p p o r t u n i t y a n d t h e J e o p a r d y
f a c t o r s t h e r e .
A . A l l r i g h t , s i r .
Q . I s i t n o t c o r r e c t t h a t a n o f f i c e r w h o s h o o t s
t h a t c e n t e r m a s s w i l l b e t t e r a b l e - - w i l l b e t t e r
orroO iJ t > 45i
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1
Mi 55.
i n s u r e t h a t h e ' s n o t g j l n g t o g e t s h o t b y t h a t
p e r s o n w h o i s a r m e d a s o p p o s e d t o i f h e s h o t t h e
p e r s o n i n t h e a r m s o r h a n d o r l e g o r s o m e o t h e r p l a c e ?
A . I c a n ' t p r e d i c t t h a t .
Q . W h y c a n ' t y o u p r e d i c t t h a t ?
A . B e c a u s e o f t h e v a r i a b l e s i n v o l v e d a n d t h e
e f f e c t o f b u l l e t s o n l i v e t i s s u e .
Q. I s i t y o u r a s s u m p t i o n t h a t a p e r s o n , i f a
p e r s o n w e r e s h o t i n t h e l e g a s o p p o s e d t o b e i n g s h o t
i n t h e s t o m a c h , t h a t t h e r e w o u l d n ' t b e a n y e x p e c t a n c y
t h a t i n t h e s i t u a t i o n - w h e r e t h e p e r s o n i s s h o t i n t h e
l e g t h a t p e r s o n m i g h t b e a b l e t o r e t u r n t h e f i r e ,
w h e r e a s i f t h e p e r s o n . i s s h o t i n t h i s m i d p o r t i o n
a n d t h e p e r s o n w o u l d b e i n c a p a c i t a t e d t o t h e e x t e n t
t h a t t h e w e a p o n m l g h t _ ^ n o t b e f i r e d ?
N o , s i r , I d o n ' t b u y t h a t a t a l l .
T h e n w h y ?
I ' m t r y i n g t o f i n d —
I ' m s o r r y .
I t d o e s n ' t m a t t e r w h e r e t h e p e r s o n i s s h o t
g e n e r a l l y , s p e c i f i c a l l y , y e s , b u t g e n e r a l l y , b u t t h e
m a t t e r , w h a t y o u s h o t , y o u k n o w , t h e r e a r e a l o t o f
v a r i a b l e s , w h a t y o u s h o t h i m w i t h , t h e c a l i b e r , t h e
p r o j e c t i l e , e t c e t e r a , e t c e t e r a . P r e s u m i n g a l l t h i n g s
t o b e e q u a l , h e s h o t h i m i n t h e c h e s t , t h e p r o b a b i l i t y
A .
Q .
A.
Q .
A .
tJ54 455
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1 i i 56.
of him becoming, I li^gine what you say is neutralized
rather than incapacitated, because he’s incapacitated
if you knock his leg out from under him.
Q. By neutralized, let me understand your
terminology, does that mean that the persons will not
be able to return fire?
A. He is Immediately stopped from any further
action.
Q.
A.
Including fire?
Any action.
Q. And incapacitation in your terminology
would be a less drastic impact upon the person than
neutralization?
A. Yes, it would be. Now, the things, and
this evolves down again to the bullet effect on
people and it is not a predictable factor balllstician
cannot predict-'what is going to happen. I think it
is more than psychological than anything, just my
own viewpoint that if a person is shot that fact
must register on his brain in order for him to
immediately stop whatever act he is performing.
Q. All right. Novf, based upon your experience
^^d your knowledge in the field, can one predict the
extent to which a wound in one area of the body will
have a more neutrallzinp: effect than a wound in
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j I 57.
another part of the b^ky?
A. Yes, sir, you can.
Q. And can you indicate the nature of that
progressive neutralizing effect in terms of areas of
the body?
A. Yes, sir, I will try to. If you were to
strike a person in the head, for example, and it
strikes the central nervousness, the brain, the
control, then my guess, of course, is then you would
neutralize him faster.
Q All right.
A. In the chest portion, I don't know, I ’m
not a medical doctor.
Q . All right.
A. I can relate what I have seen from
experience.
Q. By'chest, do you mean from the base of
the neck down to the rib cage?
A. The stomach.
Q.
A.
Q.
A.
The bottom of the ribcage?
Yes, sir.
All right.
I don't really know, I'm not a doctor.
from the stomach, again I don't really know. All I
can relate are my experjences on what I have read
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and what I have seen.
Q. And what have you concluded from that
exercise?
A. I have concluded that there is no projectile
that is in the hands of police at this time that will
effectively neutralize a person or stop him instantane
ously from performing another act.
Q. But if you will Indulge me, I believe the
question was, what are the relatively neutralizing
effects based upon, whether a projectile hits various
parts of the body, and we had gone from the head down
to the chest area to the stomach. Is it clear that
that mid portion will probably cause a person to be
more neutralized by a projectile than if that person
were hit in the chest area?
A. p: If he were hit where?
Q. ‘ In the chest area.
A. In the chest he v/ould be more neutral?
I couldn't say, yes. It depends on what it strikes.
ft
It depends on the velocity of the projectile. It
depends on a lot of things.
Q. All right. Well, why do you teach the
recruits to shoot at the central mass, if, in fact,
it is possible that shooting a person in the leg
might have a more neutralizing effect?
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n
A. It has greater room for error. The probabili
of hitting that area when you hold center mass.
Q. O.K. So it is the bigger target. Is that
correct?
A. Y■ es .
Q.
A.
Q.
Are you concerned with neutralizing people?
I sure am.
And Is ityour concern to neutralize
people even when they are unarmed and pose no threat
to officers?
A. You know, a police officer is sworn to
uphold the law, that may sound trite and cliche, but
it isn’t, that is his duty, but that is what he is
sworn to do. He must enforce the law by whatever
reasonable means that are at his disposal, whatever
he'is allowed to do, whatever the law dictates'that
. • I '
he should dp, whatever policy that the law allows
him to, it is his duty to apprehend the person
certainly, and we know and we perform acts every day
which may, to us as an individual, be distasteful,
it is our duty, therefore, we must perform it.
Q- I ’m sure there is no disagreement here in
the court with the point that you just made, Mr.
Coletta.
DAYS; Your Honor, at this point
ty
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60
I'm concer^d with moving into another
area of inquiry and I was informed by
my co-counsel, Mr. Bailey, that he had
a witness In'the court -- is he still
present? Who would appreciate being
allowed to testify at this point, I
think it is a logical break in my
examination, and if counsel has no
strenuous objection I ask the court's
Indulgence.
THE COURT: All right, sir. We
will take a recess and then we will
hear from -- is your other witness an
extended witness?
MR. BAILEY; No, sir, his
testimony will follow the same trend
of Chief Dan Jones.
THE COURT: All right. We will
take a recess. Do you wish to be heard
in that regard, Mr. Klein?
MR. KLEIN; No, Your Honor, I'm
going to ask them probably to
accommodate me at one time or another,
and this presents no problem.
THE COURT: You may step down, sir,
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61
We Will taĵ e a brief recess.
(Recess.)
THE COURT: You may call your next
witness . .. *
s;-
MR. DAYS: I would like to call
Mr. Barksdale.
* * * * *
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A.
Q.
A.
Q.
A.
EUGENE L. BARKSDALE,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. DAYS:______ _
Q* Would you state your full name for the
record, please.
Eugene L. Barksdale.
And do you reside In Memphis?
Yes, sir, I do.
Are you presently employed?
I am on a leave of absence from the '
Memphis Police 'Department.
And prior to your taking leave of absence,
what capacity did you have at the Memphis Police
Department?
A* I ’m an inspector. At the time that I
took my leave of absence I was Inspector of the
personal crimes bureau.
Can you give some indication of the nature
of your responsibilities as a commander of that
division?
• Right, I had the administrative duty and
responsibility and command responsibility of all
detectives assigned to homicide, assault, sex crimes.
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1 robbery and the crime scene bureau.
How long have you been on the Memphis
Police Department force?
A. 26 years,
'5- Have you been employed by anyone other
than the Memphis Police Department?
A* No, sir, I have not.
fair to say that your entire
life as a police officer has been spent on the
Memphis Police Force?
A - Y e s , s i r . I t I s .
What Is your educational background, Mr.
Barksdale?
High School graduate. I have approximately
three years of college. I*m a graduate of the FBI
academy, graduate of the Air War College and several
police administrative schools and seminars and
so forth.
You mentioned the FBI academy, can you
describe the nature of the training that you received
there?
A* Twelve years training program conducted
by the FBI which Includes all facets of police work,
federal law, court decisions and things of that nature.
Now, In your capacity as Inspector, whichQ.
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1 Other officials in the department were superior to
you?
Anything above the rank of inspector,
chief inspector, deputy chief and chief and director
of police.
* So there are four categories above you,
is that right?
A. Yes, sir.
Q. And how many levels below?
A. Captain, lieutenant, sergeant and patrolman
Q. So four below?
might add detective and there is a rank
of detective.
Q. Is the position of commander of a division
an administrative capacity?
It is commander and administrative, you
have the command responsibility of supervision.
Q. So that Involves direct supervision of
line officers in dealing with the problems in the
area that you mentioned?
A. I deal primarily with the captains in
charge of the various bureaus, but it is my total
responsibilities to see that the duties are
carried out effectively and efficiently.
Q* I see. In your performance and experience.
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1 as a police officer here in Memphis, have you arrived
at any opinions of what standards control- good
police work in the apprehension of fleeing felons?
A. I have always been of the opinion and
still of the opinion that you should never use a
firearm to apprehend a felon or suspect unless it
is absolutely necessary for the apprehension of
that suspect.
Now, in the articulation of that standard,
do you believe that there is any variation in the
standard where we have a situation where a fleeing
felon is armed as opposeci to a situation where
a fleeing felon is unarmed?
A. Of course, it is difficult, I know, at
times to determine if a suspect is armed or
^^^rmed. I think that there is a differentiation
there, if you are positively certain beyond a
reasonable doubt that the defendant is not armed,
I think you have a different situation than you
would if you knew that the defendant was armed.
Q* Can you describe in more detail the nature
of the distinction that you see in your capacity
as an official?
Well, if a person is unarmed, and you know
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1 that he is unarmed, you are not in fear of your
life in an attempt to apprehend and your harming
an innocent bystander as opposed to if he is armed.
If you know that the suspect is armed, you approach
him more cautiously and use a little discretion as
to how you are going to apprehend.
MR. DAYS: Your Honor, I would
like to apologize to the Court for
getting in to these details to
qualify Inspector Barksdale as an
expert in the area of police
procedure.
THE COURT: You may proceed.
If there is any objection to
proceeding on that basis?
MR. KLEIN: I want to know
specifically what he's going to
get into. Of course, I can ask
questions on cross examination
about what his qualifications are
in that particular area. I think
I know where he is leading but
I'm going to wait until he gets
there.
THE COURT: I take it that there
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is no objection to you proceeding..
MR. KLEIN; Fine, that is
Perhaps the basis —
MR. KLEIN: I'm not objecting
yet because what he has asked him,
I think he can probably ask. I
can't object until I know what the
other questions are.
THE COURT: You are not waiving
any objections, Mr. Klein, I'm
simply stating, and it is apparent
that there is ,no objection to proceeding
along this line of Inquiry. You may
proceed.
Q. (By Mr. Days) Mr. Barksdale, I was asking
you whether you felt that there was a distinction
between the standards of good police work and
apprehending a fleeing felon between a situation
where a fleeing felon was known to be armed and a
situation where a fleeing felon was known to be
unarmed, and I believe you said that you felt that
there was a distinction. V/ould you Indicate to the
Court what you feel that distinction is?
A. Well, I thought I said that if a
person, if you know that a person is unarmed, that
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' you can approach him without being as cautious
2 you can be a little more open about you approaching
3 that individual. As far as openness, running, or
̂ whatever the case may be, without a fear of being
5 shot as opposed to the person who had a gun or
6 weapon, you would approach more cautiously, you
7 wouldn’t run quite as fast or take cover or something
8 like that to keep from being fired upon.
9 Q. All right. Mr. Barksdale, I would
10 like to direct your attention to Exhibit 6 in the
11 record and ask you your opinion as an expert with
12 respect to whether resorting to lethal force under
13 the circumstances that I ’m going to describe was
14 reasonable based on your knowledge and experience.
15 Exhibit 6 is a --
16 MR. KLEIN: May I move closer,
17 Your Honor.
18 THE COURT: Yes, sir.
19 Q. (By Mr. Days) This is a scale model
20 of Vollentlne here in the City of Memphis and
21 its surrounding area. On the southwest back of
22 the house there is a- fence. Can you see that?
23 A. Yes, sir.
24 Q. Running in a southward direction, and
25 that fence is determined to be approximately three
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feet high. It runs in, without Interruption, to
another fence. You see that fence?
A . Yes, 3Ir.
Q. Which has been Identified as being
between five and a half and six feet high. As you
can see that ladder fence runs completely across
the back of this yard without Interruption terminating
at the east boundary of that property, which Is also
fenced In, Is that correct?
A . Yes, sir.
And there Is also an outbuilding at the
southeast back of this property at 638 Vollentine.
The situation Is set at approximately 11:00 In the
evening and -police have been notified that a prowler
Inside is at 739 Vollentine. Two officers reached
the scene of the accident, one officer moves along
the west side of the house moving in a southwardly
direction, one officer moves on the east side,
also In a southwardly direction. As the officer
reaches a portion of the house close to the southwest
corner of the house, but west of this three foot
fence, the officer with his flashlight picks up an
individual, after that Individual has run from the
back of the house to this six foot or five and a
half to six foot cyclone fence, a chain link fence.
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1 It has been established that this fence Is one of
a pointed variety at the top. It Is not rounded,
but pointed. The Officer using a cell light flashllghi
shines his light on the Individual at the base of the
fence and that Individual Is In a crouching or
stooping position with the hands on the fence. The
officer can see that the person Is unarmed and can
make certain things out about the size of the
Individual, so It Is Just that the Individual was
certainly shorter than six feet and approximately
a hundred and thirty pounds. The officer on the
west side of the house yells to the individual to
halt, police, or something to that effect. The
person at the fence stops and looks at the officer.
The officer on the south side of, southwest corner
then yells to the partner on the southeast corner,
he’s on the fence, go get him, and repeats that
Instruction. The officer to the east does not
move Immediately toward the area where the suspect
Is located. At the point of giving the second
command to his partner, that Is Indicating where
the Individual was located, the officer on the
west side sees this Individual begin to climb
the fence or spring over the fence and has reached
at least the point where his waist level Is at the.
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1 Is at the top of this cyclone fence, and at that
point the officer fires his weapon, hitting the
Individual In the head. The body then drops across
the fence partially with the torso area and the arms
and the head hanging on the south side of the cyclone
fence, with the legs and feet hanging on the north
side of that fence.
Given those set of circumstances and
the fact that prior to shooting his weapon the
officer, who was six-four and stated that he could
step over this three foot fence, but did not do so
before firing, assume that that Is also part of the
record, based upon your experience and your training
as a police officer, would you say that this police
officer who fired the shot acted as a reasonable
officer under the circumstances In resorting to
lethal force?
MR. KLEIN: Objection, Your
Honor.
THE WITNESS: Sir, may I ask
a question.
MR. KLEIN: Your Honor, the
objection Is the same that I made
prior to Mr. Jones responding to a
similar type question or question that
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1
I think was propounded to Mr. Jones,
had a few different facts in it,
but again it is for the same reason.
I think that he•s called upon to
ask what your Honor is ultimately
asked to decide. I object on that
basis and also.object on the basis
that he's asked to assume certain
facts, but not all of the facts
which pertain in this particular
situation. .Therefore, I don't
think that he can accurately give
an answer.
THE COURT: I will make the
same ruling as I did previously.
He may ask and the response may be
given in making this ruling. I'm
not ruling ultimately as to whether
or not the question and the response
is or is not material and relevant
under all of the facts and circumstances
here. He may ask and the witness may
respond to that extent and for the
purpose of permitting the record to
show that it is overruled at that time.
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Q. (By Mj.. Days) Do you recall my question,
Mr. Barksdale?
A. Yes, sir. May I ask a question, Your
Honor.
THE COURT: Yes, sir, you may.
THE WITNESS: Why didn't he
get a response from his partner when
he told him that there Is the man,
go get him?
MR. KLEIN: I'm sorry, what was
your question?
THE WITNESS: Why did his partner
not respond when the officer told him
that there he is, go get him. That
is good police procedure, I mean, you
hold a suspect at bay, so to speak,
and then your partner approaches him
and frisks him, puts the cuffs on
him and takes him into custody.
Q. (By Mr. Days) There is nothing In the
record to explain that particular situation, Mr.
Barksdale, so could you answer the question without
that particular fact having been clarified?
A. May I ask another question.
Q. Certainly.
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1 A. How did he know that the prisoner was not
armed, that the defendant was not armed?
Q. His testimony was that, well, we are really
dealing with an assumption and the assumption based
upon the hypothetical that I gave you was that the
officer knew that the person was not armed. And
for your purpose In responding to the question you
can rely upon that.
A. O.K. First of all, I would like to make
a statement that for.good police procedure, and
we are, that Is what we are talking about, good
sound principles Is that’we, the number one
policeman who had the gun on the suspect told his
partner to go get him. His partner should have
done It, and had he reacted to that order or command
or request, this situation would not have happened.
All right. Being as he did not respond,
I think the officer who shot the suspect had a
decision to make In his ovm mind, and he elected
to shoot the Individual. Possibly he should have
stepped over the fence and made an attempt to
apprehend the suspect because of that short distance
and his height and agility. In all probability he
could have apprehended the subject without having
to shoot him, but there again that Is a matte r of
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1 a decision that he made at that particular time, but
I think probably good practice would have dictated
that he made an effort to step over the fence.
Q. Would you have gone over the fence and made
an attempt?
A. I probably would.
Q. Assuming that the officer felt that he
could not reach the suspect before the suspect
climbed over the fence, would It have been proper
police procedure for the police officer to get as
close to the fence as possible before firing his
weapon?
A. I think there agaln--
MR. Your Honor, excuse
me. I*m making a continuing objection,
I want that:understood for the record.• ' I
' THE COURT: All right, it will
be a continuing objection.
A. Again, I think that Is a personal decision
for that police officer to make. At that particular
time he did not want the defendant to get away,
so he took whatever action that he deemed necessary
at that particular time.
Q. Would you have made an effort to get as
close to the fence --
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A. If I were going to shoot him I would have
shot him from where I stood.
MR. KLEIN: I*m sorry, I didn't
understand.
A. (Continuing) If I was going to shoot the
man I would have shot him from right there.
Q. But your testimony is that you would have
ii’ade an attempt to run over the fence?
A. I probably would have under the circumstance!
Now, there again, that is an individual decision to
make.
Q. Well, based up6n your knowledge of proper
police procedures, would an officer have been expected
to run over to that fence?
A. I think he should have tried to apprehend
him.
Q. Mr. Barksdale, suppose the situation were
such that the officer on the west side did not,
in fact, see his partner at the southeast corner at
the time that the individual at the fence had halted
at the command of this officer on the west side, under
those circumstances, that is where the officer on
the west side did not see his partner and did not
know his whereabouts, would it have been appropriate
under those circumstances for the officer to make an
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attempt to run after the individual?
A. I think he would have been a little more
cautious and I think he would have been less apt
to run after him if his partner was not — I would
like to ask another question, if I may.
All right.
316
Q
A. Did he see his partner there or did his
partner respond by voice communication or in any
way so that he would know that his partner was there?
Q. Let's assume two situations. One is a
situation where he saw his partner and the other is
a situation where he did 'not see his partner and did
not hear his partner, do those different circumstances
change your approach?
A. Yes, sir, I think so. If you know that
your partner is there and you know all good police
procedure works on a partner relationship to take
care of each other. And if he knew that his partner
was there and that for some reason his partner did
not respond, that is one thing, but if he didn't
see his partner and was not sure that he was there,
so then that would present another situation. If his
P®-rtner was there he would probably be less apt
to shoot*the individual than if his partner was not
there. I think he would be more prone to shoot him
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1 if his partner was not there, I think, if I*m making
myself clear, because you work on a partnership
concept.
Q. Mr. Barksdale, how certain do you think
an officer should be that he could not apprehend
a fleeing unarmed felon using non-lethal means before
he resorts to lethal means?
A. There again, you know, that is a matter
of a personal opinion as to what he is thinking at
that particular time because he is under a lot of
stress and that adrenalin is running and you are
straining to do everythi'ng possible to apprehend
an individual without resorting to violence, but
it is an individual decision to make that particular
time based on the training and the Job knowledge
that you possess, and that is where the individual
thought comes in.
Q. Well, should an officer be fairly certain
that he can capture the fleeing felon or reasonably
certain or merely absolutely certain, what standard?
A. If he is sure that he couldn’t apprehend
that subject, and it is a fleeing felon, then under
the state law then that is his Job. Now, if he
is sure that he could apprehend and knows beyond
a reasonable doubt that the individual is not armed.
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1 then I think he should use whatever means at his
disposal to apprehend without the shooting.
Q. What about something In between where the
officer knows the felon Is unarmed and Is not certain
that he can catch him but thinks that the likelihood.
Is that he cannot catch him?
A. I think he should make the effort to
apprehend him without firing a shot.
MR. DAYS: We have no further
questions.
THE COURT: O.K. You may examine.
MR. KLEIW: I would like to examine
with the same understanding that I
examined Mr. Jones.
THE COURT: You are examining
without waiving your objection.
CROSS EXAMINATION
BY MR. KLEIN:
318 .
Q. Sir, you said you were on a leave of
absence?
A. Yes, sir.
Q. I think It Is because you are Involved
in a political campaign at this time?
A. Yes, sir, I am, yes, sir.
Q. I don't mean to be prying. I assume that
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1 If you are unsuccessful that you intend to go
back to the police force?
A, September 1st, yes, sir.
Q. Are you familiar vdth the Academy, the
training academy?
A. Yes, sir, I am.
Q. You are familiar with who heads that up?
A. Captain Coletta, yes, sir.
Have you been through that academy
yourself?
A. - Yes, sir.
Q. Are you familiar with the training program
out there in regard to the lethal force and so forth?
A. I haven't been to the academy, approximately
we go through the annual, probably due to go through
my retraining section probably in the next three
months.
Q. They do give instructions on the use of
lethal force?
A. Yes, sir.
Q. As well as tactical and legal instructions,
is that correct?
A. Yes, sir.
Q. That school is, or is it in your opinion
a school?
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A.
Q.
Q.
The finest In the country.
The finest in the country?
MR. DAYS: I object to this line
of inquiry, it goes beyond the extent
of direct examination.
THE COURT: Here again, I rule if
he wants to examine beyond the area
he makes the witness his witness and
he may proceed on that basis.
(By Mr. Klein) You say it is the finest
320 .
in the country?
A
Q.
say it?
A.
Q.
Yes, sir.
You firmly believe that, sir, or you wouldn*^
Yes, sir.
Also you mentioned that you have been to
the FBI academy?
A. Yes, sir.
Q. And do the principles that they teach
here atthe Academy coincide with the principles that
are taught at the FBI Academy?
Yes, sir.
Q. And I think Captain Coletta is in charge
of it?
A. Yes, sir.
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Q.
A.
He is an able man, isn't he, sir?
Without a doubt. In fact, he, too. Just
returned from the FBI Academy where he graduated.
Q. I will call you Inspector, if that is all
right, I guess that would be a proper title to use?
A.
Q.
Yes, sir.
Inspector, you were asked to assume a lot
of facts which existed at a particular time, and
then asked to give your opinion, what you thought
good police practice would be under those particular
set of facts, is that correct, sir?
Yes, sir.
Q. Now, inspector, did you know how far in
distance the police officer was from the suspect at
the time of the shooting?
A. No, sir, not really, but I just could tell
from the direction.
Q. Would that make any difference to you if
you didn't know how far he was, the distance?
A. It would determine whether or not you
could possibly make -- resort to using the firearm,
the distance Involved and the subject unarmed.
Q. What about the area behind the fence that
the suspect was climbing over at the time, and by
that I mean v/hether the area was dense with brush
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1 or at least It had certain cover and whether or not
there was a means of escape once the suspect gets
over the fence? By that I mean, means of escape,
an avenue by which he could get away?
A. That would make a difference.
Q. That Is a fact to be considered, too. Is
It not?
A. Yes, slr..̂
It Is true, also. If an officer was placed
In a situation at a time such as this, the given
hypothetical question, that he’s got to make split
second Judgment?
A. Yes, sir.
Q. We are talking about fractions of second?
A. Yes, sir.
Q. What he does based on his training and
everything at hand?
A. That’s what I said, the Individual officer
at that particular time and circumstance, that
dictates his actions.
Q. All right. And what one officer may do
In a particular situation, and obvious, too, say,
another officer may not do that?
A. Yes, sir.
Q. Well, who Is to say what Is right and what
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Is wrong In a situation such as that?
A. Standard training and practices and things
that he has been schooled in in the academy dictates
his conduct, but at the same time it is an individual
decision to make at that particular time and he may
be on the department ten years or may never be faced
with a situation like that, so you can't say, you
can’t drill or instill in a person to make an Instant
decision based on a particular situation at a
particular time, but you do the best you can when
they are in the academy to bring hypothetical questions
or points that a person may face from time to time
and instill in them the actions that they should take
at that particular time.
All right, sir. The lighting has something
to do with the situation such as the hypothetical that
was proposed to you by Mr. Days?
Yes, sir.
And again, assuming the lighting is not
323 .
A.
Q.
particularly good, that is, most of the light which
is available at the time is coming from the flashlight
used by the officer, although there may have been
a porch light turned on next door which gave some
lighting toward the back door area of the property,
but not much lighting on the fence area, and assume
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further there was virtually no lighting in the
area behind the fence, that would make a difference,
too, wouldn't it?
A. Yes, sir.
Q. It would be fair to say, would it not, that
if the officer is sure or reasonably sure in his
mind that a felony had been committed and the man
is fleeing and he is concerned or he thinks that
this Individual is about to get away, that he would
be Justified under state law and Memphis Police
Procedures to use his firearm, would he not?
A. Yes, in his ov/n mind he knew he couldn't
apprehend without firing his.
Q. And he would be Justified in doing that?
A. in his own mind.
Q. That is what you have to —
A. That's right, at that particular time.
Q. You get a lot — wouldn't say you get a
lot, but it may be a situation where he's a clearcut
case, he might be a few feet away and no place for
the individual to go and may make a move to the
right or left and the officer may fire his gun and
may be a situation totally unjustified, but taking
this hypothetical situation, wouldn't you agree,
that this is one of those situations where there
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is no clearcut answer to It?
A. If In his own mind he did not think that
he could apprehend him without firing a shot.
Q. All right, sir. Assume further, inspector,
the officer, and if I may point to this model which .
has been marked exhibit 6, has come around the west
side of the house and he is not right at the fence,
but he is back from the fence, and then he sees
the subject on the fence, and I might say, let's
assume that he is, I think Mr. Days was pointing
approximately in this area, but let’s assume that
he was a little further east, more toward the
corner where this little outhouse is located, and
then the officer yells and tells him to halt, and
he halts momentarily, say he's in a stooping position
with his hands on the fence, and then the officer
says something to his partner, who he assumes is
coming around the other side of the house to get
him, and then the officer takes a couple of steps
^o^ard the fence, the fence which is represented
here which is about a three foot chicken wire
fence, and then the suspect begins to spring and
is halfway over the fence. After the officer has
taken a couple of steps toward the chicken wire
fence, but has not had a chance to Jump over or
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step over or whatever Is necessary, again would he
have been Justified in using his firearm under those
circumstances?
A. At that particular time I would say that
he was of the opinion that he could not Jump that
fence and go that distance and apprehend that
individual before he got over the fence and made
his escape.
But I would like to ask a question again,
as a commander I want to know where that number two
man was, why didn't he respond and help hla partner,
you know, because I think — if that one Individual
had the opportunity to come around this side of
the fence and get to the fence, it looks to me like
his partner could have gone that short distance
to where the individual was or at least to the
• corner of'the house-, where he could have seen him.t ' ' ' ' , • '
Q* Now, let's ,assume, I can't answer your
question completely, I'm not trying to evade you,
but I can only ask you to assume a couple of
situations.
A. Yes, sir.
Q. Let's assume that the partner was coming
down this side of the house but had not quite reached
it, reached the end -- the corner of the house. And
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that the partner over here, who has the firearm
and who ultimately uses it, does call to his partner,
but the partner — say this police officer on the
west side, assume he is coming around, knows his
partner is in the vicinity, calls to him and knows
ultimately he will be on the scene and there is no
response, and he takes his couple of steps toward
the fence and at this point the suspect is beginning
to leap or jump over the fence to the point where
his midsection is straddling the top of the fence,
is the police officer justified to prevent, if in
his opinion that he didn't feel that he had the
time to jump the three foot fence, run the distance
involved between the three foot fence and the six
foot fence, to prevent the individual from getting
away by apprehending him without shooting him, if
in his opinion he was justified? Inother words,
what
A. That is police practice.
Q. That is police practice. In other words,
what you are saying — I think you have been consistent
throughout. What you are saying, if I am correct,
it is up to the officer Involved and in his opinion
whether he thinks he has time to apprehend him before
he gets away?
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1 A. Yes, sir.
Q. Would It be a factor, sir, if the officer
involved felt like once he got over the fence that
he was, if I may use the phrase, long-gone?
A. I would say so.
You would say that he would be Justified
in using his firearm?
A. If in his opinion — as a commander I would
still like to know where that number two man was, that
is incidental, but still if that partner may have
responded a little faster, this whole thing possible
could have been prevented.
Q. It goes without saying, if the suspect had
stopped v;hen told to halt .and not move, it could
have been prevented, also?
Yes, sir.
MR. DAYS: Just a couple of
redirect --
MR. KLEIN: Excuse me, I may
have --
MR. DAYS: I*m sorry.
MR. KLEIN: I have nothing further.
THECOURT: You may proceed, Mr.
' Days . •
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A.
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1 REDIRECT EXAMINATION
BY MR. DAYS:
Q. Mr. Barksdale, in trying to arrive at
your view as to what would be reasonable under the
circumstances of the hypothetical that you were
given, would it affect your judgment to know that
the fleeing felon was trying to climb a cyclone
metal fence as opposed to some other type of
fence, would that make a difference in terms of
whether you would think the action was reasonable
or unreasonable?
What was the physical — the defendant,
height and so forth, I know that doesn't have a lot
to do with it.
Q. V/ell, let’s assume that the defendant
was between, not the defendant but the fleeing
felon was 5-3 and 55, and the fence is a cyclone
fence with the pointed on the top variety, would that
make a difference in your evaluating the reasonableness
of using lethal force?
A. Possibly what chance he stood of getting
over the fence, how agile the officer, whether he
could get over that fence, the distance between
that fence and the defendant.
Q. I'm directing your attention to the
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1 characteristics of the fence, a cyclone with a
pointed top?
A . I t w o u l d b e d i f f i c u l t t o g e t o v e r .
Q* How would the fact that It Is a cyclone
fence and pointed affect your Judgment as to whether
shooting was reasonable, can you Indicate that?
A. Well, of course. It Is at night and
It Isdark, apparently he has his flashlight, if
I’m correct, on the defendant. It would possibly
be hard In his mind, the officer’s mind to
determine whether or not that was that type fence.
>
Q. Whether it was pointed at the top or
not?
A. That’s right.
Q. But would the height of the fence make
a difference?
A . I f I t I s a s i x f o o t f e n c e a n d h e i s
f i v e f o o t t w o i t w o u l d b e d i f f i c u l t f o r h i m t o s c a l e
t h e f e n c e e s p e c i a l l y I f y o u h a d t h e m e t a l w i r e
p o i n t s s t i c k i n g u p .
MR. DAYS: I have no further
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questions.
THE COURT: Anything further?
RECROSS EXAMINATION
BY MR. KLEIN:______
Q. Again, of course, you are asking the
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331.
officer to determine a lot of things in a split
second, aren't you?
A.
Q.
Yes, sir, I realize that.
And that is a factor, too, is it not?
Yes> sir.
MRi KLEIN: That's all.
THE COURT: You may step down.
THE WITNESS: Am I through. Your
Honor?
THE COURT: Any reason why Inspector
Barksdale may not be excused?
MR. DAYS:’ No.
(Witness excused.)
THE COURT: If you will recall
Captain Coletta.
i( « « « «
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1 JOniyA. COLETTA,
resumed the stand and testified further as
follows:
DIRECT EXAMINATION
BY MR. DAYS:_______
THE COURT; You remain under oath,
of course, Captain Coletta.
Proceed, Mr, Days.
MR. DAYS: Yes, Your Honor.
(By Mr. Days) Mr. Coletta, in your
capacity as the head,-,of the firing range between
1970 and 1975, were you Involved in questions
relating to the type of handguns and ammunition to
be used by the police departments?
A. Yes, sir.
Q. Can you Indicate whether your knowledge
as to the type of handgun the police department
required its line officer to use prior to 1970?
A.
Q.
A .
Q.
A.
Q.
Yes, sir.
And what was that?
A Smith & Wesson or a Colt,
And what caliber?
.38 Special caliber.
N o w ^ a l s o ^ p r l o r to 1 9 7 0 are you aware what
type of ammunition line officers were required to
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use in their weapons]^
A. Yes, sir.
Q. Could you indicate what that was?
A. The standard'until about '69 or '70 was
a 158 grain lead or luballoy round-nose projectile,
.38 Special projectile.
Q. For the purpose of the record and for
the assistance of the court, could you, in lay terms,
as best as you can, describe what that particular
projectile looks like, that is, define why it is
Called a 158 grain, what that represents, the
luballoy, and .the caliber, for example, could you do
that?
A. • Yes, sir, the caliber pertains to the
diameter of the bore. Actually a .38 Special is
not 38/lOOths of an inch but rather it is 35/lOOths
of an inch, but it is a bit smaller, but it is
termed a .38 Special and it is designed to fit
that particular type of weapon. The configuration
of th*e cartridge Itself, of course, is standard for
the case and the base of it, but the bullet
configuration is round-nose and the construction of
the bullet is of a luballoy. When I say luballoy,
that is all a luballoy projectile but be coated
with some type of copper gilding to protect the
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1 4 •»
l e a d I t s e l f t o k e e p jy: f r o m r u b b i n g a n d d i s f i g u r i n g
s o e a s y .
Y o u u s e d t h e t e r m s b u l l e t a n d p r o j e c t i l e ,
a r e t h e y s y n o n y m o u s ?
Y e s , s i r , b u l l e t a n d p r o j e c t i l e , b u t n o t
s y n o n y m o u s w i t h t h e w h o l e c a r t r i d g e .
*5* C o u l d y o u d i s t i n g u i s h b e t w e e n t h e b u l l e t
a n d t h e p r o j e c t i l e o n .t h e o n e h a n d a n d t h e
c a r t r i d g e o n t h e o t h e r ?
Y e s , s i r . T h e c a r t r i d g e i s c o m p o s e d
o f f o u r b a s i c p a r t s : t h e c a s e , t h e p r i m e r , t h e p o w d e r
a n d t h e p r o j e c t i l e o r , t h e b u l l e t .
Q.
A .
Q.
A .
Q.
T h e c a s e , t h e p r i m e r - -
T h e p o w d e r .
T h e p o w d e r a n d t h e p r o j e c t i l e ?
A n d t h e p r o j e c t i l e .
S o t h a t w h e n y o u r e f e r t o i t b e i n g a
l u b a l l o y o r l e a d p r o j e c t i l e , y o u a r e r e f e r r i n g t o
t h a t p o r t i o n o f t h e c a r t r i d g e t h a t a c t u a l l y l e a v e s
t h e g u n , i s t h a t r i g h t ?
A . Y e s , s i r .
Q * A n d w h e n y o u s a y l u b a l l o y , i t i s t h a t
l e a d p o r t i o n , t h e p r o j e c t i l e t h a t i s c o a t e d w i t h s o m e
o t h e r a l l o y , i s t h a t c o r r e c t ?
A . Y e s , s i r , t h a t ' s r i g h t .
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Q. • What about Iĵ he 158 grain, what does that
represent?
A. Well, if the court please, every alloy
weight is 7,000 gram weight to the pound, the weight
of the projectile is 158 grains in relation to the
alloy weight.
Q. Do various types of bullets vary in terms
of weight and weight in grains?
A . Yes, sir, they do .
Q. And they vary in terms of the characteris
tics of the projectile?
A. Yes, sir, they can,
Q. And they vary in terms of the caliber?
A. Yes, sir, they can.
Q. Now, after 1970 do you have any knowledge
of whether there was any change in the handgun that
officers were required to use, let us say between
1970 and 1972?
A. Somewhere along that period of time the
type of grain remained the same and the style remains
the same, but I must qualify that and say that there
have been some new models constructed of different
materials, stainless steel, for example, an officer
now carry those, also, but the type is the same.
Q. Well, what about a change in the ammunition
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r^ne of.
66.
required for use by rine officers between that
1970-'72 period?
Initially a change was made around ’ 69 or
j *
•70. I don't remember exactly when going from the
standard round—nose, after police officers experienced
incidents of shooting people and them not stopping or
them performing anaggressive act toward them, and
the need locally, as well as I think nationally,
indicated that this was Indeed the case and something
had to be done that would better protect the
and yet Insure that citizen’s safety was
taken care of, so the hollow-point bullet was
adopted by the police department along that period
of time. Now, Just like a Ford automobile has many
models, ammunition is the same, and during that time
we may have used two or three different types, but
primarily they were all of the same type hollow-point
bullets.
Were they all of the same weight in
grains?
A . No, sir.
Well,, you used prior to or earlier aQ
158 grain?
A . y 3 s , s 11*.
Can you give a general indication of what
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1
’ 67.}
weight in grains characterize the ammunition used
between 1970 and '72 or around that?
Super Vel, which is an ammunition company,
came out with a new high velocity round and it caused
I think, manufacturers to really look hard at their
particular products. Super Vel utilized the 110
grain bullet and it was a half-jacketed or semi-
jacketed type projectile. Now, they made them
primarily in a soft-point, not a hollow-point, the
manufacturers looked into it, I guess it got them
to looking at their own product. Smith & Wesson
developed a hundred and ten grain semi-jacketed
hollow-point and soft-point. We used and adopted the
Smith & Wesson 110 grain serai-jacketed hollow-point.
right. Now, in terms of the
characterization semi-jacketed, was the bullet that
you adopted after this, change from the 158 grain
luballoy Winchester different in terms of the
character of the jacket from that earlier cartridge,
that is the 158 grain luballoy Winchester?
* You are asking me if the I58 grain
construction of the projectile is different from
what we did --■
Q • Yes, sir.
A* The semi-jacket is a copper jacket that
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1 surrounds the lead portion of the projectile, and
the reason for that being is that you can develop
more velocity and the jacket protects the lead from
melting by the powder gases, and, therefore, it is
stabilized in flight and is accurate.
Q- All right. So the 110 grain had a
projectile that had a partial Jacket on it, is that
right? , ' ’
A . Yes, sir.
Q* And the 158 grain luballoy did not have
that type of Jacket on the projectile?
A. That's correct.
Now, what is the distinction between the
prior cartridge and the 110 grain in terms of the
nose, what is the difference between a round-nose
and a hollow-nose in terms of the use of these
particular types of cartridges?
A. Well, of course, the confIgureation on a
round nose is as stated, it is round. The conflgura'
tlon on hollow-points is generally a blunt-nose with
a small hole in the center of it.
Q* And what, if you know, is the purpose of
this hole in the center of that hollow-nose
projectile?
A. To produce controlled expansion.
33S 493
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Q. Could you^estate that in, if you would.
in perhaps more vernacular terminology, that is,
what is it supposed to do in flight or upon hitting ̂
an object that the round nose is not supposed to do?
course, you Just asked a very broad
question.
Well, I understand perhaps it is a broad
question, but perhaps I could put it in this
context. If you will, Mr. Coletta, why was it, if
you know, that the department went from a round-nose
to a hollow-nose in terms of the caliber?
better stop perpetuators of crimes,
’̂hat function does the configuration
of the nose of the projectile have upon the objective
that you just described?
Configuration of the nose, there are a
number of factors that must come into play, configura
tion of the nose is one, configuration of the nose
tends to allow that projectile to expand upon its
normal diameter, whereas if it were the old round-nose
type, unless it struck bone or some solid object,
generally it would not expand beyond its original
*^^ameter.
expansion, let me see if I understand you
Is it fair to say that a projectile is a round object
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that It is circular
Cylindrical and circular and round, yes,
sir. , '■
-Q.. When a p r o j e c t i l e l i k e t h a t e x p a n d s , w h a t ,
i n f a c t , a r e you d e s c r i b i n g ?
'̂ hat development are you explaining in
/~i *
terms of the change of;that cylinder or that circular
body to some other form?
A- It becomes more blunt-nosed perhaps.
Upon striking an object it will flatten out more
easily. iV,".
that particular characteristic is not
generally associated with round-nose projectiles, is
that right?
to the extent as it does with the others,
yes, sir, that's correct.
Q • M "Now, were you at any point between 1972 and
1975 a sked t o c o n d u c t any s t u d i e s w i t h r e s p e c t t o
whether the police department should alter either the
weapon that they used.or the handgun used or the
3.inniuni11 on used by lino' officGrs?
A- Yes, sir, I'was.
And can you indicate the circumstances
surrounding your being asked to conduct that particular
study?
70.
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7r*
A. The police Union raised the question of
0the round that we were,using, the round of the
j cartridge ..that we were using at that time as being . .- ■
, inadequate , ""'t-hat ..their^^field ■ experiences had'l"'•• .'•..■'j--'*.' . . . • V*
.’i I • - •- '/ u . • ̂ s V -T V. • V •/
• .V ;•, • ̂demonstrated ,to them that it would not stop a
person. We undentook .,initially upon ourselves at
the range to conduct it, the staff and the tactical,
• 1 « V. ̂ U. .. ̂ -,V '•’ ■ , '■ » -’■* *, —; and equipment board, I-(think it ' was tactical and
^valuation board yesterday, it is tactical and ,
equipment board became aware of it and as a matter of
fact it was an item.of.negotiation in the union.
... . . ... . . . . . . C . - .•.........•. _ -V,
. -'v ■contract. At any ra.te. this is why ' It came a b o u t ; V *’ ■*
tactical and equipment board requested that- they
be Involved in the study, and, yes, we did make such
a study. r- .,'/■• • •
Q. . Can you indicate generally what, types of ' .
• considerations^ you used in trying to .determine , I
whether there should be. a change in the . type ̂ nf'
handgun or the type of.., ammunition as compared to.
what the department wap then using at that time, which
was, if I recall..your. pestlmony correctly, it is
110 grain semi-jacketed hollow-nose bullet Smith &
Wesson? ̂ .. -
; A. Yes,.<slr, that’s correct. The. :fac tors'that
go into it, number one,., I guess you would have to
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Separate the.ammunition from the gun, but really it
•''is lnner-rela,ted, but'.j we will separate : it • and the:"?"^^
weapon. ‘ * . . .
. •< ■ %V.
; - q : Yes ,, sir. ’ ,
must consider, number one, the avallablli
We must consider, the .budgetary factors.' We must V'̂'
consider the tralnablllty of -that ■ particular 'gun
• ' .*j-ŷ'
due to the recoil that it produces.' How it would
affect the student due to the muzzle flash, how it
would affect thê stud.ent, we^ must, therefore,' take
„ into account the configuration of the gun 'itself .•/;• v'V;'
We must worry about public opinion, because that, '
too, is a factor.
X . • ■ i'
Q* •. Excuse;'me ,• if I may Interrupt at " t h i s '•
point without -- whatv̂ , do you
being'a factor?,: :..:: iitv\.
u mean by public,'.opinion .•
■■
• ‘ Well.,,;.certainly anything that ̂ the'police■^ i''
department does is under scrutiny from the public,"
the m?dla and certainly adverse publicity Itself ,
is a deterent to morale, deterent to efficient’ .
operation and certainly the police department must,;
^0 ..an extent, .listen.Jj.o what the people have-to-l ., '
'• ; ; ■• . ' ■ • .■ -c V , . .■■■■'■
* i - j -Jv .• . . -t* i A i ■■■/ *'.z f ' ■ V»- . -V/\'p ■' • , .:>• i . V ; . ' W-- ■: say.-, /"n .. '
Q
to it?
So you are'concerned about public reaction
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73
A.
Q.
Yes, sir. J
All right, sir. What other consideration?
A- Those are the major ones. Those, I think,
are it probably. I can’t recall Just offhand.
you conduct tests of various types
of ammunition?
A .
Q.
A .
Q.
A.
Yes, sir. ..
To reach a conclusion on this point?
Yes, sir, I did.
And what types of tests did you perform?
We performed accuracy tests. We performed
-penetration tests. We performed cavitation tests,
as I call them, it is really for our purposes not
relevant in that demonstrating how much effect a
particular projectile would have, but it does at
least give you an idea.
Q* Let me backtrack, if I can just briefly to
get a better sense of what you mean by the various
tests that you did. You mentioned that you tested
for accuracy.
A. Yes, sir.
*5- Can you indicate in a step by step fashion
how you went about testing for accuracy?
Yes, sir. Of course, as I said the handgun
is the most difficult gun to master. Therefore, we
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74.
want a particular rouĵ 'd that will hold a tight group
on consecutive shots. Consistency is what we are
looking for to make certain that the group or the
i^umber of shots all strike as close together as
possible. Now, no man can hold a gun absolutely
still. No one can. So we utilized what we call
a rest, and the rest is attached to a solid object.. i
In the case it was a very heavy cleaning bench
constructed of four by four, a very heavy structure.
Into the rest we strapped a gun, two different kinds
of guns, one a fixed breach gun, where there is no
. (;
gap between the cartridge, the barrel and the muzzle,
^nd then we inserted a revolver in which there is a
gap between the cylinder and the barrel and we
determined that the ammunition that we -- well, I
was speaking of accuracy. All of these things have
to do with accuracy. We determined that the 110
grain have a --
Q. (Interrupting) V/ell, if I may, again
without necessarily cutting off what you are going
to say subsequently, but can I ask you where the
projectiles from those guns were actually fired?
A. They were zeroed in or we adjusted the
mechanisms so they were fired into a bullet trap,
into a mechanism designed for that purpose, a slope
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sheet that would caus'^ the hullet to deflect and
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to spin in a cylinder in the particular type of trap
until it lost its energy and fell into a tray. We
were shooting it at paper.
Q. At paper?
A. At paper attached to this bullet trap.
Q. Getting to the question of penetration,
how did you conduct tests with respect to penetration?
A. In two ways, first it has been an approved
method to line up pine boards and space them one
inch apart. ,We devised a rack whereby we could do
that and'we fired at a distance of ten feet to the
pine boards and contingent upon how many pine boards
would give us the penetration, would give us an
indication of how much the penetration factor of that
particular round was. Then in addition we fired
lit into a clay block and the clay block measured
something five by seven or eighteen inches, I don't
remember, to see if that particular round would stay
within the clay block or exit or whatever.
Q. Now, getting to the question of testing
for cavltational effect --
A .
Q.
A .
Yes, sir.
Ho’w was that done?
Well, again,, as I say, we fired into the
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1 clay and when the, projectile struck the clay it would
cause the projectile to perform in such a manner so
as to create a cavity. The cavity in the clay, of
course, would remain there and it would be visualized
so that we could photograph it afterwards.
Q. All right. ■ Now, I understand why you
would be Interested in having a projectile that
was most accurate, and I understand why you would
have perhaps -- I don't understand why you would
have a projectile in terms of penetration.
A. Yes., sir.
Q. And I don't understand why you would be
concerned with levels of cavitation. Could you
explain your concern with penetration and cavitation
in terms of evaluation of various types of
ammunition?
A. Yes, sir, they are both inner-related.
I could not shoot into the clay to try and
determine penetration without cavitation, that is
our prime concern of it, our prime concern with
penetration is so that a projectile can expend all
its energy within an object structure and not
go on down through the streets, to put it in the
vernacular, not going down through the streets and
hitting some innocent person and not having energy
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1 left Where it can ric^het and hit come innocent
person. In other words, we were looking to see if
that particular round would stay within a specific
area that possibly we could determine as to being a
type of target that we would shoot at. If you relate
it to human beings, certainly we were thinking about
that during the test.
Q. In terms of penetration you talked about
the pine board test.
A. Yes.
Q. Given various types of ammunition and the
fact that this ammunition and the projectiles from
that ammunition went through various pine boards,
what would you conclude as between a projectile that
went through four pine boards as opposed to going
through six pine boards?
A, We would have better knowledge and be
^®tter equipped to tell the officer that if a fram
house were his background what the possibility could
be and it may be a situation where he should not
discharge his firearm. If it were a good penetrator
that did not deform upon Impact, that maintained its
shape, size, and continued to punch through, it
possibly could Injure someone inside the house. As
a matter of fact, there are court cases on file where
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this Indeed did happc
Q. i»m sure there are. What about the
cavltatlonal effect,what Is It that you were trying
to determine with respect to the Impact of these
projectiles upon the clay blocks? ■
A. That a particular round would Indeed
expend Its energy within a specific area. The
physical characteristics of a projectile In that It,
I'm trying to put It as simple, and sometimes It
gets very difficult. In that when It strikes an
. object It happens to expend Its energy before It
Is Inert. If:it expends Its energy within a
certain space of time and produces all of its energy,
that projectile is doing work and it is finished
and It wouldn't go any further. The cavitation
indicates the amount of v/ork that that particular
, projectile Is performing and would be a good
Indicator.that It Is expending its energy very
rapidly and will, therefore, lose the probability
Of going elsewhere.
Q. All right. So the larger the cavity the
greater the energy expended in that clay block?
A . Generally, yes.
Q. Is that fair to say?
A. Generally, yes. To a point.
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A.
Q. Well, what ij that point If you wanted to -
To a point where you get a, a super round.
you know, you might say, which would possibly
detonate or explode on impact, which there are known
within the police field, the police service.
Q. Well, does the velocity at which a
projectile leaves the muzzle of the gun have any
significance in terms of selecting one type of
ammunition over the other?
A. Yes, sir, velocity is very significant.
Q. What is the significance of it.
A. In producing energy the speed of any object
is a factor. And, for example, a sledge hammer, the
harder you can swing a sledge hammer the more work
that it is going to do. The projectile, the faster
that you can push it the more work it can do.
However, you are limited, by the characteristics of
the object which holds it to discharge it, because
this is, as this powder burns it produces pressure
and the pressure can, per square inch, can reach
unreasonable bounds, and when that happens, of course,
the gun would blow up.
Q. Did you measure for the velocity, the
muzzle velocity of projectiles in your studies?
A. Instrumental velocities.
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do
Q* Could you dlcate what that is?
Yes, sir, we used a chronograph, which
is an electronic device that measures speed, and
the chronograph was placed ten feet from the muzzle
of the gun. The chronograph is designed with
two sensors spaced two feet apart, the center
portion of that space was ten feet from the muzzle
of the gun, therefore, it was at that particular
point that the velocity of the particular round was
measured.
<
• But you indeed measured this instrumental
velocity for all the pieces of ammunition that you
studied, is that right?
Yes, I'm pretty sure we measured every one
Of them.
And as a consequence of the study that
you conducted, did you make any recommendations to
the department in terms of whether the present
ammunition, that is the 110 grain semi-jacketed
hollow-point, should be replaced by another type
of ammunition?
Yes, sir, I did. I think you have a copy
of that report I wrote. I don't recall it exactly..
However, I do remember making a recommendation. I
think I said something' about the .il5, and I think I
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s a i d s o m e t h i n g a b o u t ^ l U r t h e r t e s t s , a n d I t h i n k I
s a i d s o m e t h i n g a b o u t t h e a c q u i s i t i o n o f d i f f e r e n t a n d
m o r e v a r i e d t y p e s o f w e a p o n s s o w e c o u l d c o n d u c t
f u r t h e r t e s t s . I t h i n k ' I s a i d s o m e t h i n g a b o u t t h e
R e m i n g t o n 7 5 g r a i n h o l l o w . j a c k e t , a n d 1 2 5 g r a i n
s e m i - j a c k e t e d h o l l o w - p o i n t i s w h a t w e a d o p t e d .
Q . D o y o u r e c a l l i n c l u d i n g t h e 1 2 5 g r a i n
s e m i - j a c k e t e d h o l l o w - p o i n t R e m i n g t o n a s a n a c c e p t a b l e
a m m u n i t i o n ?
A . Yes, sir.
Q . A n d i s i t y o u r t e s t i m o n y t h a t , i n f a c t , t h e
d e p a r t m e n t d i d a d o p t t h e 1 2 5 g r a i n s e m i - j a c k e t e d
h o l l o w - p o i n t a s t h e o f f i c i a l a m m u n i t i o n f o r t h e
d e p a r t m e n t ?
A . Yes, sir.
Q. For line officers?
A. Yes, sir, for line officers.
Q . A n d w a s t h a t a m m u n i t i o n i n u s e o n O c t o b e r
3 r d , o f 1 9 7 ^ t o y o u r k n o w l e d g e ?
A. * I believe it was.
Q. And what is the basis for your belief?
T h e s e t e s t s w e r e c o n d u c t e d i n ' 7 3 , i f I ' m
n o t m i s t a k e n , J u n e a n d . A u g u s t , a n d i t w a s a d o p t e d
' i m m e d i a t e l y t h e r e a f t e r .
Q . Nov;, Mr. Co 1stta , in the course of
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1 ‘ I
conducting your various studies, did you conduct a
study of the accuracy, penetration and cavitational
effect of the 158 grain luballoy projectile?
A. Yes, sir, we "did.
And that was the one that was used prior
to 1970?
A. Yes,sir.
Q- And did you conduct a series of similar
V
tests on the 110 grain semi-Jacketed hollow-point
Smith & Wesson?
A . Yes, sir, we did.
And that was the one that was in use at the
time that these studies were initiated, is that right?
A- Yes, sir. And another reason, if I might
add, why we conducted the test was due to a glaring
difference in velocity measurement between what the
factor published and what we were actually getting.
Q* All right. So as you said earlier, one
of the things that you did was this instrumental
velocity calibration testing?
A . Yes, sir.
Q- And, of course, you conducted a series of
tests with respect to the ammunition which was
ultimately adopted, v.'hich was a 125 grain seml-Jacketed
hollow-nose Remington, is that right?
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iA . Y s i r . J
Q. Now, do you have any recollection of the
relationship between the instrumental velocities of
the three projectiles that I just discussed, that is,
the Instrumental velocity of the 158 grain as
compared to the Instrumental velocity of the 110
grain as compared to .the velocity of the 125 grain,
do you remember generally?
A . Yes, sir.
Q. The conclusions that you reached based
upon that type of examination in the study?
A, Yes, sir.
Q. Do you recall v/hether the 158 grain had
a lower or higher Instrumental velocity than the
110 grain?
A. Lower. r-
That is the lower, the 158 grain was a
lower projectile?
A . Yes, sir.
Q. • Than'the 110 grain?
A . Yes, sir.
Q. And do you recall whether the velocity of
the 110 grain was higher or lower than the velocity
of the 125 grain?
A. Lower.
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So that th^ 110 had a lower velocity thanQ.
the 125?
A • Yes, sir.
And consequently the 125 grain had the
highest instrumental velocity of the three ammunitions?
A- Of those mentioned, yes, sir.
MR. DAYS; I would like this
document marked for identification
Exhibit number --
THE CLERK: 17 for identification.
(Whereupon, the said document
^erred to above was accordingly
marked trial exhibit 17 for
identification.)
Days) Mr. Coletta,let me show you
Exhibit 17 for identification and ask you whether you
can, whether you recognize that document?
A* Yes, sir, this appears to be the report
that I submitted to the inspector of the training
bureau regarding the test and the request of the
tactical and the equipment board.
Islt, inyour estimation, an accurate
copy of that document?
- ’yas, sir, it seems to be.
*5* All of the pages are there?
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A. It seems be there
MR. DAYS: I would like to Introduce
this. Your Honor.
THE COURT: Let It be introduced
as Exhibit 17.
(Whereupon, the said document
referred to above was accordingly
marked trial exhibit 17 and received
in evidence.)
(By Mr. Days) Directing your attention to
Exhibit 17, Mr. Coletta, does this document reflect
^riything about the exact instrumental velocities of
the three cartridges that we were discussing earlier?
Is there any indication of what you found to be the
Instrumental velocity of the 158 grain luballoy
cartridge?
A. Yes -- no, it is a lead hollow-point —
yes, average velocity was 872 feet per second
Q. 872 feet per second?
* Yes, sir.
Was there any variation in that velocity?
Yes, sir, that is plus or minus, I don't
know exactly what the plus or minus is, I don’t
have it recorded here.
Q- It is not recorded, the plus or minus in
A.
Q.
A.
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i 'i 86.
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the velocity? y
A. Yes, sir, I*m sorry, 27 feet per second
variable, yes. It Is.
Q. Is there any Indication of the instrumental
velocity of the 110 grain seml-Jacketed hollow-point?
A. It should be. I don't know if I included
that, I would have to read it to see.
Yeah.
Q. What does that report indicate?
A. Yes, it is, IjOSO feet per second with a
97 feet per second variable.
Is there any indication of the instrumental
velocity of the 125 grain semi-jacketed hollow-point
Remington?
A. Yes, sir, 1,^25 feet per second with a
variable of 62 feet per second.
Q. 1,^25 feet per second?
A. Yes, sir. . I must point, also, from this
fixed breach weapon, and that is not from a
revolver, and that is a great difference in
measuring velocity.
Q. 1,^25 feet per second plus or minus what?
A . 62 .
Q. Well, you just made the point about the
difference between having the weapon fixed and its
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position in the hands of a person, is that what you
are saying? ^
A. No, sir. I ’m not saying that.
What is the distinction that you just made?
A* When I'm talking about a fixed breach,
I ’m talking about a weapon where the cartridge is
inserted into the chamber in which the barrel is an
extension of one integral part, whereas with the
revolver that is not the case.
Q. You didn’t make that distinction --
THE COURT: I ’m going to Interrupt
you at this point. Gentlemen, we will
be taking a lonirer recess in this case,
and that is why I have tried to go as
long as possible. I have two hearings
that I have scheduled at 1:00 and
as near 1:30 as I can. Those will be short
hearings, but it is necessary that I have
those hearings before I get away from
town I hope this week. One is a school
matter and another is a county court
reapportionment matter, so we will stand
adjourned in this case until 2:15.
MR. BAILEY; Your Honor, I have a
dilemma tomorrow in reference to the late
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* ;i, >1; I'• fLt. Lee's funeral at 2:00. I don’t
know whether that dilemma can be
resolved apparently —
THE COURT: Well, how long do
you gentlemen feel, can you give me
any estimate as to how much more time
is to be involved?
MR. DAYS: Well, we have one
more witness after Captain Coletta
and then there will be a question,
of course, of cross examination of
this witness and the other witness.
THE COURT: What I will plan to
^o, Mr. Bailey, in any event,- I will
plan to start early tomorrow morning
and perhaps go as late as we can to
accommodate that problem and perhaps
to try and avoid it if we can, but
we will stand adjourned not until
2:15 in this matter, and until 1:00
as far as the Court is concerned.
(Lunch recess.)
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1 AFTERr^OON SESSION
August 3, 1976
THE COURT: Gentlemen, I'm sorry
to have delayed you all this long of
time and I apologize that there has
been this delay. Captain Coletta, if
you will resume the stand, please.
You may proceed, Mr. Days.
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90.
JOjfyV A. COLETTA,
resumed the stand and testified further as follows:
DIRECT EXAMINATION
BY MR, DAYS:_______
Q. Mr. Coletta, I believe at the time we
recessed in this case you were discussing the
distinction between instrumental velocity from a
close breached situation as compared to a revolver
situation. Can you explain the nature of the
distinction that you were attempting to draw?
A. Yes, sir. In a revolver there is a gap
between the cylinder and the barrel and powder
gases escapes there. There are not as much pressures
exerted against the bullet.
Q. V/ould the relationship among various
type of projectiles remain pretty much the same,
that, is, when we were, talking about the closed
breach situation I believe you testified that your
examinations found that the 158 grain was slower
than the 110 grain?
A. No difference in relationship, no, sir.
Q. A n d t h e 110 grain w a s s l o w e r t h a n t h e
1 2 5 , a n d s o t h a t r e l a t i o n s h i p r e m a i n s t h e s a m e ?
A. Remains the same.
Q. All right. Mow, does kinetic energy, or
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does velocity have .̂Tj role in terms of the level of
kinetic energy in ballistics?
A. Yes, sir.
Q. Could you explain what that relationship
is?
A. Energy is produced by the mass times the
velocity squared. Now, actually velbcity will
gradually parallel mass energy, where velocity will
double.
Q. Kinetic energy, mass times the velocity
squared over two, is that correct?
A. Over two, that’s correct.
Q. Does the amount of kinetic energy have
anything to do with the cavltational effect that is
caused by a particular type of ammunition?
• A. . Velocity —
Q. No, kinetic energy?
A. Yes. Does velocity have anything to do
with the kinetic energy?
Q. • O.K. Let's try it this way, all things,
being equal, would a pro.iectile of a high velocity
have greater kinetic energy than a projectile of a
lower velocity?
A. Yes.
Q. And if, in fact, there are, there were a
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difference in kinetic^energy, would it be possible to
predict something about the resultant cavitational
Effect, that is, would a projectile that had produced
a higher kinetic energy* have a greater cavitational
effect than a projectile that had produced a higher
kinetic energy have a greater cavitational effect
than a projectile that had a lower kinetic energy?
A. Yes, it would, and I don't know just to
what point, but at a point I would think that the
velocity is increased enough, of course, it would
just merely push it right on through whatever and
cause relatively comparatively speaking --
Q. But up to a point kinetic energy, the
differences in the kinetic energy would result in
difference in cavitational effect, is that right?
A. Yes, sir, I would think so.
' I believe you indicated that you used a
type of clay as a medium to which you fired the
ammunitions that you were testing, is that right?
A . . Yes, sir.
Q. Can you Indicate why clay was used as
opposed to some other type of medium?
A. It is easily available and can mold it
into the required dimensions that we wished to see,
and because of the fact that it would retain the
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1 J 93
flight path of a projectile, therefore, we could
photograph It.
Q. I see. In terms of your study of the
feffects of these various types of ammunition, can
you Indicate what you found with respect to the
158 grain projectile In terms of accuracy, penetration
and cavitation?
A. Accuracy was not as good. Penetration
was excessive and cavitation was not as good.
Q. Directing your attention to Exhibit 17,
does that Indicate specifically what your findings
were In those three categories, considering the I58
grain?
A. Well, here It was stated that a critique
of the Information contained was held at which time
the floor was opened to questions and discussions
and really the conclusion was brought forth during
that period of time.
Q. But does the report seventeen. Exhibit 17
^^^Icate In a quantitative sense what the findings
were, that Is, you talked about accuracy firing into
a piece of paper, what did the test with respect to
the 158 grain show in terms of the pattern on the
piece of paper?
A. It held approximately one and a half Inch
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group as far as accuracy.
Q. What does that mean, you have a radius more
or less of one and a half inches?
A. You measure t'he extreme holes from centers
to center.
Q. And, so, in firing that particular
projectile several times you came up with a spread
of one and a half Inches?
A. Yes, sir, generally it was a five shot
group, that was the norm that we used.
Q. I see. Now, with respect to the penetration
test, using the boards, what was your quantitative
finding for the 158 grain bullet? How many boards
did it go through?
A. It penetrated six and dented the seventh
three-quarters of an inch pine boards.
Q. Now, directing your attention to your
findings on the 110 grain bullet, what was the
accuracy of that particular projectile?
A. • One inch group-
Q. So the spread in that case was one inch
from hole to hole, is that right?
A. Yes,sir. "
What about penetration in terms of the
board?
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A.
six.
Penetratiori^throuKh five, indented number
Q. So it went completely through five and
dented a sixth board? -
A. Yes, sir.
• Returning briefly to the 158 grain, was
there any finding about the cavitation created by
that particular projectile?
A. The bullet penetrated about three Inches
before causing any cavity, and then it began
wandering through the clay, changing directions
and traveling out through the play to the, and to
the range floor.
Q. So it went right through the block
ultimately?
A. Ultimately, yes.
Q. All right. Did you determine anything
about cavltatlonal effect of the 110 grain bullet?
A. Yes, sir. It penetrated eight inches,
expanded, the vertical measurement is approximately,
leaving approximately a four inch cavity.
Evidently the energy was released very early due
to the wide portion of the cavitation at the point
of entry.
Q. All right. Now, let me get something clear
52G
I
J i; I
9b .
n
O
■ o
o
1
2
3
4
5
6
7
8
9
10
n
12
13
14
15
16
17
18
19
20
21
22
23
24
25
in terms of a comparl^'on between a 158 and a 110.
I believe you said In the cavitation of the 158 it
went in for three inches and then created some type
of cavity?
A, A small type of cavity, yes, sir.
Q. And the 110 went in for nine inches and
then created a cavity?
ti!..A . No, sir.
Q. All right. Would you help me out with
that.
A. It created the cavity upon entering at
the- point of entry, the cavity was approximately
four inches and penetrated on nine inches into the
clay .
A n d w i t h r e s p e c t t o t h e 1 2 5 g r a i n p r o j e c t i l e
w h a t w a s t h e a c c u r a c y o n t h a t ?
A. A five-eighth inch group.
Q* As compared to the one inch under the 110
grain and a one and a half inch under the 158?
A . , Yes, sir.
Q. S o w h a t a b o u t p e n e t r a t i o n o f t h e 1 2 5 g r a i n ?
A. T h r o u g h s e v e n and i n d e n t e d t h e e i g h t h
t h r e e - q u a r t e r o f a n i n c h p i n e b o a r d .
Q. And what about the cavitatlonal effect?
A . Four and a half Inch cavity in the clay and
52.
421)
0-SB?'
o
r
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I 1
;i/e
9 7 .
penetration of thirteen inches.
Q . So it went thirteen Inches as compared to
nine Inches of the 110, Is that right?
A . Yes, sir.
MR. DAYS: Your Honor, I would
like to ask the witness, if I could,
to show some slides of these tests
of the three projectiles at this
point, if the Court wouldn't have
any objection.
THE COURT; All right, sir,
are you prepared to do that now?
THE WITNESS: Yes, sir. Your
Honor, I can do that, plug it right
up .
Q. (By Mr. Days) Mr. Coletta, I would
like for you to demonstrate the slides. Well,
excuse me, perhaps I ought to preface this by
asking you whether slides were made of the studies
that you made with respect to accuracy, penetration
and cavitation?
A . Yes, sir.
Q. And do you have those present here in
the courtroom?
A . Y e s , s i r .
^.9 7 5 2 o
* \ .* j/’
■ f V ^ T ■̂-'' *-.. • i--. ■■ • •
2
■;., 3
5
6
' • 7
1
- N . •>• ,:v
n
;. •• ,v>v, •
- ■ '" ‘ - \ .*»v. ”
\/ • ■ ■•
: vl̂ i i w8 ri i tfc ’A «*-«« * /I. ■■*i I Mi''9
10
• • /:ni>
*s
/ : 12
13
14
15
' i 16
:.-'v'i7
; :̂ ,18
19
, . 20
:- 21
22
,: r' 23
' 24
25
I w o u ld ^ l lk e t o a sk y o u . I f you w o u ld ,
t o s c r e e n t h e s l i d e s " I n d i c a t i n g t h e f i n d i n g s on
a c c u r a c y and p e n e t r a t i o n , and ’ c a v i t a t i o n o f .'the '". " ;.f
158 g r a i n f i r s t / ' i f ’y ou * 'cou ld ? ' ' f
' •■ ' ■ ■ ■■•'■:'i - - 0 * ; ; ' -V. r̂ ' -V
A. I w o u ld have' t o , e x cu se me. T h i s i s t h e
e n t r a n c e i n t o th e c la y^ W in c h e s t e r and Hunt 158
g r a i n . l e a d l u b a l l o y p r o j e c t l i e . f.*'■it.?
"number . i s t h a t ? .';
T h i s i s s l i d e num ber l l̂ . ■ ' '• -Vii’" 'a :
Q. All right. . •'■
■ O ' ,. ..V '. •;•■ *-'*.■ •.-■ ■*5v-> .. ' ,Mr/-.t . ■ J >■
r” A. , ‘ .T h is i s the , p e n e t r a t i o n , we; .may M a v e .''','M
, ' ' '■ '■ ' ■> ■ ■' M‘■ * ■ -,' ■ '•
damaged th e clay|;ia l i t t l e b i t i n c u t t i n g . ' i t M n ' two
C u t t i n g i t i n h a l f , b u t p r i m a r i l y t h i s shows th e
t r a c k s t h a t t h e p r o j e c t i l e f o l l o w e d a ro u n d th e
e x h i b i t t h r o u g h 18 In c h e s o f c l a y a n d - lo d g e d down-
.. ra n g e , , ■ /̂v ..
Q«. • ■- And t h a t , is;-lnumber ^15?
M * ;■ . That., i s : numb'er 15
And number ' l6 i s t h e a c c u r a c y t e s t ’ w h ic h '
shows “th e in c h and a " h a l f g r o u p , t h a t i s t h e 158
’•y M ■..
g r a i n . ■ V ' . ' ‘ I
Q. Y e s , a l l r i ' g h t . W ould you. show th e ,
s l i d e s t h a t d e m o n s t ra te
. ; V- • •; ■
r e s p e c t t o th e '110 g r a in ?
A. 110, this is slide number 2, it shows the
•>-s
e m o n s t r a te ■ y o u r f i n d i n g s w i t h ' ' ’
(=>110 crr>a i n"? ■-i’ '• V ' '■ ■'
. ; r-, > • • .»
'■'In*'
■ ̂ 4' .*•.•■?■.* •' i
' :■■■••» i '■ 5
'' •’ i cr i i-iSc ^ J
f ! !
./■̂ N 10
, ■■ : 11
-,12
13
14
\ 15
■ - . 16*1 V • * '•* ' i'
17
, ;̂. ;*̂ 18
19
■ r ̂
; ' 21
̂ ' 22
-,'7 ■%;:.‘;;23
'■' *'.»■■' ‘ •'Vj;
’■" ■" • > 24
25a
99.
e n t r y . S l i d e n u m b e r ^ s h o w s t h e c a v i t a t i o n , p e n e t r a
t i o n , a n d s l i d e n u m b e r 4 s h o w s t h e a c c u r a c y .
r, ' <••■ 4 ■• ^
• ' A l l ' v . r i g h t . ''-..Would . y o u >’s h o w . - t h e s l i d e s t h a t
" r e f l e c t y o u r V f i n d i n g s ' a n t h e 1 2 5 g r a i n ^ b u l l e t ?-i--'::v-■ ; :! a c f u : - ; ; . ..
A . •- S l i d e n u m b e r 5 s h o w s t h e e n t r y , s l i d e ' ■ ‘ ^
n u m b e r 6 s h o w s t h e c a v i t a t i o n a n d p e n e t r a t i o n , a n d
, s 1 i d e-'- n u mb e r shows
^ » n •' ̂ UVi 4.. J T 4 ̂ ' 4 « A
t h e a c c u r a c y . -.•.
'aV'
Q. I
A..\
' W h a t " ^ s l i d e i s t h a t 9 T
■ «.• ̂ v̂v;.
'* '-’t k'̂'V-c ., ^
S i r ?
What slide was that?
i iv ."■;'rf ■c!(>''5 , 6 a n d 7 . •; ■
̂’ MR. DA.YS: Y o u r H o n o r , 'I . ' w o u l d l i k e
‘.-I..
»/. ’J <
t o m o v e t o e n t e r s l i d e s l 4 , 1 5 , l 6 ,
2 , 3 , 4 a n d 5 , 6 a n d 7 i n t o e v i d e n c e .0 ■
. • T H E COURT: W i t h o u t o b j e c t i o n ..let '■ • c; : C i ■
t h e m b e i n t r o d u c e d . ' 'V
.Jv. M R , : K L E I N : Y o u r H o n o rjTVv. o r , 1 ■' w o u 1 d - ■; ■ f '■ • •-V
. I f “ ■
o b j e c t a s t o t h e r e l e v a n c y . -^:V.I; h a v e . - a n '̂ ̂V-'c
i d e a , b u t I ’m n o t q u i t e s u r e " w h a t - t h e
b a s i s o f t h e ' . i n t r o d u c t i o n o f . - t h e s e■ - iaio • ; ■' ■ .
s l i d e s .i s , a n d I q u e s t i o n w h e t h e r t h e y ' ^
a r e m a t e r i a l o r r e l e v a n t t o t h i s '■ •
h e a r i n g . • a;. -. :■ :raip.̂ ,-
, - C v t h E; c o u r t : Mr .'V'Days .; v v;■ , ̂ -T2.y ■ ■•;... -.c ■ ,, ■■ -'f'-' ’•■
MR. DAYS: Your Honor, as our
53G .
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2
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ip.i :-c:: t
v̂- t . i-. '■
■- ** ; ...9
■ *>* '
10-.v-.-t .
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r
13
• •*•.’■* ■ r; • ■ '*1̂'
■' '
•• • r.--. > ..'' ■’"1*
0'̂.*.* y 'j • ■
;r*- 19
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'V'
: • 21
. 22O ’- .s- *!-'îV -. ‘*- 23r : • ■'/.
f . 24
25
- ;• I .•''•• \
I
pretrial svAmission Indicates, one
of the asse!rtlons that we are making.
100
■ ■X* -
,.' . i • ;ls that ;the''Memphls. Police Department
' haS:;provlded-it s of fleers with ' v
ammunltlon'^'of greater and greater ■ ’
capacity to Injure citizens, and that
̂ i j , . - ■ ■ > . . ..
•''vH.'.:!? vf,.* ■•.;•• .un̂ der circumstances where a personals •. - ; ■ ■ ■ ... t ' •’ r"- v
‘V Tunarmed and ̂ fleeingvfrom the commission -.'
of a'felony, the extent to which this' . . . .
increase in .-fire power, if you will,
represents-'cruel and unusual punishment .
■'or excess'^ force is an issue that only
this court can determine. We assert
that in a context where the police
department'-^is essentially saying to . .
the "Off leers', we are giving you.? more
V '•
and:more powerful ammunltlon 'without.r ^ ’i-,-
. 'any i effort.to’ also indicate ,, the 'need..>-;. ■ . ' : ' '.̂V.
to exhaust'-alternatives before using •
I .ft ' tammunition-of this type of wounding .v,
capacity. or'‘damaglng capacity, in j u r l n g f
. capacity,"creates a situation where the ■’
death of Eugene Garner or • perhaps i other . i--
■people in similar . circumstances is > ■'''vi/r:’,
predictable and that is essentially
<3 5 ( 3
'̂y'\.
' i
•V*. y.-.
/'■'v.’.'rb-v. ‘ "
' :'i•■ ,,.' ■■ .■ w ■*'— '■ 'ri "q ■;X‘ >■» • '•% ̂ O
- f*- / % •'"
Q ■ 10
11
12
13
14
v-rv 'j ; 15
16
t *•: :r'
! 'f .
t ,■■{ k . - . 17
' -^-'v ;■ ■ '. 18
19
20
21
22
23
24
25
.v;;,, ,,‘**-t '■-*̂vc V*A' ’ - ‘
lor
why the, tj;e reason why I have gone Into
this area of ballistics.
\ ̂ - J • X
: Is there any other
.case ..,that,, says that the police are.'to^v
be directed-, by the courts as to the
type.of ammunition that they use,
iWhether pi^^not it happens.dn this/
particular.‘dnstance ■ that 'w e ■’are ., -v‘»
talking about a fleeing felon who
was,unarmed, but suppose it is a
fleeing felon with a shot gun.-that may _ - W
get a, .second shot? - I. would like to-^H-^Mt ->̂-’i
know what the authority is for this
court to be. called upon by injunctive
or other authority to direct a police v‘y
d.epartmen̂ .̂v a.s -to what kind of! ammunition/'--.^ ..
that ̂ t̂ Oey;; jASe? I know there . is , alway is
,new;-ground:helng plowed, and if this';-./ ";■ 'ŷ.
Court hoesnjit do it, maybe another one
Will, but' ,lim not familiar with any , - .
other„law,.tbat deals with this'-subj ect.
.̂ DAYS : We are not' asking for.-'
inj unctlyo-relief iri- this . case. <
are simply ̂ d^dicatlng that . in a situation'!/^
where police departments provide their
rr o0 o ̂ *
>y.y
K*.'- •
y.,y\ / •
'vij j-. **
V •'V
}
•Sv
:■■' ?r-r:-'-5-
'"':•; -■ * '--<■»»* ■v.?**- -.► ’
' ■ , V v'...':. ■̂- 8
• ‘ '*‘*2>.V\
• :<. * K. : ■V-J-'r-lV*.. . .. • * •' h •
n
■;.>
9
10
.■' n
12
13
14
;: 15
' ' 16
•V- > .... • -....-
•ir. ' .» -•.•i' ~
' •• • •;
,̂V . : , . V>̂̂v̂̂v:'■;■ ■■ .: i
I*.-.;' -.V 'T'. ‘
18
19
20
21
22
24
25
• j . ; \ •; .•
n ^
n-fv?'*-̂ *. t: .
r./ '.j <
. i' ' v̂, >'. -v/ - h V
■"r 102
■ .'i
officers w ^ h certain types of
ammunition,': then those departments
should-pay-ithe consequences when. "i-;-;.
__in jury:-results beyond the, levels of
■ -what- we- think would be acceptable
standards. I
► A
w , ̂"l>:jLet;, m-6i--deposit̂ for thecourt *ss
nr'’ ' ' ': ■ ■■ '' consideration ;-a situation . where the '— '
Memphis Police Department decided'
. >
that it was going to supply its
police officers with bazookas ., ; : ' '';- V- , ■: "‘v'- S-; , '■ ■ '■ ■' ■■'■"■' ■''
One would,': I . suppose ,. conclude' that,
a bazooka .would be very effective
a*
to stop one who was trying to
shoot ■ the.-o-fficer and certalnly.it,:' ;v:< - V;'
■■ 'would.' stop 'a''person ■ who was ■ trying,„,_.: .. . • : '■ r; ;ns'̂ y-r,:. ' ■ . , ■ . ' 7 •i'-: ' to .-flee .’fr.om ..the commission ,of' a ■; >':;•;•■ ’ r-'’,.
' f elony ..'r-Jir-submlt .to the court in .our' 7'• •■/ •' v'»' '• :•••• . v‘: •■. ' ■ ,.'S
law thereols a standard 9f expectation :,
of" civilized conduct by all governmental. ■ ,
offloials';under our constitution, and ;',tv
one of the'‘'-questlons before this court
is whetheriJthe process that this ■r.ury.r .r'
-*■• • ,/v . ' • S4- •' ,'V. k . v’'- ‘ . »■- ̂ V’tV: . . ■ "' V ,■• -.i
record -reflects that the Memphis Police '. V
Department"has gone through, which is
43ootw. 533n
% . . «.#v
•_ ,;r .• , J ..
' * ’• 'i* V.*
•. ». ‘ .-A.'
-■:v; V ? I, n I rv
■ f̂i. V ► •
4.r i;
5
6
7
8
10
W-'.:
13
14
.15
16
' 17
^ 19
>/aw.-. * ■
... ' 22
=î:V-.;. • _ , ;
; 23
■'. '24
25
1 0 3
one that sjfuares with the expectation
that I have Just made reference to,
' 'v. ,,..sq.-, It ■> is an̂.̂ issue before ..this ’ court■»/0' i 1/ .<,'<:-■•<■. -■■ f 7-.J; /f ii'' = - ■ ■■•■ ■ •,.■ : ̂ _7,: • :V. c'H.--
v-'i 5 i ■ \ĵ Ahci\‘while'fcthe specific issue"has :'hot ,-:!'̂ ?̂''*' *■ ■ ' * '• * *V--'
been resolved to my knowledge, there
certainly is an adequate body of .
7 law\that ;.de-vises the standard, to
. 'v ,' ‘ f ̂ , ■•;- I ’'*- .y:'
V/determlne...i.what constitutes excessive.j
force, what constitutes,if you will,
the use of>-certaln types of force,
. thej.use of rcertain types of punishing
implementspthat go beyond the standards..';xa,;
that a country, such as ours, has a
right to expect.
,•• •. ‘■‘Y THE COURT r I- take it then that" 'Y.-'--■ V ’Y'-.
, it_: is your ̂ theory .that if-the. cit jrV ' . ■ Y : Y ' ' Y - ' ' •■■ ■ '' Y ; Y■ ' ' '■ • ' ’'Vi,-’•-■ielectsYto use the; powerful ammunition,;:YŶ Y'iY:-Y'Y
‘ ' ' ' . ' , •■ 1 •'?.y ' * *■ W ' 7 - • ■ r'-V.V.
'•$» • V''’. thatYthatb.should affect the law and \the .Y Y
exercise of.reasonable Judgment;on the
part .of the officers as to whether he
is going., tO'; use it or not or he is. going '•
to use it as absolutely the last ‘.. ■ ■ ■ ' ' . ■• Y YY' ■ .Y Y
' resort after‘the other man has . fired: v-.-s : ............. .
■ ' it at him?lfY ■’ ■ ■' ''"Y.fY ’ •/ irYY.'YYl̂ Y ; Y -Y:
• 7 : -7 ■ ■ V- ■■' S i- •>■
MR. DAYS: I think that is
A 3 3
•V.;4
. . . t .
, . A,; • . v v :.
‘ < ■■ vie, ■
-'■■%';.ku
■" 4
■■' ' ‘ i I'J ' 5
i ” -• .• ‘ 6
̂'K !
1 ••».. . >■ V' A'i ."". ■ ■’ . .' ■
o
i .
* . V' '■ ' *
• ,•,• ■''.V/
■'I- x-:<-
;■■'■'■'.-v.Vr.
% -̂' : ̂■- 'r -.
' V ^
-^■V:
Vi-B
9
10
•. 'll
. V
- 12
13
14
,;vJ5
A 16.
17
V̂ 18
19
'■■20
21
•= 22
23;
24
25
; . - .
■/
essentiallj;;^ our argument for this
purpose. The law has been In this
/ j ' V ' I V ' - • V,. ' V■, -i \f -, V"- J • ■' caseAfor ' hundreds of years . that in ̂s> -.■■ - ' - - ■,: ■ V . ;■
r;;:Z) ;<?ontext^of;- the commlsslon’̂ of j'''■ --A'
■; ’ ; \ ■ i • S' ■ ■ ■ ■ . ■, •' ■
certain types of felonies police" ' ;
officers may resort to lethal force
for.-'the;.purpose of apprehending
suspects , •: apprehending those fleeing y-A A A
' ' ’ ■ ' ^ * -S’. . * » * '■ *
felons. It ̂ seems to me that o ne of " s'’
the Issues before this court is
the question* of how. one goeŝ .'-about ' .
defining apprehension in our, modern ,
society. Does apprehension, in fact,
mean that a department, a police
1 0 4 ;f
■-yy/r
.■; C.-
department ̂ can use a .Howitzer andy^ . "
use a bazooka. The reason we are ’.u
.V
-A-AA-lv'Y ■ i- ■- ••,
■■\o, .
1 ̂?•> t
■ya bazooka''against an- unarmed .fleelngS;-
-felon ;■ is ;to ' apprehend that/fleeing
' , ■ ' ' ' f' *' * ■ ’felon? I would submit under those
circumstances the word apprehension
is a violation of the English language.■ .tA-* ■ . -
.It doesn ' t''"mean apprehension. It •
means that-.the, likelihood of. a death • A
■ y,.; ■ ,; ■ y ••y-r-, '■ y. y:'-
or'’serlous'injury of that fleeing
person is 'do great that one can no
- . / A . . 4 3 4 . . . . . .
V , V .
Ar ‘ -
A' ■;
A';-A.
r -1.<.V
y-. ..... ..y
2
, •• . ) r., 1 .zr;
•.- '■- 4
i'- , 1/ 5
6
■ s »' .•
7
i • * «C ••• .
<
-v-‘ . . 8.
’
■ 9
• . ‘
r '■
10
' 'V' , • ' ̂
»*. *r ̂ ...
• ; ' v ' ■<'' 11
̂iV ' >- * '
•■V 12
13
O - ,
14
, . ■ ,7 ' : ; ; 15
' ' • i ' i > * “ - J
■i V '
X ■ • V • • •■
'■ ■
. ' ■ r •
V •. ,v - . .
■ ; 18 • - • ̂ i N
19
•'*> 'r*'
7<• V.f*' 'X ' • •,
• *.^V' •- • ' X'v "' 21
..■22
i' .
*- ' v̂■ 23
,s t .
’ . 24
© ; ' 7 25
/• i'-'V . •-
■ y X v 'X ’ .
; ‘'rt '•.*».
105 >;■
longer loo]<v to the expectation that
this fleeing felon will be arrested
-̂’7̂ - ' ■ ^and‘Tcharge,d7,a.nd brought ■ to vVustice"
fji'l;; 1 f sullty ̂ ;«nvlcted
and if conylcted, sentenced to . ; • ' ■
prison and required to serve his '•
sentence .,: Now, this is , a\very';
...;>•- ■ ;■ rough ■ area..in wich we 'are- dealing. •>>
_ * . • ' ' ' ' ■ . ’ ” * •'..*• ■'' '■'NT'
We are completely aware of that, ■■- •
Your Honor, but we suggested to the
■ >'V . • ■ " ■ ̂ ̂ ®urt ;that .tihe line of inquiry ' that^'^l’̂'"' ;
■ ■■-. ...;■■ . • .• '.-v ■ ‘ ■ ■-• •:'•■. ‘r .
, .,••,•• Is .being: engaged in now and the ' ' . Ti-‘
very gravlment of this suit is one
-1 • i V-. . .
that cannot^^be Ignored by a society
y that illves^ according to a constitution ' ■-1'
.has , within its content principles I -.••. •’*’ ' #*' o’'̂ '• ■ ' . . j -r, ■ ,*V ̂ ■ . ’ '.t '.•'•* • ' 1 * ' ••t »' ■.*•
'■ ■ ■ -r'■ • .9f due process ,and fairness and a v'■ ' >'r*'' v
■ rej ection , o.f what are referred to/as'"“̂?-V' • VC • ->» « ' t- • ■ •• ,■•■> .V. . - / ■ " ' * ■ ■ ' '
■; ^ ®ruel and" unusual means of punishmentT.'7
• -THE. COURT: Well, I'm going t o I'i'V-
* ■ ■ ' , ' .. .V i' r-' ■ -jiv-• : oVorrul^ ̂ th6 ob j 6c11 on. I- retaln '
some, reservations about this area as ' ■
. being-an-"a,pproprlate area for the "
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/■■ -WV:- =■' •'Court:; 'buf '.pertainly the plaintiff' ■ .* k* - ̂ ̂ ..■ ■■•J • ' ■ '■ I-;-,'
is entitled, .to present all of the
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proof- and evidence in support of the
plaintiff's theory that the defendant
' ■ ' properly’ or Unreasonably and^nl.N^'^iJ^fc-v: ̂
violation ô f the deceased ' s rights ,
so I'm going to overrule the
̂J. ‘ ̂̂ .■«►• * ̂
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obj .would , want plaint if
Counsel-to clarify with the- witness ,
if we are going into this area, ’ '
to give me about a three statement
summarization; of what.it is, what'“the %
̂ V. 'i- * -' f 'difference i.s, between the various
types of ammunition that were con-
sldered and the ammunition that was
used, _̂the jnatter of velocity and all . ,■■
of -that,' I get some Import about it V->i
• to' know in simple
terms what does one do in respect to
what another one does not do. ■ '
That is what I was “ a .MR. DAYS:
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turning to, .Your Honor, and without ,'-v ', ^
in any way showing disrespect for '
t ■ • * *;• ■ *«the cqurt,',w,e.-.are completely aware-.
the dlfficulj;j^; of the Issues that .'are''.. ^
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presented in this case and would be ■ '
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surprised ff any reasonable court
didn’t have difficulties in
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agonizing.- over what ' should"'be • the
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appropriate standard to resolve the
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contentions that we are making.
. (By ,Mr. Days) Mr. Coletta, we. have
' . - . ’■ ‘ ' .•'talked about the studies that you have"done/'and we- . » ' V
have talked about the findings that you made with
respect to accuracy and penetration and cavitation
'-■ ' -'ax;!: •
of three proj ectiles . ̂ N o w , what I , want 'to know is' — -
' ,v' "it is correct, is it not, that your responsibility' '
in conducting this study v/as to come up with
ammunition that would be acceptable to the police
officers in the Memphis Police Department, is that;,;'
. right? •. ■ ^
: ■- ’A. ■ ' . ■ For--.their own'safety and welfare anda'
for the safety,and welfare of the p u b l i c y e s ,'sir/, “
Q. All right. Now, looking at these three. .•/
cartridges, what would you say was the difference ?;/
< >. :.-V: •V’
in the significance of accuracy that you discussed'.
.• ■' - /a/r
between one and a half inches in the 158 and five-
, • eighths of an ̂ inch, ■ I* believe, in .the 1,2 5.,/what isy';:t'H-V‘
' . ■ ' . 'iTnc. ' ^ ' !/■/
the practical difference? How does that.
differential go toward the question of which type
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of projectile would fcî best for police officers in '
Memphis? . ■ ’ ̂ ;;
Well, 'Of course, when we are 'talking ...about
.'. these particular rounds- we are talking about t.handgun
ammunition. Now, you.can't compare it to the '
bazookas or anything-else or rifles because that’s
on the upper limit of.V.the spectrum,''that^is,;'on the
high'.velocitya These ̂ 'are lower velocity, ' they'’.'fare-'̂ ’' ^
on the lower limit of'the spectrum and fired from
the hand, a weapon contained in the hand. -Any degree
of accuracy that is attainable by one’up"here because■ ■ ■ ■■■ ••i: • ■ : ■ ■:'; ' _r..' .--v',''
of.the suppor t that r. If'has, because of the K.'̂ v
configuration of the gun is not applicable . '
necessarily to the one here where the support is , ■ ■■
the arm-.- Therefore, ̂ .the one with the supportl-with V̂̂ ^̂
the arm we feel ,should" be out of a rest at least■■ v̂- i.', ; ■ ‘is-!*. >
' be . contained at. 25 yards, at least have , a round .a’ .
half to a one inch group, anything more;than that ’
we feel that an officer would not feel competent'^in
being .able to hit what- he shoots at because "of the ' ^
. ' ' ■ ' 'T ’iXVi-►'fact that I'm sure that once this particular;.'
ammunition is Issued that the results either are
/made known . to.l.everybody, and ...that the ̂ report would/
get out, well j • such ; and such is inaccurate . ./I don’:.t.̂/;;v
know what analogy you'can make between shooting a
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p r o j e c t i l e o r c a r t r i d g e o r w h a t e v e r , s h o o t i n g i t f r o m
a b e n c h r e s t - , f r o m a s t r a p p e d d o w n d e v i c e a n d t h e n
m a k i n g t h a t a n a l o g y t o a m a n ’s a r m . T h e r e i s n o ̂
a n a l o g y . T h i s ' i s . ' m e r e l y t o i l l u s t r a t e , t h e ' . d i f f e r e n c e / *
b e t w e e n t h e r o u n d s t o s h o w t h e p r o p e r t i e s o f ' o n e . :
P a r t i c u l a r r o u n d v e r s u s t h e o t h e r p a r t i c u l a r r o u n d .
■ ■ ■ !| ' ■ - v ■ ■ ,
Q . W e l l , - b u t y o u w e r e c o n c e r n e d a b o u t • rr.--
i m p r o y i n g i . t h e ' a b i l i t y ^ o f t h e p o l i c e o f f i c e r s : t o
b e i n g a c c u r a t e , w e r e n ’t y o u ? ^ \
A . A b s o l u t e l y , w e a r e c o n s t a n t l y c o n c e r n e d
' • ’ 1 iw
w i t h . t h a t . • - • : ; ■ - ' . . :
n ■ ' ■ -
.. W e l l , m y q u e s t i o n a g a i n i s w h a t did.;these,.;;.;,
s t u d i e s t e l l y o u a b o u t t h e l i k e l i h o o d t h a t a M e m p h i s
P o l i c e O f f i c e r , s h o o t i n g .at w h a t y o u r e f e r r e d t o a s
t h e c e n t e r m a s s , i s g o i n g t o b e m o r e a c c u r a t e u s i n g ,
t h e 158 t h a n u s i n g t h e 1 2 5 ? .
A.'- ■■ ; , I w i l l s a y ' t h l s , t h a t I / d o n ’t ' . k n o w w h e ther..,:-’
i t h a s a n y b e a r i n g a t a l l o n t h e o f f i c e r ’s o p i n i o n
r- - * : ‘ .. ' ;
o r o n t h e o f f i c e r ’ s a b i l i t y , t o o , b e c a u s e . l t i s n o t- n I.;- ■ ■, ^ ■ ■
c o n t i n g e n t u p o n a m m u n i t i o n . W h e n i t i s t h a t c l o s e
i t i s c o n t i n g e n t u p o n h i s t r a i n i n g a n d h i s a b i l i t y . "i'-r. . ;.;inc ■■
Q . A l l r i g h t . L e t ' s g e t t o t h e a r e a o f "
p e n e t r a t i o n . . - W h a t p r a c t i c a l s i g n i f i c a n c e ; i s t h e r e / \-
b e t w e e n > t h e fact'-'-that t h e 1 5 3 ' p e n e t r a t e d . - ’, s l x /.vi/
' ■ ■ ■ ' ̂ -Ol-.r ' . 1 ' '■[' -.''i'i
b o a r d s a n d d e n t e d t h e ' s e v e n t h a s o p p o s e d t o t h e 1 2 5 ,
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I would hope so.
But we know.;from past .experiences' that
5sue reacts, differently and I ’m sure .that
which penetrated sevejd and dented eight boards?
A. All right. We are firing into an inert
.object and firing info living'tissue, if such ■'a-'■ - ■ ■ - . ' ■ v y ^ ■ - ■- K. :'■ ■
■ .thing could be- done , 'which , of ...course ,.. it is -out
of-the question to even think about.
Q.
A,'
living tissue.reacts,differently
Dr. Francisco can clarify really how, I really can’t.
I ’m no expert in that area, but I do know that it
reacts differently and I do,know this from case.
experience that . the 158 grain' has penetrated,’;many ,• '>;y
many times. I would have a book which will document
specific cases that throughout the country that the
158 grain has . penetrated, has not, stopped or .
neutralized the,: adversary , and. therefore , .in .many-v
instances has resulted, in death to police officers,
and in Other^instances, has resulted ,in'ricochets • ,
and resulted in the shots hitting,Innocent people.
* * '-‘f*'Q* All right. But does your study indicate ..
, Z-. ■ . 7' :' * -
that, can you .determine from your results that.a
158 penetrates only six-boards and a 125 penetrates
seven, and yet ,'.you:'would conclude that'the I58 -̂-A'y rV'.C.
probably penetrates.more than a 125, does' that"follow <•
’ 110 ■
from your results?
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A. Yes, sir, ^ does, it sure does, because
of the cavltatlonal effect and because of the fact —
• Q., :7'; • Wait , i 'waitif I may-— :
A . . ,. • ‘ Well,’ you asked me, I was .trying to ■"'■'-■
̂ answer, ̂ /'
All right. Continue your answer.
A. , I think a significant difference in; '
■ ■ ■ ■ '' .‘i - vV,.
penetration in pine, boards and penetration in, :,VV "V
clay, I think there is a significant difference
between the two.
Q. All right. ., I was going to , get• to that, •. ■• •‘ —n.'- , • . ■ ...s' ., . '
■ M r .. Coletta, but I*m trying to get some sense of. ■ • Vi.U , - - ̂.
what particular types of tests. You did reflect
-• ^
about the ability of these various types of ̂I
ammunitions to incre.ase the ability of Memphis .
^°lice officers to protect themselves and to.-,.;
V •--- l - . ' . • . . / . i w i * 1/* •'i*' ■ y .
■ . ' protect the general .public?
• "A..,.:;.
■ V.-. ■
■Q.
Yes, : sir. 'V •. .jIj ■ ■.; ̂ r
So I refer once again to the test -
throu^gh the pine board and I ask you what does
■•.. that ref lect' in ■ practical terms and in terms;'of
. the objective of your study in the first place? '
-; A.;. . All r i g h t - s i r . In the ' first place it '
r,;‘. • ■ ’V . . / . • . . J-
would tell, us and sgiye us the capability of: being, V,;.;. • ' » ti ̂ ‘ . . . • ■ '■f'! '.M • *.. V- ‘ »
able to project to some extent that it will Indeed
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penetrate this much irjiiterial and that the background
should be a factor when a police officer shoots his
weapon. ,, If there is â .'frame house behind him, *f or-l-r ¥
.'..example. If he.’.s notconfident in . his- ability-’of V\:
being able to hit what he's shooting at, then he
should know what the effect of a missed shot would
be. . .• ** •• -■• *■• ■'T* •V. ‘ >1̂, ,
v;,Q.;--. ' All; ..right. •'• Go right •, ahead I !m'sorry
A. I'm also aware of tests that have been
conducted through telephone books, through car doors,
' through glass .'V.: I ■.think -that possibly .the best ’answer li
-'- is . to the fact ; to build a data bank .where all ; of,; J .• •■‘•s' '
the information can be gathered and once all of
Information is gathered to make conclusions
■from it. Thisis. a field that requires really.
..- sophisticated .equipment to test ammunition and; test .
it '-.properly .■ don't. have that .kind of-'■technology'•■4;̂
within the Memphis •.■Police Department . .: We'have to T*:
accept manufacturer ' s . statement s about their. :/,'-
; ammunition. In many cases we found, .them wrong, so . -• ,■.
" in some areas we ’have,;.tested what we- could ourselves,
and these particular tests are not the sole ., D
- deciding authority.';'of,;why we decided*to !adopt • this
ammunition.'^' It’’is''a factor. -.. '"•■•v-.-:' - ... '.c.» X I
"Q. Well, did you indicate in any way to your -
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determine' whf»fĥ >,
«.a* .„.3 or .
— - ™ e S.aareo ,ou „3o..oa .o, an.
names of those studies and what th
a • they produced?
Yes, sir.
*' '■" 1" 30me Place?
I have on many o c p a q -!̂
as a mat. ' ■ °” ^ = l°ns dating discussionas a matter of fact, here It „
,,, ® aald Where we
discussed and whatever 1 disc
that ’ = the findingst/ilSt WQ founH f* ■«“nd studies that we have
d" questionnaires n t d°nduoted
' not studies actually, but
questionnaires from other agencies hgencles, what they have
done and why and whatever.
Q
All right. Let’s get to th
effect M cavltatlonal
d=l- Now. the oavltatlonal effect as t
by your studies sh ,
’ "dnb In for three
Inches and wandered arenaaround and fell out at some
p o i n t ?
'̂ es, s i r .
I'be 110 want ^
cavitatl ^cavitation and the 125 „ade a f
cavitat, ^ dnchavltatlon. All rleht m
ail Of th t disnlficance does
^ that have to do with in -t- ■ f
oblecti ̂ again, the' jobjectives of making certain .5 eitaln that police officers
are protected and they can nn ^• protect citizens?
t) 4
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1 A* We feel tha^ a orojectlle that will strike
an object, a human being, whatever, strike a target
and particularly if it is a human being, because that
is-what we are talking about here today, and if it
is, we want one, that number one, the officer would
be justified, of course, and make certain that the
law is adhered to. And, secondly, that the
projectile will stop or neutralize that person
from any aggressive action or from continuing a
felonious act that he may be engaged without, one,
endangering the officer, and, secondly, without
any danger to Innocent people by over penetration,
by ricochet and even considering the officer's
ability by misses.
But you used clay, did you not, to
determine cavitation?
A. ■ That is the only medium that I had and
there is no relationship of clay to living tissue.
There is no relationship at all, that does not have
*
the resiliency, does not have the elasticity.
There is no relation. All I merely did there was
to demonstrate the difference of one type of
projectile to another type of projectile. The
context here was that the union wanted to go to a
^1 magnum. I did not shov; those slides. They would
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1 just be just as drams^lc as some of the others in
comparing it to the 158 grain. It would be just as
dramatic in comparing't h e ^ Magnum to the 125 grain.
Q* Did you engage --
riot finished yet, Mr. Days.
Or I could fire the, a 3.06 into clay and literally,
'̂ hat you mights call, and what a lot of people might
call, would blow it apart. That is not true. The
projectile does not explode. It has to be ignited
or detonated to explode. This is merely one factor,
and all I»m trying to do with the clay is to
demonstrate the difference between one type with
^riQther type.
you engage in a useless experiment
in the terms of firing bullets into clay if they don’t
have any relationship to the human body?
̂ ^^y have, and there may be a lot of other
people who have done the same thing over the time,
but certainly as we are all aware of and not trying
to be facetious about it, but certainly how else,
how can we draw relationship, we certainly can’t use
people. Cadavers have been used in firearm studies.
There is no relationship because of the living
tissue.
Q Did you have an opportunity to discuss with
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.[
the Memphis police o:^'icers the cavltationEl effect
of these various types of ammunition?
A. Did I what now?
Q. Have an opportunity to discuss or an
occasion to discuss with the Memphis Police
Department officials or officers the differences in
cavitational effect amons: these different types of
ammunition?
A. Yes, sir, I think I said before the
tactics and equipment board requested and we did
discuss it and I think it is written here in the
report.
Q. Well, did you tell the officer that the
125 grain Remington'would protect them if they were
confronted with an armed suspect or they wanted to
apprehend somebody because it causes a great big
hole in clay, is that what you told them?
, No, sir, I ’m not about to tell them and
I ’m not about to tell them that particular round
will,stop somebody Instantaneously.
Q, Are you familiar with the term of the
hydrostatic effect, Mr. Coletta?
■A.- Yes, sir.
Q. And would you define that particular
term?
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A. . As I unders^nd It it Is the reaction of
living tissue from the entry of a projectile.
Q. And are you able to say anything about the
hydrostatic effect of the three types of ammunition
that we are talking about, that Is the 158 as
‘̂ °mpared to the 125 and 110?
A. According to my understanding of It I would
say that the 125 produces a greater hydrostatic effect
because as demonstrated In the cavitation, the
cavity, and that Is what I was really kind of looking
for In clay as to what we might expect and possibly
we could make an analogy there.
Q. Well, you said that you are familiar with
writings In this area. Do you have any knowledge,
based upon your consideration of the literature In
this area as to whether it has been reported that the
1 58 has a less, a hydrostatic effect that is less
than the hydrostatic effect of a 110 or a 125?
A. That particular terminology I don’t know.
I know'a lot of sports writers have used the term,
but that doesn’t make It correct.
Q. . All right. Let’s use some more common
terminology. Have you been able to reach any
co'ncluslons about the ability of these various types
of ammunltbn to wound a human being?
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A.
Q.
A.
Yes, I thir^ I have, and —
And what conclusions have you reached?
WEll, as I say, I'm not a medical expert.
but through observation and through the studies that
I have looked at that have been conducted by
supposedly authorities, I think my conclusions are
that based scientific' fact, the mass, the speed and
where it strikes a person is contingent upon what
type of wound in relation to a wounding or killing
or whatever.
Q* All right. Let me pose this to you,
suppose that we had the three types of ammunition that
you have been discussing and these projectiles hit
a person in the exact same area.
A . Yes.
Q. Would you be able to, based upon your
experience and your reading of the literature, to
•indicate whatVwould be the expectation, the
expectation of relative wounding that these types
of wounding would cause?
A. From the literature that I have read,
I b e l i e v e t h a t t h e , o f t h o s e t h r e e , t h a t t h e 1 2 5
’g r a i n w o u l d h a v e a g r e a t e r w o u n d i n g c a p a c i t y , b u t
i t w o u l d a l s o h a v e a g r e a t e r s t o p p i n g a b i l i t y a n d
i t w o u l d t h e r e b y m e e t t h e o b j e c t i v e s o f s a f e t y t o
543
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the officer and it ^ u l d also meet the objective
of safety to innocent people.
All right.^ By stopping power, what
exactly do you mean? •
To stop a person immediately from performing
any other aggressive action or any other action.
Well, how is that stopping power manifested
in terms of the human body based upon your
readings?
^ doctor again, but based upon what
I have read, evidently the central nervous system
has much to do with it. The psychological set that
P ^Son has, if he has a predetermined set pattern
or set plan or set action, then he is going to carry
that out unless he’s physiologically unable to.
Well, I make an analogy to deer hunting, which I
^have .done a lot of, and I make an analogy to shooting
game, I think'it is valid because they are living
animals and I have literally shot the heart plumb
out of a deer, but yet. the deer ran ninety paces
and then I apply to that my work to police officers.
What if a man is confronted with a suspect, what will
instantaneously stop that person from being able to.
deliver aggressive action, and I find it, I'don't
know of anything that will, that a police officer has
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1 within his capabillt;^-fes because of the fact that it
takes mass and velocity and where you strike him, and
In the area of weaponry, T don't know what it is.
Are you familiar with the terminology, the
relative incapacitation index?
A. I'm familiar with the terminology, yes,
sir. ■
Could ycu define that particular phrase?
A. I believe that is a scale that was
instituted by the law enforcement standards program
in the study that they produced police handgun
ammunition and the relative incapacitation index
is where a particular' pro.j ectlle stands on a scale
of its ability to incapacitate an individual.
V/ould that be pretty much what you were
-Referring to as stopping power?
^ ^es,: sir. - '
Q* ' Do you have-any knowledge of where the
projectiles stand relative to one another in
terms “of their relative incapacitation index?
A. I have read the report.
Q» Do you recall what that report indicated
about whether a 158 had a higher relative
incapacitation index than a 110?
I believe the 158 was lower.
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Q.
A.
Q.
■ ft • ■
So it had aylower incapacltiatlon Index?
Lower.• ’"
■; : What about" the relationship.'between^ a.. 110
' ■ ■ . ' '■? ■' ■ ' "'and a 158 in terms of,, incapacitation' index?/-.̂ •̂';■''̂ ’■''•Ĉ'̂Ĥ.̂'̂
Again, now,'^it 'depends on the brand and .
• * '
we haven’t even mentioned brand here, because brands
, differ,.too. ;We _are Just speaking generally.'
V Q* - No,. excuse'me , Mr. .Cpletta, ...by’using .the
• •. •» . . ' • \ ' •■ . • • ’.•■«• • • . . • -s. •
shorthand term 110 all'along, let me make clear,
for the purpose of the record and for your purposes
that I'm referring to^the 158 Winchester.
■ A , All right, sir.
And I'm referring to the 110 Smith & Wesson.
A. All right, 'sir.
n
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...Q,,- .-And I'.'m referring to the 125 .Remington .
' »'.that,.help.>.,you?,.
'̂.1, ■ • • ■- ftH:
- ^A. ;yes.,' it- does .. Thank, you.
THE COURT: Counsel, IVm sorry.’,: ■ - • ■ •- y \
to interrupt'you gentlemen, I know
that Mr. Bailey has a problem on •
tomorrow afternoon. I don't know
how much longer Captain Coletta is
going to be"on the stand. As I
recall we started with him on
yesterday afternoon. I may be
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J
mistaken about that, but we have had
some.:,interrupt ion during the,;, course ■
122 .
j » j-r t' of the. day. .̂ Can you give me '>somê
estimate about how much longer? '• - .■
',■ A '■ j :. 1 '
MR. DAYS: I would say a half
hour .
- . X' :'•••';X ■ ' .
. ' . _ ll.THE,jCOURT: All, right I ,.>lê will'v
adjourn until 9 : 0 0 tomorrow m o r n i n g
and I presume that we will not be ■ .
finished :bŷ 2 :0 0 tomorrow afternoon. - ••
' X MR. Vb AILEY: ' Your Honorwith|-^''.||;X|^^
■Wf -‘vv
the Court's permission and Mr. Days
can continue to proceed in my absence.
He and I both are just as equally-.
‘ ' < : • ■>"■ ' V V . ■’ V '..'j '! ; **■, .#* ^ Tw ^ T ^ n T.7 "t 4*Vt ^ ̂ ̂ r .— - . ' V .". ‘ t --I-’-. :••■■-̂4̂ 4.4- -familiar with the case.
* _ . . . . .A f X X X r-'-j ;.1 rXATHE'COURT: X^wlll do X h i s X n
‘iV*'',--.; :vXXl-X C:' - ■; ■
!' '•■ 9 :00 tomorrow morning asvfar as we^l'
■ ̂ can go for a late hour so you will
be able, to be here for,a longer i,
period of time before proceeding, in -
, • - '•■ ■ the, afternoon to accommodate, you as . ' ,,v
• ■ '■ -f. '•■ •• •■ ;..vv' ■ ■ i. ■■•,7: much>; as-..we-.'.posslbly . can X n that
respect, and I certainly understand
your situation and you certainly may
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be excused'jLn that unexpected development.
And we'wlltistand adjourned then until
9; 00.-̂ :tomorr-aw morning and'we will resume-^ ■ J:'*''
.*• ■■ ■ »•• V>.•-.*.■• ••a'---:
at.that time. I ’m .sorry.- that;, we,., have • had.
interruptions In this case that none
6
of you were any way responsible for and
* r .fcy/.̂;'yv
I 'm^^sorry ; to have .delayed you and . the ^';r l-.,-- > 1.. ■ ’ r*' 'v}̂ Ilk• ■ '.'.'i ■ \ ' c ‘ ' 7 ;.Z_̂ ~“r:
witnesses, in . that regard .■■'̂ ŷ We■'•wlll■'' s.tand ̂''%̂^̂';,
adjourned then until 9:00 tomorrow
morning.
.. rv. ■; o .-v'/ ''-'yt, ■'
..h':(Whereupon, court; adjourned .until;..sê c
*•'■■. .y*
.• ,*y-
9 :0 0 a .m. , .^Wednesday ,^/August .Mth, ■ 1976
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::453 554
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125
V/ITNESS
I. D E X
D I R E C T CROSS R/D R/C
JOHN A. COLETTA
DR. J. T. FRANCISCO 2 2 5
1 3 2 163 2 0 8
2il5 265 266
NUMBER
E X H ^ B ^ T S
IDENTIFICATION EVIDENCE
1 8 - A t h r o u g h 1 8 - I
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256
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126
^ING SESSION
AUGUST ^ , 1976
THE COURt: Gentlemen, I think I
can promise you a less interrupted day
today. I ’m sorry you all were delayed
on yesterday and we are ready to
proceed, if you are.
MR. DAYS: Yes, we are.
THE COURT: I take it that it
is satisfactory, Mr. Days, in
accordance with what Mr. Bailey
advised us yesterday that you will
be proceeding in his absence.
MR. DAYS: That’s correct.
Your Honor, before I proceed
with the examination of Mr. Coletta
I would like to make clear on the
record the fact that the slides that
were shown yesterday are to be
Introduced into evidence I believe,
as collective exhibit 18.
THE COURT: Let one be marked,
I believe you referred to a slide
number, let each one of those be
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1
2
Jmarked with a letter slide number,
l^would be collective exhibit l8-A
or whatever.
M R . D A Y S : ' I c a n s u g g e s t t h a t
n o w , I w o u l d s u g g e s t t h a t s l i d e
n u m b e r l 4 b e m a r k e d a s E x h i b i t l 8 - A ,
s l i d e 1 5 a s E x h i b i t 1 8 - B , s l i d e 1 6
a s E x h i b i t l 8 - C , s l i d e 2 a s E x h i b i t
1 8 - D , s l i d e 3 as E x h i b i t l 8 - E , s l i d e
4 a s E x h i b i t l 8 - F , s l i d e 5 a s e x h i b i t
1 8 - G , s l i d e ,6 a s E x h i b i t l 8 - H a n d
s l i d e 7 a s E x h i b i t l 8 - I .
THE COURT: All right, sir.
Let them be so introduced subject to
and noting the objection of the
defendant with regard to the
introduction of these items for the
reasons stated by the defendant and
the Court at that time on yesterday
indicated that the defendant's
objection would be overruled for the
reasons that the plaintiff asserted
a part of, its theory with
respect to the action of the defendant's
officer and with regard to the defendant
127
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12H
with regary to policy.
(Whereupon, the said slides
referred to above were accordingly
marked Trial- Exhibit l8-A through
I respectively and received in
evidence.)
MR. KLEIN: Your Honor,
excuse me, may I make one other
reference.
THE COURT: Yes, sir.
MR. KLEIN; With regard to1
the movie Itself I think it was made
an exhibit to the testimony and
Captain Coletta asked me whether or
not that had to remain here or
whether he could take it back with
him. I don’t think Mr. Days has
any objection to Captain Coletta
taking it back v;ith him with the
understanding that it has been made
an exhibit and will be in his
custody.
THE COURT: Is that agreeable
provided that it will be available
for vfhatever purpose as a part of
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the record as and when needed?y
MR. DAYS: Your Honor, we have
no objection to Captain Coletta
taking the film. It is our
understanding that he wishes to
continue its use in a training
program, and, of course, we have no
objection to that.
THE COURT: All right, sir.
My suggestion would be that
counsel on either side, with Captain
Coletta having possession of it,
note, I ’ve forgotten the commercial
procedures of that, but perhaps
the cover indicate that in the event
that despite, any reasonable best
efforts that something were to happen
that a replacement, if necessary,
could be obtained or a copy could
obtained.
MR. DAYS: Yes, sir, that
certainly would be a wise idea.
THE COURT: I ’m now becoming
a little more conversant about films
and copies of films after hearing
I ] 129
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about nine vjjeeks about film and
copies .of film and bootlegs and so
on and so on. I make that suggestion
for purposes of the record. .1 don't
believe that we will have any problem
about bootlegs of this particular
film.
MR. DAYS: Your Honor, I'm not
a lawyer practicing generally In
Memphis, but I can say to the Court
that I'm well aware of how the Court
came to an understanding perhaps of
a question of films and a copy
thereof.
THE COURT: It Is a rather sore
subject right now, Mr. Days.
MR. DAYS: I won't belabor it.
THE COURT: Mr. Klein being
similarly Involved with another
matter will understand the context
of the Court ' s statement because I
helieve he represents another
defendant in another matter in which
recent developments have raised some
concern to the court and prosecution.
456 t)b0
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1 JOHN A. GOLETTA,
J
resumed the stand and testified further as
follows:
DIRECT EXAMINATION
BY MR. DAYS:
Q. Mr. Coletta, yesterday when we recessed
I believe we were discussing a concept called
relative incapacitation index, and you expressed a
familiarity with that particular phraseology and
index. Could you again for the record, indicate
what you understand that index to reflect?
A. Yes, sir. Well, the index reflects the
ranking or order of various projectiles according
to this particular study by the law enforcement
standards program that attempts to rate various
type of ammunition. However, I must say again this
morning that any study is subject to criticism, is
subject to be tested for its validity. That the
table in and of itself is nothing but a group of
numbers, that it must be explained that it must
be discussed, the premise is brought forth for that
to have any value or significance whatsoever and
then the significance of the validity of the study
can then again be questioned.
Q. Ts this the.document to which you have been
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referring? Is this study that you and I have been
referring to at this point?
A. Yes, this appears to be it, yes.
Q. And’it was-done by what organization?
■ ■ i ‘
A. , Law Enforcement Standards Laboratory,
National Bureau of Standards under a grant I think
from the LEAA Law Enforcement Assistance Administra
tion .
Q. Now, do you recall the premise upon
which this particular study was conducted?
For example, was it a study to determine the
relative incapacitation Index in terms of shooting
a person under any condition, or was it designed to
demonstrate this relative incapacitation index with
respect to certain confrontations between police and
private citizens?
THE WITNESS: Your Honor, if
I may, I have made notes of that
study, personal notes regarding
• that study.- May I use them?
THE COURT: Yes, sir, if there
^s no obj ection .
MR. DAYS: Would you like to
use the study itself?
A. I would rather use my notes.
133
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1 MR. DA^: All right. I have no
obj action to it.
THE COURT: Either counsel is
entitled with-regard to the testimony
of the witness to view any notes upon
which may assist his testimony.
With that understanding you may proceed.
Q- (By Mr. Days) Captain Coletta, do I
understand your notes are designed to refresh your
recollection, that you have a present recollection of
what the study contained?
Yes, sir.
Q* And it doesn't represent your recollection
of the particular study, that is, you don't have
any present recollection of what the study contains?
A. I have a recollection, but it is not as
in depth because this is a very technical matter.
Q- Yes, so I have learned.
A* And this will refresh my memory on the
various assertions, premises and whatever.
Q- All right. Getting back to my question.
Do you recall what the context was for this particular
study, was it designed.to determine the effectiveness
of certain types of ammunition, if a police officer
was shooting a subJect. under, or was there a certain
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1
i 1 ^35
i:circumstances under wj^lch a police officer would
confront a subject that would serve as a basis for
this study?
A. As I .’understand it It was designed to
determine three points. The penetration of a
projectile. The ricochet potential of a projectile.
And also the Incapacitation probability of a
projectile. Those three points is what I understand
the study addressed itself to.
*5 • Let me direct your attention to page 4
of this study and let me show it to your counsel
before I do that.
I want to direct your attention to page
4 of this study, this LEAA study beginning with the
paragraph, the Incapacitation criteria on down and
I would like for you to read that to yourself and
have you indicate whether that refreshes your
recollection with respect to the subject question
that I posed to you earlier?
A. . Yes, it does refresh my memory, yes, and
it does address the fact, just as I said, it does
address the fact of incapacitation.
Q. But incapacitation under what set of
circumstances?
A. Linder a self defense type of circumstance
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1
1 136.
where an armed assailant is confronting a law enforce
ment officer and attacks the officer, and, therefore,
the officer must administer a swift incapacitating
Injury to the assailant -in order to save his own
life .
Is it fair to say that this study is not
concerned with the question of what should be the,
°r what would be the appropriate relative incapacita
tion index if the situation did not involve an
armed subject confronting a police officer?1!V. ,
A. This study does not address that, no.
Q. All right. Do you recall whether the
study Includes any overall ranking of various
types of ammunition with respect to their ability
incapacitate, that is, their relative IncapacItatic:i
index?
^es, sir, table one is a ranking of such.
Q. What about a ranking in terms of general
classification of ammunitions; is there any
indication, for example, whether hollow-nose
ammunition has a higher overall ability to
incapacitate than round-nosed ammunition?
A. I think it addresses that. Yes, sir, I
think it states --
Q And in addressing that, what do you
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I
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137
recall the studies r.i
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A.
vlnp: reached?
It reached the conclusion that contingent
upon its variables and the variables were the
crux of the matters, the variables that they set
out, the bullet, mass, the shape, the shooter
accuracy, the danger to bystanders, the test
vehicle Itself, the ordnance gelatin was used to
control atmosphere, a computer man, which is a
subjective Judgment of a group of medical experts
on what will occur if the shot is placed at this
particular point, et cetera, et cetera. It addresses
its many variables and, yes, sir, it does address
that fact.
Q- And do you recall the ranking of hollow
nosed ammunition in terms of its ability to
incapacitate as compared to the round-nose ammunition?
A. Specifically, tio. Generally, it is
higher in its ability to, according to the table one.
Q* Let me direct your attention to another
section in this report and ask you whether it
Refreshes your recollection in this respect. Address
your attention to page 8 at the top, figure 2 shows
that, and have you read that and have you Indicated
whether that refreshes your recollection as to this
matter of relative ranking by a general type of
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ammunition?
T38'
A. Yes, sir, figure 2 shows it over a wide
range of velocity. The ranking in order of
decreasing, or — which is relative incapacitation
index, rated hollow-point, .jacketed hollow-point,
semi-wad cutter, E-jacketed soft-point, F-lead
round-nose, G-full metal jacket.
So the list' runs from A down to what
letter?
A. G.
Q. And A is the hollow-point
A. Is the lead hollow-point.
Q. The lead hollow-point?
A ; Yes, sir.
Q • And the round-nosed type
at what letter in the ranking?
A. P.
Q. F, so it is next to the b
A. Yes, sir, sixth on the li
Q. Now, do you recall in the
this study whether there v;as any ranking given to
the three types of ammunition that we have been
•discussing in your testimony, namely the 158
Winchester, 158 graln-.Winchester, the 110 grain
Smith & Wesson and the 125 grain Remington cartridge.
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1 do you recall the rahPilnp:?
A. Yes, sir, it Is ranked, the 125 grain
Remington, I believe, is number 26, out of a ranking
of some 142 listings.
Q, And where does the 110 stand?
A. The 110 is 69th.
Q. And what about the 158?
A. And the 158 is 105th.
Q. And so the 125 grain is, what did you
say, 26th out of 142?
A . Y es, s i r .
Q. And these are commercially available
types of ammunition?
A, Yes, sir, well, commercially available.
I noticed there is a Glaser round in here, I don’t
know if it is commercially available.
Q. All right. I v;ant to get to the Glaser
somewhat later on, if I may.
A. All right, sir.
Q, Now, do you recall in terms of the
ranks what the studies suggest in terms of the
acceptable levels in the terms of the relative
incapacitation that would be necessary incrder for
a police officer confronted face to face with
an armed subject to be able to deliver a blow.
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a wound to the poten al assailant, if I may use
a vernacular phrase, to put that person out of action
immediately?
1̂ 0
A.
Q.
A.
Q.
A.
Yes, sir.
* Do you remember that?
Yes, sir.
And what does your study recommend?
The study says that the minimum is
approximately ten. However, it is merely an
estimate and deals merely v;ith probabilities that
there are no absolute and that this is true with
all biological measures of this type.
Q* All right. So the minimum is ten, is that
right?
A.
Q-
A.
According to this.
Accordlngtothis?
It is suggested that their, I think it makes
it clear that they don't know, it is just a suggested
minimum.
Q* No, I didn’t mean to communicate to the
court or put into your mouth any thought that this
study represented a definitive exposition of what
type of ammunition under the circumstances would
be absolutely perfect and do the job. I certainly
don't Intend to have that communicated to the record.
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V/e do have
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his figure of relative
incapacitation index 'of ten, is that correct?
A • Yes, sir.
Q. Can you estimate, based upon your
recollection or the study that you have before you,
what was the relative incapacitation index at the
very highest point in the study, that is the highest
ammunition on the list, what was the relative .—
A. .44 Magnum at 54.9 with a Jacketed
hollow-point 200 grain projectile.
* So the highest relative incapacitation
index on it was 55?
A. 5 4 . 9 .
Q . 5 4 . 9 .
A . Yes, sir.
• Where does the 55 grain Remington stand
in terms of RII?
A. It is greater than 50 per cent, it is
2 5 . 5 .
2 5 .5 , so it is over 50 per cent of that
highest point?
A. It is less than fifty per cent.
What about the H O grain Smith & Wesson?
A. 12.4. ’
Q. 12.4, so we go down approximately another
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f i f t y p e r c e n t , i s t l U f t r l F h t ?
A . Yes, s i r .
A n d w h e r e d o e s t h e 1 5 8 g r a i n W i n c h e s t e r
s t a n d ?
A . 8 . 0 .
Q * C a n y o u d e s c r i b e s o m e t h i n g a b o u t t h e
a m m u n i t i o n t h a t i s n u m b e r o n e o n t h e l i s t ?
A. Y e s , s i r . The .44 M a g n u m 200 g r a i n
J a c k e t e d h o l l o w - p o i n t Speer, S p e e r m a n u f a c t u r e d
p r o j e c t i l e . I t i s a s l u g o f 4 4 / l O O t h s o f a n i n c h
i n d i a m e t e r . I t w e i g h s 200 g r a i n s , 7000 t o a p o u n d ,
i t h a s a J a c k e t o n i t , s e m i - j a c k e t o n i t p r o b a b l y ,
w i ' t h a n e x p o s e d l e a d n o s e v / h i c h i s h o l l o w - p o i n t e d .
Q . C a n y o u s t a t e t h e c i r c u m s t a n c e s u n d e r
w h i c h t h a t i s u s e d i n t h e U n i t e d S t a t e s ?
A . G e n e r a l l y i t w o u l d b e u s e d i n h u n t i n g g a m e ,
t h a t i s t h e p u r p o s e o f i t , t o h u n t g a m e . " '
N o w , b a s e d u p o n t h i s p a r t i c u l a r s t u d y t h a t
w e h a v e b e e n d i s c u s s i n g , d o y o u t h i n k i t w o u l d b e
f a i r t o s a y t h a t i f a t y p e o f a m m u n i t i o n t h a t h a d
a r e l a t i v e i n c a p a c i t a t i o n i n d e x a b o v e t e n w a s u s e d
t o s h o o t a n u n a r m e d f l e e i n g f e l o n , t h a t a w o u n d
p r o d u c e d b y a c a r t r i d g e a b o v e t h a t l e v e l o f t e n
w o u l d s t o p t h a t p e r s o n w h o w a s f l e e i n g d e a d i n h i s
t r a c k s , i s t h a t f a i r t o say, s t o p h i m r i g h t a t t h e
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point where the InJ occurs?
A . No, sir.
Q. Well, can you say anything about the
effect that a cartridge would have based upon the
rankings that are given in the study?
Yes, sir, I could say a lot about it. As
1^3
A .
I say it is Contingent upon the stated variables
and in every variable, velocity, bullet, mass,
shape. It says, number one, that deformation must
occur, this is a controlled experiment, deformation
must occur and that the point of aim and point of
Impact which overlapped vital organs must occur.
Q. All right. But is it fair to say that
all things being equal, assuming that one of these
cartridges, assuming that a person armed facing the
/
officers, or hit a person running away, if one of
these cartridges hit such a person in the same
place that was used for the purpose of conducting
this study, would it have the effect you think of
stopping that person cold, incapacitating, making
it impossible for that person to run?
A. Once again it is contingent upon many
variables. I cannot definitely say that anything
of this weight'’'within the spectrum, the low spectrum
on the scale of velocity, on the scale of projectiles
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because this Is on alV.ow end and I can't say that
anything Is an absolute guarantee that It will
stop a person cold dead In his tracks.
Do I recallicorrectly that one of the
concerns that the Memphis Police Officers express
with respect to the ammunition that was then In
use around 1970-1972, was the concern over potential
ricochet ?
A . Yes, sir.
Do you recall whether this particular
study contains any particular information about the
ricochet effect of the types of Information that was
tested In this study?
'iez y sir. It did address the situation.
^o you recall what conclusion that the
study reached in that regard?
̂ believe that it said that the heavier
the bullet the slower ,that It moves, the greater
the ricochet potential. I believe It said that the
higher velocity type of ammunition with a greater
RII has a less ricochet potential. It states here on
page 9, the hazard and also that the ricochet
decreases as the frangibility of it.
. What' does frangibility mean, it Is a
lovely word, but I don't know what It means.
573
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That Is thel properties of the bullet,
construction Itself, the properties that It has of
being able to- expand in a controlled manner and it
may even mention here some of the things that he
says here, I wonder what it means, too, but it
also may mean fragmentation to a certain extent,
I don't know.
Q. Do you recall any reference to a safety
slug?
A. Yes, sir, I do.
Q. Is there any reference to a safety slug
in terms of the issue'of ricocheting effect?
A. It said I think, yes, with the exception
of the Glaser safety slug, all handgun bullets
studied pose a serious ricochet hazard to bystanders.
Q. What is the Glaser safety slug, do you
^now?
A. It is a round loaded to an extremely high
i
velocity, therefore, it has extremely high pressures
and loaded with a projectile that actually is a
mass of small shotgun type shot that is bound together
with some Teflon coating. I don't know the constructlo
As I understand it that is about it.
Q. ' Under what circumstances is it generally
used here in the United States?
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A.
used.
Q.
146"
I really dbn't know that it is even being
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I see .
Mr. Coletta, am I correct in recalling
that in your earlier testimony we discussed the
whole question of the relationship between kinetic
energy produced by a particular projectile and the
cavltatlonal effect that would be caused by that
projectile relative to the release of kinetic
energy?
A . Y es.
Q. Are you familiar with the person named
Vincent DeMayo?
I have read his works.
Q. You have read his works. Can you Identify
who he is?
A. I believe he *s an MD and is at Southwestern
Institute of Forensic Science in Dallas, Texas. ‘
%
Q. And if I suggested to you that he's also
the chief medical examiner for Dallas County, would
%
t h a t b e c l o s e t o c o r r e c t ?
A .
Q.
Yes .
^°es that refresh your recollection as
to what his present capacity is?
A. I don't know v;hat his present capacity is
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I understand that he
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as associated with the
Southwestern Institute of Forensic Science.
Would you say that he’s regarded as an
expert in the field of'ballistics and wound
ballistics?
A T• would say he has quite a bit of knowledge,
yes, sir.
• Has he written extensively in this area?
A. It depends on what you mean by extensively.
He’s written in this area.
Q- Would you say he's written a number of
articles in this area?
A. Yes, sir.
Q- Let me hand you a document and see if you
recognize it.
A. Yes, sir, I do recognize it.
Q* Are you familiar with that article?
A. Again I have read it, yes, sir.
Q* Do you recall whether it contains any
indication as to the relative kinetic energy released
by certain projectiles that we have been discussing.
A. Yes, sir, it does address that.
Q* Does'the study Indicate anything about
the kinetic energy that v;as found to have been
released by the 158 grain Winchester?
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A.
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Yes, sir, is.
Q. And what does It Indicate?
A . It Indicates that 72 foot pounds, plus
or minus H^e, kinetic 'energy loss.
Q. 72 foot pounds?
A. Yes, sir.
Q. Does It Indicate anything about the
1 2 5 grain Remington cartridge?
A. Yes, sir. It does.
Q. What does It Indicate?
A. It indicates 237 foot pounds plus or
minus eight.
Q. Two hundred and what?
A. 28 .
Q. Foot pounds?
A. Yes, sir.
Q. So would I be remembering my arithmetic
correctly if I said that that study reflects that
1̂18
the kinetic energy released by the 1 25 grain
Remlngt.on Is ov&r three times that of the 158
Winchester?
Approximately, yes, sir.
MR. DAYS: I would like to have this
document marked for_ identification.
THE COURT: Al] right, sir. Let
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it be mark^ Exhi
Mr. Clerk.
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bit number 19,
THE CLERK: Yes, sir.
(Whereupon, the said
document referred to above was
accordingly marked trial exhibit 19
for Identification.)
Q- (By Mr. Days) Mr. Coletta, I would like
to show you a document marked Exhibit 19 for
identification and ask you whether you can Identify
it?
A. Yes, sir, this vfas the objective of the
ammunition study that we did within the police
department at the time that that report was written
Q. Did you prepare that particular document?
A. I did, I prepared It. Yes, sir, I did.
Q* Can you Indicate whether it was prepared
before or after the study was conducted?
A. As I remember this was before, this Is
what we were looking for.
Q. I see. And this represents to your
knowledge an accurate copy of that document?
A. Yes, sir.
MR. DAY.S: I would like to introduce
this into evidence, Your Honor.
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THe U o u RT: Let It be Introdaced
without objection.
MR, KLEIN: Your Honor, the
objeotlon'l have is the same that I
made to the slides before. I think
this Whole line of testimony Is
Immaterial, Irrelevant —
t h e COURT: All right, sir.
"^11 note the objection of the
defendant and It may be Introduced.
(Whereupon, the said document
referred to above was accordingly
marked Trial Exhibit 19 and received
in evidence.)
(By Mr.- Days) Mr. Ooletta, earlier we
had a discussion about the definition of a term
"hydrostatic shot".' Does this document assist you
In any way In understanding what the definition of
hydrostatic shock is?
A- * Yes, sir.
does it indicate?
indicates that it is defined as the
ability to stop a criminal Immediately from what
he s doing, that is what is written here.
^ person were trying to shoot a
Q.
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151
police officer, hydr<^^^tat 1 c shockwould mean that that
person could not continue to shoot the police officer
is that correct?
A. That's correct.
*3 • And if a person were running away from a
police officer, that would mean that the person would
no longer be able to run away, is that right?
A. Right.
Q* You have, if I read correctly on this
document, a reference to expansion effect. Can you
indicate what that document says in the terms of
the objectivity of the study with respect to
expansion effect?
A . Yes, sir.
Q* What does it state?
It says: "Close relationship to 'shocking
power f _ff i for hydrostatic shock — "--defined as
producing sufficient trauma. Some bullets due to
their shape and the hard consistency of construction
will bore a straight hole through a person, doing
damage in some areas, but usually with too great
penetration and too little "shocking power".
It does not deter the person immediately from his
Obj ect1ve."
Q- So you were concerned about the relationship
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lion effect an
152
between expansion effect and hydrostatic shock or
shocking power. Is that right?
A . Y e s, s 1 r . , '
Q. Mr. Coletta, we have been talking about
ballistics as if it were one field of endeavor, one
type of specialty. Am I correct in thinking that the
field of ballistics is broken down into sub-categories
A . Yes, sir, it is.
Q. And do you know what those sub-categories
are?
A. Well, there could be Internal ballistics,
external ballistics, terminal ballistics.
Q. Could you indicate, if you will, how
those sub-categories are distinguished from each
other?
A. Interior ballistics would be the actions
that transpire from the time that a cartridge is
first in a handgun until the time that it emerges
from the bore or the muzzle of the gun.
Q. Did you say Interior or internal?
A. Internal.
And what about external ballistics?
A. That wouldc9ver the time that the bullet
emerges from the bore or muzzle of the gun until
it strikes some ob.ject.
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*5* And you referred to wound, or did you
mention terminal ballistics?
A. Terminal ballistics.
What is terminal ballistics?
A That would deal with the, the object it
^trikes, kinetic energy.
‘5* Is that synonymous with wound ballistics?
I think it is taken in that concept, more
or less, yes, sir.
would you define yourarea of expertise
given those two sub-categories of ballistics?
Moreso in Internal and external rather
than terminal.
All right. So your field of inquiry and
study has been in the area of Internal and external
ballistics?
A- Yes, it has been in that area, but I have
been concerned with the terminal ballistics also
due to the nature of my work.
Q* . Yes, sir. Nov/, the course of carrying
out your responsibilities as head of the firing
range, and I believe now as commander in charge of
the training division, have you come across any
discussions of the Hague convention of I899 as it
relates to ammunition used by police departments?
m
"K. KLETm . v_ Honor, i.„
::*"• ■• “ ’•■• *" •“ •■ • » »
I...
relevancy to the laaue at t» ^® at hand, what
relevancy ̂ h = e,-- Haa eacapes „a, and m
that respect I object to It.
DAYS: May iay I respond to that,
Your Honor?
the COURT; Yes, sir.
WH. DAYS: Yomt. u^our Honor, as I
^^^^cated yestf»r»ri-iyesterday, one of the io^ ^ae Issues
that we submit preseni-«H kpresented by this
litigation is the extent textent to which
certain types nrypas Of anrannltlon represent
--ceptahle levels m the te'r^a of
atnity to „ound or to . i n
■'beings, and as i .referred yesterday
‘he Court's attention to the .CO the whole
Question of the- Shocking of the
conscience of the Court the°urt the extent to
Which certain t.ypes of injury inflicted
- h violate concepts of lihart. and
thereby violate the due^e due process
clause of the United nr rPlted states Constltu-
‘ l°h- We subirlt that th‘hat the discussion
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155
i n i n t e r n a ^ o n a 1 l a w a n d t h e r e a c t i o n
o f t he. U n i t e d S t a t e s o f f i c i a l s t o
c e r t a i n s t a n d a r d s t h a t h a v e b e e n
e s t a b l i s h e d i n I n t e r n a t i o n a l l a w h a v e
s o m e b e a r i n g u p o n t h e c o n s i d e r a t i o n
b y t h i s c o u r t o f w h e t h e r t h e a m m u n i t i o n
t h a t w e h a v e b e e n d i s c u s s i n g g o e s
b e y o n d t h e b o u n d s o f a c c e p t a b i l i t y i n
t e r m s o f t h e s t a n d a r d s t h a t h a v e b e e n
e s t a b l i s h e d u n d e r t h e c o n s t i t u t i o n ,
a n d w e s u b m i t t h a t i s r e l e v a n t . W e ,
b y n o m e a n s . I n t e n d e d t o s u g g e s t t o
t h e c o u r t t h a t t h e c o u r t ' s c o n s i d e r a t i o n
a n d d e c i s i o n o n s o m e o f t h e s e i s s u e s
i s c o n t r o l l e d b y t h e H a g u e c o n v e n t i o n
o r c o n t r o l l e d n e c e s s a r i l y b y i n t e r n a t i o n a l
l a w , w h e r e b y U n i t e d S t a t e s l a w , i n
r e a c t i o n t o - t h o s e s t a n d a r d s , b u t i t
i s a t y p e o f c o n s i d e r a t i o n t h a t i s
c e r t a i n l y w i t h i n t h e a m b i e n t o f
c o n s i d e r a t i o n t h a t a c o u r t m a y
a p p r o p r i a t e l y t a k e i n a c a s e o f t h i s
n a t u r e .
T H E C O U R T : A s s u m i n g t h a t y o u a r e
c o r r e c t i n y o u r a s s e r t i o n t h a t i t h a s
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156
some bearing or may have some relevancy,
does a conventJon of 1899 have
pertinency or relevancy In point of
time? What^I’m asking really is what
is the state of knowledge and
understanding with regard to capability
so-called wounding or lethal capability
as of 77 years ago in the context of
today, assuming that you are correct,
otherwise gives me problem.
MR. DAYS: All right. Your Honor,
we are prepared to brief the question
of precisely the relation in time that
you raised. We submit preliminarily
at this stage that the standards that
were established in 1899 have controlled
the behavior of governments in
international relations and have a
present impact upon the way that our
government determines the type of
ammunition, the types of wounds that
would be appropriate even in warfare,
and so thati,the standard in 1899 is
one that is not, we submit, ehcased
in rosin and of prehistoric nature.
QSI 580
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but one th^t
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has a continuing impact
upon the behavior of nations and our
own country, and, therefore, again the
question that* is presented to the court
is what weight to give to this particular
area of relevancy, not whether it, in
fact, pertains to the Issues that we
have been discussing and that are
raised by this litigation,
THE COURT: Well, again, this is
a non-jury, situation. I would have a
serious question in my mind in a Jury
situation that this is sufficiently
Pertinent or relevant or may or may
not be misleading, but in a non—jury
situation I will note the objection and
again without ruling on the objection
you may ask.
MR. DAYS: Very good, thank you.
Your Honor.
(By Mr. Days) My question, Mr. Coletta,
is whether you had in your work and in your readings
as an expert in ballistics come across any reference
to the relationship of the Hague convention of 1899
to various types of ammunition?
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A . Y e s , I h av<-
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Q - A n d c a n y o u i n d i c a t e t h e n a t u r e o f t h a t
f a m i l i a r i t y ?
Y e S j s i r , . i t . w a s t h e p r o p o s a l , a n d , o f
c o u r s e , i t i s a p o l i t i c a l t h i n g , a n d i t w a s a
p r o p o s a l t h a t , q u o t e , d u m - d u m b u l l e t s , a s d e f i n e d
a t t h a t p a r t i c u l a r t i m e , p o i n t i n t i m e , w h i c h I
d o n ’t t h i n k t h e y r e a l l y k n e w w h a t — a n d t h e y
c e r t a i n l y h a d n o i n f e r e n c e m a d e t o w a r d h o l l o w - p o i n t s
b e c a u s e t h e y d i d n o t k n o w w h a t a h o l l o w - p o i n t b u l l e t
w a s , b u t t h e r e w a s a n a t t e m p t t o b a n a l t e r e d b u l l e t s ,
e x p l o s i v e t y p e b u l l e t s b y u s e o f n a t i o n s e n g a g e d
i n i n t e r n a t i o n a l w a r f a r e . H o w e v e r , G r e a t B r i t a i n
a n d t h e U n i t e d S t a t e s a r e n o t a s i g n a t o r y o f t h o s e
C o n v e n t i o n s .
A l l r i g h t . L e t m e r e a d t o y o u f r o m t h e
d e c l a r a t i o n 4 3 , c o n c e r r ^ i n g e x p a n d i n g b u l l e t s s i g n e d
a t t h e H a g u e o n J u l y t h e 2 9 t h 1 8 9 9 a n d l e t m e r e a d
t h a t p a r t i c u l a r p r o v i s i o n t o w h i c h I w a n t t o m a k e
r e f e r e n c e —»
M R . K L E I N : Y o u r H o n o r , m y o b j e c t i o n
i s a c o n t i n u i n g o n e .
T H E C O U R T : Y e s , s i r , i t i s .
( B y M r . D a y s ) T h e u n d e r s i g n e d o f t h e
P o w e r s r e p r e s e n t e d a t t h e I n t e r n a t i o n a l P e a c e
587
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C o n f e r e n c e a t t h e H s ( ^ e d u l y a u t h o r i z e d b y
t h e i r g o v e r n m e n t .i n t h e d e c l a r a t i o n o f S t . P e t e r s b u r g
o f t h e 2 9 t h o f N o v e m b e r a n d t h e 1 1 t h o f D e c e m b e r ,
1 8 6 8 , d e c l a r e a s f o l l o w s : T h e c o n t r a c t i n g p a r t i e s
a g r e e t o a b s t a i n f r o m t h e u s e o f b u l l e t s t h a t
e x p a n d o r f l a t t e n e a s i l y i n t h e h u m a n b o d y . B u l l e t
w i t h a h a r d e n v e l o p e t h a t d o e s n o t e n t i r e l y c o v e r
t h e c o r e o r t h a t i s p i e r c e d w i t h a n y s i g n i f i c a n c e ,
t h e p r e s e n t d e c l a r a t i o n i s o n l y b i n d i n g f o r t h e
c o n t r a c t i n g p a r t i e s i n t h e c a s e o f a w a r b e t w e e n
t w o o r m o r e o f t h e m . . I t s h a l l c e a s e t o b e b i n d i n g
f r o m t h e t i m e w h e n , i n a w a r b e t w e e n t h e c o n t r a c t i n g
p o w e r s w h e n o n e o f t h e b e l l i g e r e n t s i s j o i n e d b y
a n o n - c o n t r a c t i n g p o w e r , r a t i f i e d a s s o o n a s
p o s s i b l e .
N o w , i s t h e r e a n y r e f e r e n c e i n t h a t
P a r t i c u l a r d e c l a r a t i o n t h a t I r e a d , a n y r e f e r e n c e
t o d u m - d u m b u l l e t s ? i
A . W e l l , a s I s a y , t h e U n i t e d S t a t e s d i d
n o t s i g n t h a t d o c u m e n t .
Q - I u n d e r s t a n d y o u r p o i n t .
A . N o w , t h e r e f e r e n c e t o d u m - d u m b u l l e t w a s '
a n i s s u e a t t h e H a g u e ^ c o n v e n t i o n , a n d w h e r e t h e n a m e
d u m - d u m c a m e f r o m a c t u a l l y , I d o n ' t t h i n k i t i s
r e a l l y k n o w n . I t i s a t t r i b u t e d t o a n a r s e n a l i n
159
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1 India which is more conversation. If you were to
talk about the validity of it, I don’t know whether
anything is stated, dum-dum bullet in that specific
word, I don't know. •
Q* Is there anything that I Just real to you
that contains the phrase dum-dum bullet?
A. I don't believe I heard that.
Q* Let me refer to something that I read.
Use of bullets that expand or flatten easily in the
^^nian body. Would you say that the hollow-point
bullets are the type that expand or flatten easily
in the human body?
A. I don't think that they expand or flatten
easily. I think that is the whole thing, the point
of the whole study. The validity is to be questioned
because of that fact, number one.
Q* O.K. Does a hollow nose bullet expand or
flatten more easily in-the human body than round-
ammuntion?
A. • Theoretically, yes. In fact, I have my
doubts.
Q- But that would be the — that doubt would
not be based upon any :studies that you have done,
would it?
A. It would be based upon observations of
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y police officers in thepeople who were shot
city of Memphis.■
Is the semi-jacket bullet one that is
enclosed in a hard envelope that does not entirely
cover the core?
Semi-jacketed?
Q Y.es .
A.
Q,
Yes , it is.
Now, have you served in the Armed Forces,
Coletta?
A.
Q.
Yes, sir.
And in the course of your service did you
have any occaslonto use weaponry?
Yes , sir,
I believe it was also indicated that you
attended the FBI training academy?
Yes, sir.
Was there any discussion at that training
about the use of the army of various types of
ammunition?
A. I don't know if there were any formal
studies. Certainly there vtere --
Q. Have you gone to any formal discussions
with respect to the various types of weaponry and
ammunition used by the army?
A.
Q.
A.
Q.
4S:)
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A. Have I b e ^ to any formal discussions?
Q. Yes, sir.
A. No, sir.
Q. Based upon yo'ur experience and reading as
a ballistics expert, do you have any knowledge of
the types of handgun ammunition used by the United
States Army?
A. , Yes,. I do.
Q* Do you know, based upon that background,
whether the United States Army uses hollow-point
ammunition?
A. No, they do not. However, they use
bazookas, mortars, recollers blockbusters, bombs,
atomic bombs. I don’t see the analogy, Mr. Days.
I'm not trying to draw an analogy here,
Mr. Coletta. I ’m just; asking the question and my
question is, once again answered by your statements
that the army does not use hollow-point ammunition
in handguns, is that right?
A. • That’s correct, as far as I know.
Q. Do you have any knowledge of why the
army does not use expandinr hollow-point ammunition
in handguns? ,; .
A. I would assume that it was in an attempt
to more or less abide by the provisions that you have
^10 501
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1 read
■ c 2 Q. ^̂ ât pro visions that I have read?
.. i 3 A. In the Hague Convention.
' 'i
j 4 MR. DAYS*: We have no further
..-1
5 questionsof this witness.
6 THE COURT: All right, sir. You
7 may cross.
' i ■ • ‘ 8 CROSS EXAMINATION
BY MR. KLEIN:
1 9
; /': / 10 Q. Captain, did the Hague Convention outlaw
; 11 the use of atomic warfare, recoiler rifles, bazookas
1 12 and mortars?
13 A. No, sir, it did not .
1 ni11 14 Q. You were referrltig I think, in response
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15 to a question by Mr. Days v/lth regard to some
ii 16 comments, findings, research, et cetera, done by
i 17 Dr. Vincent J. DeMayo, is that correct, sir?
18 A. Yes, sir.
19 Q. To your knowledge has he written anything
■i}' f 20 relative to the use of hollow-point pistol ammunition
1
21 and its effects?
. <
4 22 A. Yes, he has .
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i 23 Q. I'm going to hand you a bulletin from the.
24 well , it is from the PWC, >?hich I believe is the
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A. Yes, sir.
Q- And ask you if you can identify this,
please, sir.
A* Yes, sir, these are bulletins that are
produced by the International Association of Chiefs
of Police.
Did you receive those or did you have
access to that?
A. Yes,sir, I do.
Q* Well, do you get it because you seek it
out, or does it automatically come to you?
A. We subscribe to it.
Q- All right. Now, is there an article
in that particular issue, the bulletin, by Dr.
DeMayo relative to hoHow-i'oint ammunition?
A. Yes,there is.
Q- May I refer^you to, I think the article,
begins on page 1 and it is continued over to page
6, and I ’m particularly interested in the paragraph
that I ’m pointing to right now. Would you refer
to that, please, sir, and ,1 ust tell us what that--
Yes, sir, it says, "there are a number of
myths about hollow-point pistol ammunition. These
myths tend to impart a bad reputation to this type
of ammunition. First it should be said that .38
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1 5Special hollow-pointUullets do not mutilate organs
or destroy them any more than their solid-nosed,
all-lead counterparts. The wound in the skin, as
S'S those^in the internal organs, are the same
^n appearance for both types of ammunition. One
cannot examine the wounds in a body and say that the
individual was shot with a hollow-point bullet
rather than a so]3d lead bullet. No organs are
reduced to "chopped meat" by a pistol bullet. The
second, often quoted myth is that hollow-point
bullets fragment or "blow up" in the body. This
is false. Fragments may break off a hollow-point
bullet if it strikes a' bone, but this is also true of
\solid lead bullets. To repeat, hollow-point pistol
bullets do not fragment in the body."
Q. Do you know of your own knowledge. Captain
Coletta, whether or not other police departments
throughout the country use hollow-point bullets as
part of their ammunition?
Yes, sir, they do.
Q. What about the FBI?
A. Yes, sir, they do.
All right. You know this is of your
own knowledge, is that correct?
^ . Yes, sir, I do.
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166
be true, based on whatQ. V/ould it net
V
Dr. DeMayo says and what your studies indicate to
you, that really the determining factor about the
damage that the bullet .does, whether it be hollow-
point or whether it be a so-lld or round-nose is
where it strikes or what part of the body it
penetrates or strikes?.
A. Yes, sir, this is a critical significant
value where it strikes. It is very significant.
Q. All right. You are saying this, based
upon your own observation as well as what you had
^leaned from your studies on the subject?
A. Yes, sir.
* Let me get right down to the basic
question. You said that you made certain studies
and you showed some slider; to the court of what you
made of relatively different types of ammunition?
A . Y e s , s 1 r .
• I think you also said, did you not, this
is predicated by some measure or at least inquiries
or requests or even demands by the union of police
officers because they were concerned about the
stopping power, so to .speak, of the ammunition that
they were previously using which was the round-nose
ammunition as opposed to the hollow-point, is that
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correct?
A. Yes, sir.
Q* And you did conduct certain studies
and did conduct certa.i-n tests, did you not?
Yes, sir.
Is that what prompted you to conduct these
studies, there were concern by the police officers
about the stopping power of the ammunition that
they were using at the time?
A- Yes, sir, this is one of the significant
facts that prompted the study,
Q* And you finally concluded that you
would change ammunition or you recommended that the
ammunition be changed, is that correct?
Yes, sir.
Yours was only a recommendation?
A . Yes, sir.
Q- Who had the final say-so as to whether the
ammunition would, in fact, be changed?
. Chief of police.
Chief of police. O.K. Do you know
whether or not they took your study into considera
tion in making that decision?
Yes, sir. I'm sure that they did.
Why did you recommend the change. Captain?
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It followed
168
.n incident where we had aA-
police officer killed and I had read about other
'* >^.police officers being killed throughout the nation
^̂ ue to the .fact that the round-nose overpenetrated
and did not stop an assailant from killing the
officers. There are documented cases that are on
file in a number of places, the AELE, Americans for
Effective Law Enforcement have documented a number
of cases. I know of in Memphis, as I said, a
police officer was killed when he was confronted by
a mental patient, I guess he was, and this person
killed five citizens, and v/hen the police officers
attempted to stop him the police officers shot him
three times and yet he still delivered a fatal wound'
to the police officer. I can recall in around 1966
another case where, at Claybrook and Madison, I
believe it was on the lot of Ed's Camera Shop, where
a person, another mental case, evidently, had a knife
and attacked a police officer and I think he was
shot some numerous times, I forget how many, and yet
it did not deter him. He later died, but it did not
stop him fromattacklng the officer with the knife.
This and similar cases throughout the nation that
I have read and always it indicates that the round-nose
it just does not have-the capability of being able
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to stop, someone. Novfĵ I'm certain that we are in
no Utopia, and I'm certain that the, quote, ideal,
absolute cannot be attained. What we are trying to
do or what we tried to do with that study was to
'̂ind something that would insure that our officers
were protected. We owe them that responsibility,
and that innocent people on the streets would be
^®tter protected. I think we owe them that respon
sibility, and any way that we can accomplish this
within the bounds of reasonableness I think that we
should .
Throughout my readings, which have dealt
'̂ ith a number of articles, Joseph Ury, armament
consultant, IPC project managment, he has a number of
things to say. Just as Vincent DeMayo, Charles Wilbur
has something to say about it, he's a professor in
the Department of Sociology and Anatomy and Pathology
at Columbia University, Ervin K. Honor at the
University of Indiana had something to say about it.
The AELE publication has something to say about it,
all of my readings have indicated the same things
that certainly the round-nose is not sufficient and
that certainly the- hollow-point or expanding
bullet does, in fact, create a greater stopping force.
None of them would assert that it was Inhumane or
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that it was excessive|^ecaur,e we are talking about
the low end of the spectrum on a ballistics scale.
If we were to take into account the whole scale,
take into account the whole, not a handgun, but a
rifle, shoot a projectile 3300 feet per second and
produces 130q foot, pounds of energy, which is far
in excess of what police handguns are capable of
delivering, so there are a number of factors and
also in all of these studies, and it has been my
observation that the point that must be addressed
also is the fact that four points cannot be measured,
while we can measure velocity, while we can measure
kinetic energy, we can measure your possible
cavitation, we cannot measure the mind with the
intensity to hate or avenge, you cannot measure the
ability of the mind to be anesthetized by alcohol
or drugs or narcotics, we can't measure or register
the fact on the man that he is Injured and most
stop or may die, and we cannot measure the fact of
the mind's drive to get away or to attack, to be
frightened beyond the point of performing superhuman
170.
feats
MR. DAYS: I observe that that
document he's been reading from, if
he is in fact reading a statement from
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1 171
that particular document, that document
should be Introduced Into evidence.
If he's simply using It for purposes
of refreshing his recollection we have
no objection.
THE COURT: I will ask that
whatever is utilized be made available
to counsel so that he may be advised
and counsel may inquire as to the
basis of whether this is an Independent
statement or whatever in respect to
these matters.
(By Mr. Klein) Captain, again when you
decided or made your recommendation as to what type
of ammunition should be used, this, of course, had
to be across the board', is that correct?
A. Yes, sir.
You couldn't give one type of ammunition
Q.
Q.
to another set of officers, another type to another
set of officers, one might be apprehending fleeing
felons and others might be in a different situation
MR. DAYS: Objection to the form,
I feel that it is leading. Your
Honor.
THE COURT: I feel that the
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172
objection well taken, Mr. Klein,
even though you are now examining,
the Court rules that this is a
defendant witness and despite the
^act that he is called by adversary,
as an adversary party witness, that
you are notentitled to cross
examine In the usual course.
MR. KLEIN: Your Honor is
declaring him to be a defendant
witness?
THE COURT: Yes, sir, I'm
ruling that in his status as an
inspector with the Memphis Police
Department and the Memphis Police
Department and the City of Memphis
being defendants, that presumably,
unless it were shown otherwise, and
the court is not inferrirg by that
categorization that the defendant
is not in a position or posture as
an expert in his area. I'm simply
ruling that by reason of his status
with these defendants that you are
not entitled to cross examine him in
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the usual context.
MR. KLEIN: Very well.
THE COURT: I'm not saying that
you can't examine him, Mr. Klein, I'm
Just saying that you can't cross
examine him.
MR. KLEIN; Well, Your Honor,
again, all I can do is note my
exception to Your Honor's ruling under
the rules that is not technically
needed, but I would take the position
that he has been offered by the
plaintiffs, and in so doing making
him their witness, and I have the
right to cross examine him in that
context, but otherwise I wouldn't have
done so, and if it is Your Honor's
ruling I will not cross examine.
Q. (By Mr. Klein) Captain, the ammunition
that was issued, of course, was only one kind?
^ • Yes, sir.
Q. Is it feasible to issue more than one
kind of ammunition?
A. No, sir. As a matter of fact, inter
changeability of the ammunition is a significant
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factor^ We never knew when a supply may be exhausted,
and, of course, it is a factor more than from
usage. It is also a factor from budgetary consideration
and whatever, and it is also a factor because of the
fact that we are sure that whatever we select must
be one that we are familiar with that we can at
least have sufficient knowledge to know what we are
talking about when we speak about it.
Q- All right, sir. Now, Captain, you were
talking about the military, and I think you mentioned
the basic weapon that the military uses is the
rifle, is that correct, sir?
A. Yes,sir.
And you made, I believe, a comparison of
the type of projectile that is shot from a rifle
as opposed to a pistol?
Yes, sir.
The handgun used by the military is what?
A .^5 automatic.
All right. Now, it is not hollow-point.
17^
is it?
A. The ammunition is not.
Q* The ammunition is not. But how do you
compare that to, say, the .38 as far as velocity
and Impact?
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A. Again basl(^figures, the formula,
mass times velocity squared over two, basic formula
would show and demonstrate that the heavier
a projectile, with the 'velocity being the same,
thatthe heavier projectile has more kinetic energy.
Now, that is with the velocity being constant, and
the military uses that heavy projectile, 230 grain
full metal Jacket, to exert its superiority over
the .38 special and which they did use around the
1 9 0 0 's. And the reason that they switched to the
semi-automatic handgun, because of the fact that
the tribemen in the Philippines were performing
feats, such as I have described, killing the soldiers
and officers that were armed with the handgun and
the .38 Specials would not stop them, so the
military then had to test for new ammunition, had
made a test to determine v̂ hat would be more suitable
and feasible. At that time hollow points, as we
know them today, were not heard of. As a matter of
fact, -it wasn't available, I don't think, until
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Q. All right. What is the stopping power,
say, of the .45 as compared to the .38?
A. It is greater. I don't know the exact
figures.
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practical for the Memphis
Police Departmeat to carry a .^5 as opposed to a .38?
> sir, it:is not. I would consider it
a hazard because of the fact that it is a semi
automatic handgun, and there are a number of
reasons why I could say that, because of the fact
that it must be carried with a loaded round in the
chamber, and in order to be easily available and
ready for instant use, the hammer must be cocked,
because with a semi-automatic you must work the
mechanism of the gun in order to strip a cartridge
from a magazine,.which is loaded up into the stocks
of it or the grips of a gun. The slide must strip
it from thez'e and place it into, the chamber for the
first shot to be fired, so it would require a
physical dexterity that under psychological stress
of a confrontation I believe that a police officer
may make a wrong move and thereby be injured as a
result of it. In addition when we speak of safety
with an automatic weapon, v.'lth a hammer being cocked
and loaded round in the chamber, it has a
mechanical safety device. Anything that is
manufactured by.man is.subject to malfunction. If
the■device should malfunction, and it has happened,
then an accidental discharge could result.
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1 In the military I
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attached to a guard unit. We
had a number of accidental discharges, and I'm certain
that a certain of them, no matter how well their
training, would occur among police officers, too.
Then, again the semi-automatic handgun relies upon
its ammunition to function. If you were to have
a misfire for some reason the cartridge did not go
off, and this happens on occasion, too, the semi
automatic would not function without again physically
extracting that particular round and getting a
fresh one into the chamber. However, with the
revolver, by merely pulling the trigger the
cylinder revolves and talces that one out of line
and brings a fresh one up, so for those reasons
I do not believe that semi-automatics would be
feasible for police.
What about the accuracy with a .l}5 as
opposed to a .38?
A. In order for reliability so the gun would
perform every time, the military uses or does not
use any device or whatever to make the gun accurate
per se. Now, When we are speaking of accuracy we
are talking about inches, and the military .45
is very loose, as a matter of fact, which greatly
affects its accuracy. 7t has to be loose in order
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for reliability to be present.
Are you saying that it is not as accurate
as the .38 as far as t'he man that is carrying it
and as liability? /
A • Yes, sir.
Captain, getting to the training program
at tha.academy, I think you testified yesterday
relative to your role at the training academy?
A . Yes, sir.
And do you recall whether or not you were
out there during the 36th, I believe it would be
the 36th session, which would run from July the 30th
of '73 to August 3rd of -- well, beginning July 30th,
I think, running through September of ’7 3?
A- Yes, sir, I was there.
All right. I'm going to hand you this
document and ask you if you can identify it?
A* Yes, sir, this is a curriculum. It
appears to be the curriculum that was used for that
school.
yo'i know whether or not officer Hymon
■ j S-ttended the'36th session or not?
A • Yes, sir, he did .
^ • V/hat was the whole curriculum that was
used during that particular session, was it not?
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Yes , sir. i
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Q- It shows the different hours, classes and
instructors, is that correct?
A.
Q.
A.
Yes, sir. •
Did you follow that curriculum?
As closely as nossible.
MR. KLEIN: Your Honor, I ’m
going to move that that be made
an exhibit to his testimony.
MR. DAYS: No objection. Your
Honor.
THE COURT: All right, let it
introduced.
THE CLERK: Number 20.
(Whereupon, the said document
referred to above was accordingly
marked Trial Exhibit 20 and received
in evidence.)
Q* (Hy Mr. Klein) Now, Captain, are you
familiar with the firearms review board?
A Yes, sir, I am.
What is your understanding of the function
of the firearms review board?
A- It was Instituted to review those
cases wherein the officers discharges his weapon;
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Q.
A.
Q.
to make recommendations to the chief whether
disciplinary action should be taken or whether the
officer was justified.
Q* All right. Do you know when this was
implemented.
A. I believe it was February of 'JH.
February of *7̂ 1?
Yes, sir.
Now, does that mean in every case where
an officer used his weapon that he was subjected
to the firearm review board and it would convene?
A. Yes, sir, every case, accidental discharge
on duty, off duty or whatever, except, of course,
for hunting or target practice it did not Include
that.
Q* All right. Now, how deeply would the
board go into the matter when it would review it.
Captain?
A. They would try to ascertain the fact to
see if the officer was justified, and that, of
course, would require quite a number of inquiries.
One of the range personnel is assigned the task of
screening the scene of physically observing the
scene to report to the board of the physical
characteristics of the incident, locations, and then
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the board takes that j^nto consideration as well as
the statement of the officer, as well as his testimony
or when he appears before it.
Q. All right. ..Does the officer himself
actually appear before the board?
A. Yes, sir, he does.
Q Do you know whether such a board convened
to study the situation involving officer Hymon in
the shooting on October the 3rd of 197^ of Young
Garner?
A.
Q
Yes, sir, it did.
Did you sit on that board?
Yes, sir, I did.
MR. DAYS: Your Honor, I would
object to this document as being
self serving, since it was prepared
by the defendant in this case.
THE COURT: Mr. Klein.
MR. KLEIN: If Your Honor
please, they have offered testimony,
of course, over my objection from
others, from others who have testified
about the situation involved here
whether the officer acted reasonably
01’ not under the circumstances, and
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182
hypothetic^^ questions were posed to
these men about the situation, and
as I say the court, over my objection,
and as I understand it, the court
is actually reserving its ruling on
that and did allow them to testify.
Now, in this case we have a review
of the police deuartment of this
shooting, as is their policy, and
wherein they go into certain detail
to determine what action, what happened
and whether or not the action was
justified, and that their determination,
I haven't asked Captain Coletta, I
assume it was based upon the existing
general order at that time, which was
in effect, plus the state statute that
was in effect, and their making a
determination as to whether or not
the officer’s action was justified.
I think they had the same right where
these other experts. Incidentally
one of the other experts happens to
be a member of the Memphis Police
Department and he was allowed to
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183
testify, arij/ so for the same reason
X think that this gentleman can
testify what' the board did when they
went into more detail actually and
made a full investigation of the
matter in compliance with the
department policy.
MR. DAYS: V/e would continue
our objection, Your Honor, unless
Mr. Klein can establish exactly
the format of the hearing, what
was required, who testified, what
types of evidence was available in
order to -- and whether the persons
on the board possessed any expertise
with respect to the firearms under
the circumstances.
THE COURT: I'm going to
sustain the objection at this time
as to the report of any firearms
review board. I will permit, if
there is aproper predicate or a
further predicate laid, reconsidera
tion as to whether or not such a
reuort should be admitted into
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184
evidence. permit counsel to
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ask whether or not an investigation
was conducted by the appropriate
agency of the- police departm^ent and
whether or not any disciplinary
action was taken with regard to
the defendant as a result of that
investigation without going into the
report itself, but at this time I
will sustain the objection subject
to any showing as to whether or not
that has the category or should have
the same category as any other
expert testimony dealing with the
hypothetlcals that have been
presented previously.
MR. KLEIN: All right, Your
Honor. I would say this, I would
offer Captain Coletta as an expert
to the same extent that Inspector
Barksdale was offered as an expert,
to the same extent that Chief
Jones with the Shelby County
Sheriff's office was offered as
as an expert.
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THE CCl
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185.
RT: Well, Mr. Klein,
I ’m not ruling on that question.
These others were asked certain
questions with respect to what they,
to hypothetical situations as to
whether they had gone out and
^^tually reviev.'ed the scene and
other matters, so I will rule on
your tender or your offer based
upon whatever questions that you
may ask the witness.
Q. (By Mr. Klein) M l right. Captain, you
testified previously about your role at the
training academy in respect to the firearms, is
that correct?
A. Yes, sir.
Q. You have been a t t h e academy now
i n s t r u c t i n g f o r how lo n g ?
A. For ten years now.
Q. . All right. And you have also, in
conjunction with the legal advisor, who I believe
gives the legal Instruction at the academy as
per the program, you also instructed them on
when to use firearms and when not to use firearms,
is that correct?
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^ • Yes, sir.
your Job and part of your
duty, correct, sir?
A* Yes, sir.
right. Now, when this matter came
to your — let me ask you, when didthis matter first
come to your attention?
A* The matter?
^ Of officer Hymon.
A. Hymon — immediately following the
occurrence of the incident a report is sent to me.
All right, is sent to you?
A- Yes, sir.
All right. What is the nature of the
report that is sent to you?
^ firearms use report. It outlines
a significant number of items of data regarding the
use of firearms, weather conditions, lighting
conditions, there are a number of things.
right. About this particular incident,
is that correct?
A. About every Incident.
particular this incident was also
Included, la that correct?
A* Yes, sir.
186
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Q. All right. as an investigation made of
the shooting by the police department?
A.
Q.
A .
Q.
A.
Yes, it was.
Is that normal procedure?
Yes, it is .
Who makes that investigation?
Range staff, one of the persons at the
range or myself, whoever Is available at that
particular time.
Q. Do you remember v'hether you did it in
this particular incident or not?
A. I don't think I made the scene on this
one .
Q. All right. Then what other information
is available to you as a result of this incident?
A. The statement that the officer makes,
of course, is available, and any data or reports
which the police department may collect.
Q. All right. Is it routine that the
police department Itself, the homocide squad or
assault bureau, crime scene bureau makes an
investigation?:
A. Yes, sir, that is their responsibility
to make crime investigation regarding the
situation as it occurs.
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Q.
188
. i^nd Is that made available
to you?
A* Yes, sir, it is.
• And it was made available to you in this
Particular Instance involving officer Hymon?
A. Yes, sir.
Did you review that information?
i ’fn sure I did as well as with the
entire Firearms Review Board.
Aod what was presented to the entire
Firearms Review Board?
The fact that Officer Hymon received a
call — I don't remember all of the details. I
don't remember --
MR. DAYS: Your Honor, objection,
if he doesn't recall the details I
don't think it is for this witness to
speculate.
MR. KLEIN: I'm not asking him
about the details. I'm asking what
was made available to him.
MR. BAILEY: In addition to that.
Your Honor, it is heresay because the
person who appeared before the review
board is not here subject to our cross
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examination and is outside the
courtroom testimony.
THE COURT: I will sustain
the objection except to the extent
that if you are asking the witness
what is the procedure, what is the
standard, what is the operating
technique of the board, I will
consider that, but I will sustain
the objection to reciting what
may have been the report or what
may have been the substance of
investigation by some other
party. To the extent that you are
asking the witness what is the
routine,-what is the procedure,
^hat program, as it were, that such
a' board followed, then you may ask
in that regard.
Q. (By Mr. Klein) Let's continue with
that. I think you had gotten to the point of the
investigation that was made as part of the procedure
then the board itself, when you convened, what
information is made avallaHe to the board?
A. All of the Information that is
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available by the police derartment.
That again is what?
A* The homoclde report or whichever bureau
makes the investigation, The firearms uses report,
the statement of the officer and then, of course,
the appearance of the officer before the board.
Q. All right. Then the officer himself '
appears, is that correct?
A.
Q .
A.
Q.
A .
Tes, sir.
Does anyone else appear before the board?
Other than the officer himself, no, sir.
All right. And who sits on the board?
It is composed of a group of police
officers. The exact composition is outlined by the
general order. I believe it must be seven patrolmen
that appear with so many years experience, a member -
of the range staff, it designates who the
chairman will be, it'designates a recorder who must
keep the records and It is outlined in that particular
general order which I.don't have in front of me.
® right. -And then you hear all of that
and review all of that and you make your decision,
is that correct, sir?̂ -̂
A. Yes, sir. ,.
All right. And once you make your decision
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what da you do with t>ftat?
A. The decision is sent forward to the
chief of police.
Q- All right. Now, in this case was any
disciplinary action taken against officer Hymon?
MR. BAILEY: Your Honor, I know
your honor indicated that Mr. Klein
may explore the area as to whether or
not disciplinary action was taken.
We submit it is Irrelevant and
whether or not disciplinary action
was taken by the witness to the City
of Memphis, the point being that it
has no relevancy on the evidence that
has been produced in this hearing.
We don't know what the evidence that
was presented to the review board
^P°n which the city made its judgment
as to what action would be taken,
disciplinary action may be totally
different from the evidence that has
been produced during this trial, and
for that reason v/e object.
THE COURT: I think the objection
primarily goes to the weight, faith
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1 and credit jOf whether or not
disciplinary action was taken,
and I'm going to overrule the
objection. . _
I have still not ruled that
the report is admissible, but I
will permit the question that has
been objected to as to whether or
not disciplinary action was taken.
Q. (By Mr. Klein) Was any disciplinary
action taken?
A. Y e s , s i r . .
Q. If disciplinary action was taken, who
would be ti-ie one to administer that disciplinary
action?
A. In this case the chief and director.
Q. Is that the person whom your report,
firearms review report is sent?
A. Yes, sir. Of course if I may add, if
I'm in order, that all shooting cases are submitted
to the Grand Jury, also.
MR. DAYS: I would object and
move to strike, Your Honor.
THE COURT: I will sustain the
objection-as not being responsive
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to the quedyion.
THE WITNESS; I apologize.
MR. KLEIN: May I ask the
question?
THE COURT: I will ask the
witness not to respond until I
have heard the question.
MR. KLEIN: Let me say this
in all candor to the court, I was
going to get to that in my proof
at one point. I know the answer was
not responsive to a question, and
if Your Honor tells me not to ask him
I won’t ask him.
THE COURT: I'm not saying --
you may askihim, I will ask the
witness not to respond until I have
heard from the plaintiff.
Q- (By Mr. Klein) All right. Was the
matter submitted to the Shelby County Grand Jury,
Captain?
MR. DAYS: Objection, Your
^onor, I think It is clear that the
witness is not,- he has no authority
of v/hether a Grand Jury is convened
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and the prc^ess whereby that is done
THE COURT: Without ruling on
that objection, the question was asked,
.whether or not the matter was presented
to the grand jury. The witness may
respond if he has personal knowledge,
not as to what was done, but if he
has personal knowledge he may respond
to the question, was the matter
presented to the Grand Jury.
MR. DAYS: If I may continue my
objection, Your Honor, to any line
of questioning with respect to what
was the practice in situations of
this nature.
THE COURT: Again I*m instructing
that the witness will respond in that
respect as to whether or not he has
knowledge as to whether or not the
matter was or was not presented, not
as a matter of practice and not as
a matter of procedure. All right.
Q* (By Mr. Klein) Do you have such knowledge.
Captain Coletta?
Well, I don’t know how to answer that
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really. It must be,|^3ecause that Is policy. Now,
I don't know how else, did I personally present _
do I know the man that personally took it to the
grand jury — no, I don't.
MR. DAYS: I move to strike.
Your Honor.
.'THE COURT: All right, sir,
I'm going to sustain the objection
insofar as this v;ltness Is concerned.
I understand that this witness has
testified that as a matter of
policy the matters are generally
presented, but I'm sustaining the
objection to any assumption or
presumption by the witness or the
court based on this witness's "
testimony with respect to grand
jury action.
MR. KLEIN: That is my problem,
f
Your Honor.
(By Mr. Klein) All right. Captain, let
me ask you this question. You say you reviewed
the reports, all the reports that were submitted in
connection with' this matter?
A . Yes, sir.
Q
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196
Q. And that is part of your Job as a member
of the review board, is that correct, sir?
Y e s , s i r .
All right. And assume we have the situation
A .
Q.
o n O c t o b e r t h e 3 r d , 1 9 7 ^ w h e r e i n o f f i c e r H y m o n i s
c a l l e d t o t h e s c e n e o r c a l l e d t o a s c e n e , w h i c h
t h e s c e n e h e ' s c a l l e d t o i s 7 3 7 V o l l e n t i n e , w h i c h
i s a h o u s e r i g h t n e x t d o o r a n d t o t h e w e s t o f a
h o u s e d e s i g n a t e d a s 7 3 9 V o l l e n t i n e . A n d a s s u m e
t h a t t h i s e x h i b i t 6 , w h i c h h a s b e e n i n t r o d u c e d i n t o
e v i d e n c e , i s a s c a l e m o d e l o f t h e h o u s e a n d t h e
b a c k y a r d a n d t h e y a r d o f t h e h o u s e b e h i n d i t a t
7 3 9 V o l l e n t i n e .
A . Y e s , s i r .
Q. A l l r i g h t ! A n o f f i c e r g e t s t o t h e s c e n e
a n d h e i s t o l d b y a n e x t d o o r n e i g h b o r t h a t t h e y
a r e b r e a k i n g i n t h e h o u s e , m e a n i n g 7 3 9 V o l l e n t i n e .
H e ' s w i t h a p a r t n e r . A n d h e g o e s b a c k t o h i s
p a r t p e r , w h o i s i n t h e c a r , t e l l s h i s p a r t n e r t h a t
t h e r e i s a r o b b e r y o r b u r g l a r y i n e f f e c t . H e
g e t s h i s f l a s h l i g h t a n d o r o c e e d s ' d o w n t h e w e s t
s i d e o f . t h e h o u s e . H i s p a r t n e r m o v e s h i s c a r f r o m
' . ■ *
' t h e m i d d l e o f ' t h e s t r e e t u p t o t h e c u r b , r a d i o s
i n a n d g e t s o u t a n d p r o c e e d s a r o u n d t h e e a s t s i d e
o f t h e h o u . s e , t h a t w h e n t h e o f f i c e r g e t s t o a p o i n t
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1 which is just beyond'^he southwest corner of the
house and at a point where he is a few feet east of
a fence, a chickenwire fence, about three to three
and a half feet high, he hears the back door slam,
and he sees a person running out of the back door
and heading for a back fence and this fence is the
one I ’m indicating here on which is the back fence
on 739 Vollentine, a chain link fence approximately
six and a half to -- five and a half to six feet
high. The officer has a flashlight in one hand and
his revolver in the other hand and when he sees the
person fleeing or running out of the back of the
house, he also notes that there is broken glass by
a window which is on the back side of the house. He
is on a call which indicates that it is a prowler
in the house. He's been directed to the house by
those people next door, which are the ones that
made this initial call to the police, the people
at the police department and at this time the subject
or the person who comes out of the back door has
gone to a point at the back fence, and this point
is right at the corner of an out building, which
would be the;; southeast corner of the out building.
The person is stopped and with his hands up on the
fence, but he is in ? stooping position or squatting
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1 position. The office^ at that point seeing the person
at the fence yells halt, police, or words to that
effect and then yells over to the partner who is
proceeding around the. east side of the house, too, •
he’s on the fence, get him, or words to that effect,
and the subject who was a.t the fence had momentarily
stopped then begins to jump or spring over the•* i
fence. The officer then takes, he has his firearm
in his left hand. He.then fires.
Now, you can also assume that officer
is not familiar witĥ ̂the neighborhood —
MR. BAILEY: Your Honor, we
are going to object to that clearly.
That was not one of the bits of
evidence that has been produced that
he wasn't familiar with the
neighborhood,.
MR. KLEIN: In the deposition
that was read of Officer Hymon as
part of their proof he indicated that
he was in a ward which was not his
regular ward.
THE COURT; Has that been
introduced to the court at this time
^nd is it a part of the proof and
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1 evidence at'thls time, and
assuming that the objection
presently is based on what the
proof and evidence has been ■
presented up to now, are you
entitled to go beyond what the --
on any assumption based upon what
the proof and evidence that has
been introduced until this point,
or are you entitled to present
further assumptions which may not
be in evidence at this time?
MR. KLEIN: Your Honor, I
think I*m entitled to present
further assumptions that may not
be in evidence, but that may be
put in evidence, provided, of
course that I later put them into
evidence. Now, if his answer is
based on something that is not
in evidence now and is not later
put into evidence, then T think
the' objection may be, should be
sustained, but T think 1 can put
hypothetical Questions to this
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'fitness baS^d on facts that may be
In the record and additionally that
may not yet be in the record, but
may be introduced at a later time,
provided, of course, that they are
later Introduced, but I will say
this for purposes of my question,
if that is an objection I will
withdraw that assumption --
MR. BAILEY: Your Honor, we
don't have a jury, and for that
reason I will vjlthdraw the objection.
THE COURT: All right, sir.
You may proceed.
Q. (By Mr. Klein) (Continuing) Further
assume that the officer did not knov? what was .
behind the fence, that it to him appeared to be
grass, brush and some growth and that it was dark
in the area behind the fence. And as I point out,
further assume that he did fire as the subject
was vaulting over the fence after having previously
told him to halt or to stop, and that he hit the
Subject in the head and the subject is draped over
the fence where he's'later removed. Now, my
question to you, Captain, — oh, one other assumption
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1 that the area is darkywith the exception of a light
that had been turned on at the porch which is just
adjacent to and west of the house at 739 Vollentlne.
Now, based, using those assumptions as
the fact, based on your knowledge of what is taught
at the academy and in your opinion as to what was
reasonable under the circumstances, do you, in your
opinion, was that officer justified at that point
in using his firearms?
MR. BAILEY: Your Honor --
THE COURT: Just a minute.
MR. BAILEY: It is not really
an objection as it is a point of
clarification. Hr. Klein prefaced
his hypothesis with the observation
that the officer himself was familiar ,
with the case as information was
supplied to him as a member of this
review board, and, of course, that is
material and element outside the
record, and I just wanted to be sure
that the officer in his opinion is
not using information outside of the
record as elements in terms of making
his, in render'ng his opinion.
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THE COi^T: T think the point of
clarification is appropriate, Mr.
Klein, that' you make it clear as to
whether or not the witness is
responding based on the assumptions
that you have specified or whether he
is responding based on mixed assumptions
or other matters that may have come to
his attention, and I think that you
should clarify that matter before the
witness responds.
Q. (By Mr. Klein) All right, sir. I want you
to understand that I'm asking you this as a
hypothetical based on Just what I'm presenting to
you this morning or Just now in this question and
not based on what you-knew previously or the
i .^Information that you may have gained as a member of
the police department or in connection with your
deliberations of the matter as a member of the
firearms review board, do you understand that, sir?
A. Yes, sir, I do.
Q. All right. Now, my question was, in your
opinion was the officer Justified in using his .
firearm under these circumstances?
202
A . Yes, sir, I' think he was.
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j
Q- All right, y/ir. Why do you say that?
A- I say that for the following reasons, that
number one, from what you posed he saw broken glass,
he had information that' the house was being
burglarized, he did see someone exit, emerge and
exit in a fast manner or exit from the rear door,
and I believe you said ran across the yard and
crouched down by the fence acting as though he was
hiding or attempting to be concealed --
MR. DAYS: Objection, Your honor,
that was not part of the hypothetical.
He said crouched over.
THE COURT: I will overrule the
objection. He may state the basis.
MR. DAYS: Your Honor-, if I may
continue just briefly.
• 5' THECOURT: Yes, sir.
MR. DAYS: I think the hypothetical
described the position of the deceased
and did not characterize the motivation
behind that particular position and
I think the witness is adding on in
that respect!.and it is inappropriate.
THE COURT; I'm not, in overruling
your objection, I'm not overruling in
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the characti^izatIon of the assumption,
I ’m overruling that the witness is
explaining his answer and part of what
the testimony*will be, whether the
answer will be based upon the assumed
question has been made or not, so I'm
overruling your objection. You may
proceed.
Q. (By Mr. Klein) Go ahead.
A. The officer is physically barred from the
area by a fence so that he can't get to him. The
officer has shouted to his partner for help, and
evidently that help did not arrive. The officer
saw that the subject was attempting to scale or
vault the fence and that in the event that he should
succeed then probably-he would escape and feel like
that -if'he could see,'" that in the light, which in
a city you stated it was dark, but I know that in
a city that light is reflected and that certainly
if he'could observe, that he could observe the
fact that the man was scaling the fence and
attempting to escape, and that in my opinion, should
he have been successful in scaling the fence, I
don't think that the ‘officer would ever, have caught
him, so I think he was justified for those reasons.
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1 Q* Well, is Ij/a decision that an officer
has to make in a- second or split second, would
that be a fair characterization of the circumstances?
A. Yes, sir, I think it would.
Q* And is the officer called upon to use
best judgment under those circumstances?
205
A.
Q.
A.
Q.
Yes, sir, that’s correct.
Is that what he’s taught at the academy?
Yes, sir, it is.
Let me go on to another subject if I
may. Well, I will talk about the -- are the
principals which are taught at the police academy,
are they consistent with v;hat you have learned
in your research, your study, your attending of
various seminars, the FBI academy, are these
principles which are taught here at the Memphis
Academy similar to those that are taught elsewhere?
MR. DAYS: Objection, Your Honor,
to the leading nature of the question.
THE COURT: I will again, Mr.
Klein, ask you to phrase your questions
in such a manner that an answer is not
^’̂ ggested in the form, and Inherent in
that is that not to phrase a long
question but is or is not that right,
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■'=>'<: t h a t t h e „ i . „ .
« l t n e s s t n e f f e c t
r e s p o n d i n h-tc
t h e a t h a na n s w e r b e
u e s u g g e s t e d .
KLEIN- T» .
e x n e a ,
® * P ® d l t e t h e tiatter- j e
t h « r " l e a d i n g
t h e n r w o n ’t d o I t .
fBy Mr. Klein) Let „
C a p t a i n . T h
P ^ i P P l P l e a that y o u the
i n o t h e r w o r d s , t h e r e I 3 ^ f ^
h s s u m e , t e l l “ “ n d a t l o n f o r i t , 1
’ ” S W h a t t h a t I s ?
Th e re is a u ^
e n f o r c e m e n t o f ^ ‘' " o w l e d g e a m o n g l a w
' P P u P s e , W h a t w e t
— i s t e n t w i t h - W h a t I c w l t h l
O f K n o w l e d g e a n d t h "
P O O h y n u m e r o u s s o u r c e s f r
o t h e r l a w e n f o r c e m e n t
u n i v e r s i t i e s f r o ^ s e n c l e s , f r o m
T r o m p o l i c p ct ^
x c e , s c i e n t i s t s t
- l » a t p a r t i c u l a r f i o i , J f
^ " O K l e d g e t h a t w e t e a '
o o n s l s t e n t . P r o P a h i y t h e 1 ^
" •• » • " ■• -......
p o l i c i e s and P r o c e d u r e s and t h a t w
IPom an.y o t h e r a g e n c y . 5 3 - 1 ‘ - ^ y «>uch
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1 Q* All right.^Was there anything inconsistent
that you taught in regard to lethal force than that
that you learned at the FBI academy?
A. No, sir, I don't know of any inconsistency
at all.
MR. KLEIN: Your Honor, with
^egard to the firearms review board
findings, which Your Honor said would
not be admitted, I would like to have
this marked for identification.
THE COURT: It may be marked for
identification only the next exhibit
number 21.
(V/hereupon, the said document
referred to above was accordingly
marked Trial Exhibit 21 for identifica
tion .)
MR. KLEIN: That's all. Your
Honor.
THE COURT: Anything further of
this witness?
MR. DAYS: Yes, Your Honor, a few
brief questions.
207
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- - -j
\
REDIRECT EXAMINATION ' i
BY MR. DAYS; ^
208
Q. Mr. Coletta,' in your direct examination
we were discussing, were w'e not, the effect of
kinetic energy insofar as certain types of wounding
capacities Involved?
Yes,sir.
Q* ^nd we also talked about the relative
Incapacitation index, is that right?
A . Yes, sir.
■Q.' And I believe in the examination of you
by Mr. Klein you made some reference to the .45
automatic weapon used by the Army?
A . Yes, sir.
Q. Can you tell me v/hat type cartridge is
used by the Army in the .45 automatic?
A. .45 ACP 230 grain metal case projectile.
Q. Is that produced by the Remington Company?
A. Produced by a number of companies.
Remington which is one of them.
Q. Let me show you a document that you were
shown earlier, the article by Dr. DeMayo that I
believe you said that you recognized and were
familiar with?
A . Ye^ sir.
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Q. Does that ̂ ndicate anythlnr: about the
I I
kinetic energy of this 230 grain cartridge used by
the Army in a .^5 automatic?
A. It indicatea the 230 grain metal jacket,
which the Army may have their own specifications,
I don’t know that, I don’t have that knowledge if
it does, 230 grain full metal jacket projectile.
Q.
A.
What is the kinetic energy?
plus or minus I8 , excuse me, 117.
Q. 117?
^ ' ^es,sir.
Q.' How does that compare to the kinetic
energy of the I58 grain?
A. 158 grain round-nose I assume that you
are talking about?
Q. That's right, the one that we were
discussing earlier?
A. That’s right, 72.
What is the 125 grain Remington?
A. . 2 3 9 .
*3. So the Army.^5 is about 117 kinetic
energy there in foot pounds?
A. That’s correct.
Q.
A .
And the 125 Remington is 230 something?
Yes, sir.
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210
U,Q, All right. We were also talking about
the LEAA study that was done on the wounding effect
using a relative incapacitation index. Can you
indicate, directing your attention to table 2,
whether that indicates anvthing about the relative
incapacitation index of the same projectile that
we were discussing, that is the 230 grain?
A. Yes, sir, bullet ID number 110 indicates
it is a .^5 automatic 230 grain full jacket
Remington projectile with an RII of 6.7.
Q. 6.7. Now, directing your attention to
I • « ̂ >
the table 1, can you comt^are that RI index with a
.45 230 grain with the ^5B grain, for example, that
we have been discussing?
A. Table 1 are you speaking of?
Q . Yes .
A. All right,' sir. Which projectile?
Q. The 158.
A . The 158 was 8.0.
*
Q. And the 110 was what?
«r
A. And the 110 was 12.4.
Q. And t h e 1 2 5 vras w h a t ?
A.
Q.
2 5 .5 .
Mow, you indicated that you have been
in the Armv. Do you know of any reason why the
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1 demands of a handguryin the army would be different
from the demands of a handgun used by domestic
police officers?
A. Yes. I was 'in the army, I was In the
service. I was In the Mo.rlne Corps.
Q. Well, based upon that service and based
'̂ POn your readings and experience, do you know of
any difference In terms of demands that would
justify a difference In the type of handgun and
the type of ammunition used by the army as compared
with the handgun used by police on a firing range?
A. Yes, I would, fear differentiate the use.
Q. How would you r.o about explaining the
reason of that differentiation In terms of different
use?
A. The standard Issue weapon of the police
officer Is the handgun. The standard Issue weapon
for a serviceman Is his rifle.
Q. All right. Let's take the situation where
the handgun has to be used by an army officer and
a handgun that has to be used by a police officer.
Is there any difference in terms of the use of the
handgun in warfare as compared to the use of a'.i
handgun In a domestic setting?
A. In warfare a handgun is not primary, and
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1 I don't know whether|4_ how much it Is even used
'\Jany more. I can't answer that question, saying that
you are asking, and that is there a difference in
the usage, I can't Intelligently answer that .because,
as I. say, when I was in'the service the basic
weapon which I was issued v/as a rifle and I was not
an officer and I was required to be proficient with
^̂ ât rifle, and a squad of men that was commanded,
by a sergeant and three or four squads of men were
commanded by an officer and each man with the
squad, which consisted of some 36 to ^8 men, were
armed with rifles.
Q* Captain Coletta, do you recall my conducting
a deposition of you in Anvil of this year?
A . Yes, sir , I do .
Q. Strike that, I think it was a little
later in June of this year.
A. A deposition early this year.
Q. Thank you for helping me formul&,te the
question.
Do you recall my asking you a similar
questlonabout the distinction between the demands
upon a police officer as compared to demands made
upon an Army officer in the use of a handgun?
A. I don't recall the exact context that
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1 we had It in. I cer^^lnly recall our conversation.
Q . Do you' recall being asked the following
question and giving the following answer.
MR. KLe In : What page?
MR. DAYS: Page 71.
Q- (By Mr. Days) "Question. Do you have
any reason to .think that the requirements for
ammunition in combat would be different from the
requirements for ammunition in a police situation,
in a domestic setting? That is, are the demands
of a person using a handgun in the armed forces
in warfare, different from the demands upon a
police officer using a firearm in domestic peace
*^®eplng?"
"Answer. The demands are totally
different."
Do you remember that question and that
answer?
A. Yes, sir.
Q . ’ Do you recall this question and the
following answer:
"Question. Cou.l.d you describe the
extent to which you understand those differences?"
"Answer. Yes. As I was taught when I
was in the Marine Corps, the objective is to produce
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1 2 m
^Irepower, In any maneuvering operation produce
firepower as a base, as a cover, as a screen to
Insure the safety of yo.ur men moving. In police, our
objective is not to produce fire power. Our objective
to stop or to neutral!-e one person without — or
maybe two or three, without endangering innocent
people. Therefore, we. must be very selective, where
the army can shoot randomly. All they have to do
is point and pull. We cannot do that. V/e must be
selective.”
Do you remember giving that answer?
I do. I will still stick to that, but that
^ot the question that you asked me.
Q- Do you recallbeing asked this question:
''Question. Is there any difference in
the extent to which ammunition used in v/arfare should
wound as opposed to the reaulrements for wounding
capacity in the police, lav,' enforcement situation?"
Do you recall that?
A. Mr., Days, you wei-e there allday. I
can't say, I'm certain that you asked the question.
Q- All right. Let me see if you recall this
answer on page 7 2 .
"Answer. Well, my understanding again
in the military, the obje'.:tive is to wound as many
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as you can, because,'^
215
or every casualty you produce,
'9
It requires two or three more men to take care of him,
therefore, you are depleting the enemy's manpower.
Our objective .is not to wound, and it's not to kill,
I might add, it's to ston them. It's that pure and
simple. Now, you are referring to a handgun in the
j and a handgun in the police, they are
totally different. The basic weapon in the military
is a rifle, not the handgun. The handgun is the
exception. "
Is that right?
I will still -- exactly what you read.
That is your testimony?
Yes, sir, I will agree to that now.
Now, in that testimony you make a
distinction between wounding and killing on the
one hand and stopping on the other, V/hat is the
nature of the distinction, Mr. Coletta?
A.
Q.
A .
Q.
A Well --
MR. KLEIN: Your Honor, I'm
going to object. I think we are
getting a litt]e far afield now.
I conceded that I did ask him about •
the military handgun, but we didn't
get into this area of testimony,
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It 13 L/omethlng that wasn't gone
Into, and furthermore, I think it
: ,lt irrelevant and in addition to
t3lng outside the realm of cross
examination.
MR. DAYS: May I be heard,
^our Honor.
THE. COURT: Yes, sir.
MR. DAY.R: your Honor, 1
think that What opposing counsel
attempted to develop on his
axamlnatlon of the witness was
something about the relationship
between the use of a handgun' in
the army and the requirements and
tho use of the .38 revolver in
domestic situations, and all i-m
trying to pursue, since that
distinction wa.s picked up from
ny examination and carried over
In Mr. Klein's examination what
really are the differences that
the army using a handgun does not
nse hollow-points, does not use
weapons of the same kinetic energy
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and does nor use weapons with the same
type ,of relative incapacitation index,
and I think that is within the scope
of redirect.
THE COURT: Well, you may ask.
I ’m not sure that the reading of the
witness's deposition is anything in
consistent with what he has testified
to, and the appropriate basis is to
ask, if you want to ask, not read,
if he says yes, that is what I'm saying
now and what I said then.
MR. DAYS: Your Honor, I think
V
that is certainly an appropriate rule
and a rule that I'm trying to abide by
but I submit that the portion that I
read from the denosltlon went into
the wounding, the difference in
wounding requirements of the army
as compared to domestic police
officers, and that was not a part of
Mr. Coletta's resnonse to my question
here in Court. It clearly was in his
testimony but I suggest that the
ansv/er plveri In the deposition was
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fuller anj^ mci’e responsive to my
^^estlon than the answer here.
f *
.. THE COURT: Well, I will, for
' purposes here, hoping that we are
not going into an extended
discussion, the man has been on
* the stand for three days and that
we are not going extendedly and
I will be more disposed, if I feel
that we were r-oing further into
areas that are unnecessary, to
sustain the objection. I'm going
to overrule this one.
MR. DAYS: I'm not going to
^sk any more questions about the
army and the police department.
Q. (By Mr. Days) Mr. Coletta, you have
indicated that one of the reasons for recommending
a change in ammunition is the fact that police
officers had been confronted here in Memphis with
armed suspects and;shot them with a 158 grain
and weren't able to stop them and that was a
Problem, wasn't it?. .
A . Yes, sir.
Q. Was there anv Indication of an unarmed
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fleeing felon that hj^ been able to escape after
having been hit by a 158 grain or a 110 grain?
A. We have had -- now, specifically I don’t
know. . *
Q. Was that a problem that formed a basis
for your going into this study and suggesting a
change In ammunition?.
A. Primarily, no. Our principal concern,
or course, was, as I said, safety to our officer
and safety to the public and those factors which
I mentioned.
Q. All right.. Now, you indicated in your
examination by Mr. Klein that to your knowledge in
the case no disciplinary action was taken with
respect to officer Hymon, is that correct?
A . Y e s , s 1 r . ■ ■
Q. Do you know-whether the department has
ever disciplined an officer for using firearms in
apprehending an unarmed fleeing felon?
A. ‘ I don't really know. I do know this,
if I may continue, that I do have knowledge of the
police department dlsc^lplinlng men for the use
of firearms, but the' speciflcs of it I don't
really know.
Q. All right." You were asked a hypothetical
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1 by Mr. Klein with resrjiibct to the exhibit 6 Introduced
into evidence, that scale model over there. Would it
make a difference in your response as to whether the
officer's conduct was'reasonable if it were established
^hat the officer felt it vrould be easy to climb over
the fence down here to the southwest of this residence
at 739 Vollentine, and If it could be established that
that fence toward the back was, in fact, the type of
fence that would be difficult to climb?
A. No, sir, it wouldn't because if the
suspect succeeded in climbing the fence that you say
is difficult to climb, then again it would indicate
to me that the suspect would escape.
* Well, would it make any difference if it
were established that that fence in the back was a
cyclone fence with a very sharp pointed tops to them?,
A. In my observation, Mr. Days, I have seen
people scale ten foot fences and it seems to be no
insurmountable obstacle to them. I don't know what
it is,* if it is fear to escape or whatever it is,
with three strands of barb wire on the top, yes, sir.
Q. Given how much time, Mr. Coletta?
A. Well, generally I would be chasing them
and I couldn't catch them.
220
Q. Have you ever shot a person that was fleeing
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If
that you couldn't catlih?
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A . Yes, I did.
Q.
A.
Q.
Have you ever hit anybody?
No, no, sir, I hadn't.
And could you Indicate the circumstance
of that particular incident when you shot at a person
who was fleeing from you?
A. It was a burglary third of a grocery store
on Dunlap Street, and I disremember when. The rear
was contained by fence. We received a call. This
stpre had been burglarized before, it was a prime
spot that evidently people like to burglarize. So
we arrived on the scene and parked away from it,
approached it, peeked in through the front window
and sure enough saw them vforking on the cash
register, so I went to one side, ducked under the
window and went to one side and they had erected a
new fence with a shed on it, my partner went to the
other side and the fence also was there. Evidently,
I tried to get up on the fence so I could get up on
the shed so I could get to the back door, which I
could see was broken into, which was smashed, and
as I got, was trying to climb over I must have made
noise because evidently they heard me, heard them
shouting somebody is out there. I don't know, words
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1 to that effect, anywa[y I v;as discovered. They
emerged from the smashed door and proceeded to run
diagonally away from where I was, and when I succeeded
in getting upon the top' of the little shed that was
there adjacent to the fence, I shouted. V/ell, when
they-ran I shouted for my partner and I heard him,
I'm blocked by a fence. As I got on up I saw there
is no other way that I could catch them and one
subject who was running was still, with reflection of
light, like I say, that I could see that I felt like
I had a reasonable chance of hitting him, but I did
not .
Now, under the circumstances in order for
you to have captured that r’erson without using your
weapon, what would you have had to have done?
I would have-, had to have finished scaling.
222I
A.
the fence, climb up on the shed, jump down from the
shed, wasn't too high, I don't know, eight or ten
feet, it was, you know, probably I would have stumbled
when I*landed, I would have had to run, I would have
had to have overcome him, the speed, you know, in
running, and I couldn't do that, the speed at which
he was running indicated to me that he was just, would
far outdistance me by the time that those events
would transpire.
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Q. And how oi^ were you when this incident
occurred, Mr. Coletta?
A. It was during the first seven years, I
was between the.age of 21 and 28.
Q. And the situatlonthat you just described,
Mr. Coletta, could you determine whether the
suspects were armed or unarmed?
I have no Idea. I know that they were
working on the cash register with a device that
appeared to be a crowbar or something of that
nature.
MR. DAYS: I have no further
questions.
•THE COURT: All right, sir.
Anything further?
MR. KLEIN: No, Your Honor.
THE COURT: Mr. Coletta, I know
you will be sorry to leave us here
after this period of time. I believe
‘ you are excused.
THE WITNl’-N'S: Thank you, Your
Honor.
(Witness excused.)
223
THE COUB'f \7e will stand in
recess at this time.
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(Rec^rss . )
THE COURT; All right. You may
proceed with your next witness, Mr.
Days.
MR. DAYS: Your Honor, we would
^ike to call at this time Dr. Francisco,
please.
* * * * *
Go
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1
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DR. i/̂ T. FRANCISCO,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. DAYS:_____ _
Q. Doctor, were you subpoenaed to appear in
court today?
A . Yes .
• Would you give, for the record, your
full name and address.
A. Jerry Thomas Francisco, Memphis, Tennessee.
Q. And would you indicate your present
employment ?
A. Professor of pathology. State of Tennessee,
state medical examiner, state of Tennessee, County
medical examiner of Shelby County.
J 1
Q. Dr. Francisco, would you indicate something
about your training and background for your
present position?
A. I received my premedical education at
the Lambuth College and the University of Tennessee
at Knoxville, M.D. degree from the University of
Tennessee here at Memphis, one year of rotating
internshin at the City of Memphis Hospital, four
years of pathology training at the Institute of
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Pathology in MemphisJ certified by the American
j
Board of Pathology in the three specialties, the
anatomy, forensic and chemical. -
Q* What is pathology. Dr. Francisco?
A. Pathology is the study of medicine that
concerns Itself with causes of diseases, the items,
agents and events that cause diseases and the
ultimate outcome of this abnormality in a person ■
that either results in death or is associated with
cure. More specifically the, it deals with the
performing of autopsies, the interpretation of the
•results, the interpretation of effect as based upon
autopsy study and the interpretation of laboratory
Studies.
Q» Now, how does forensic pathology differ
from pathology?
A. Forensic pathology is that subspecialty
of pathology that concerns Itself with the more
specific states of traumatic Injuries, gunshot wounds,
stab .wounds, drownlngs, burns and things of that
nature and their subsequent interpretation in the
judicial system.
Q. In terms of your professional work and
your training, have you had occasion to study the :
effect of gunshot wounds upon the human body?
226
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1
Dr. Francisco, were you in the courtroom
, during any^of.,the testimony of theprlor witness,
M r. C o l e t t a ? ‘ _
A - ' Yes’.'̂ ̂ ’ •
describe the different
subcategories of ballistics?
A • Yes .
«• He Indicated, I believe, there are three
oateKorles, Internal, external and terminal or
wound b a l l i s t i c s ; d i d you h e a r t h a t s u b c a t e g o r i z a t i o n ?
A. Yes .
Q* Based upon your knowledge of the field
Of ballistics. Is that an accurate description of
the subcategories?
^ • Yes .
Q- Now, in terms of your particular area,
of competence, would you say that you are qualified
as an expert In any particular one or all of those
subcategories?
A. Yes.
Which one would that be?
Wound ballistics.
That Is also synonymous with wound
ballistics ?
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A• Yes .
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A. That’s cori^ct .
MR. DAYS: At this time I would like
to proffer Dr. ?^ranclsco as an expert
In forensic .pathology and wound
ballistics .
THE COURT: Without objection you
may proceed.
MR. DAYS: Your Honor, for the
benefit of the court and for opposing
counsel, before going into the areas
upon which Dr. Francisco is going to
testify as an expert in the area of
Wound ballistic.':, I would like to
direct a line of questioning to him
based upon certain personal knowledge
that he has with respect to the facts
of this Incident,
THE COURT: You may proceed. The'
fact that he mav be qualified does
not preclude your examining on any
other areas that he may have knowledge
about pertaining- to facts of this case.
Q* (By Mr. Days) Dr. Francisco, directing
your attention to October 3rd of 197^, did you have
’̂‘'caslon on or about that date to conduct an autopsy
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o f a d e c e a s e d b y t h e w j & m e o f E d w a r d E u g e n e G a r n e r ?
; ^
2 A . Y e s .
, (
if1
3 Q . A n d c a n y o u i n d i c a t e t h e c i r c u m s t a n c e s
1•j
' 4 s u r r o u n d i n g y o u r p e r f o r m a n c e o f t h a t p a r t i c u l a r
j 5 a u t o p s y , t h a t I s , h o w w a s i t t h a t a n a u t o p s y w a s
6 p e r f o r m e d b y y o u o f t h i s p a r t i c u l a r d e c e a s e d ?
i 7 A . W e l l , t h e d e a t h w a s r e p o r t e d t o t h e
f
8 o f f i c e o f t h e c o u n t y m e d i c a l e x a m i n e r r e l a t i n g a
9 d e a t h t h a t f e l l i n t o t h e c a t e g o r i e s t h a t a r e
■ )
i 10 r e p o r t e d , I b e l i e v e . T h e b o d y w a s d e l i v e r e d t o t h e
■i
11 l a b o r a t o r i e s o f t h e m e d i c a l e x a m i n e r a n d a t t h a t
1l
\ 12 t i m e a p o s t m o r t u m e x a m i n a t i o n w a s c o n d u c t e d a t t h a t
k
13 t i m e .
1
I 14 Q . B a s e d u p o n t h e a u t o p s y t h a t y o u p e r f o r m e d .
j
15 w e r e y o u a b l e t o d e t e r m i n e a n y t h i n g a b o u t t h e
1
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16 h e i g h t a n d w e i g h t o f t h e d e c e a s e d E d w a r d G a r n e r ?
© 17 A. Y e s .
18 Q . A n d w h a t d i d y o u r a u t o p s y r e v e a l ?
19 A. H e i g h t 6 4 I n c h e s , w e i g h t 6 0 p o u n d s .
{ ,
20 Q . E x c u s e m e .
21 A . 60 .
22 Q . B r o k e n d o w n i n t o h e i g h t i n t e r m s o f
23 f e e t , h o w m a n y f e e t w o u l d t h a t b e ?
24 A . F i v e f e e t f o u r I n c h e s .
n
25 Q . A n d y o u i n d i c a t e d t h e w e i g h t t o b e 6 0
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1 pounds ?
A.
230
Yes .
Now, Doctor, there has been testimony In
the record of the deceased Edward Garner's weight
being anywhere from 85 pounds to a hundred and
thirty pounds. Are you convinced that the result
that is reflected on that -- reflected as a result
of your autopsy weight is an accurate one?
A. No.
Q- Why do you say that?
Well, the weight of sixty pounds probably
represents a light weighing of the body. The body,
at least based on the photographs, the weight of
the organs and other factors is probably heavier
than sixty pounds.
Would you be able to suggest an outside
limit in terms of the weirht of this particular body?
A. The weight would be less than a hundred.
*3* Were you able to determine anything about
the overall body structure of this deceased as a
result of the autopsy?
A . Yes .
And what did , you conclude?
A. This was a thin individual.
• Is it part of your responsibility in conducting
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231
an autopsy to arrlve^t a conclusion as to the
cause of the death of the individual?
Yes, sir.
^nd did you reach such a conclusion in
this case?
A . Yes .
Q. What did you determine?
That this was a gunshot wound to the head
with a tearing of the brain.
Q- Based upon the examination that you did,
are you in a position or are you in a position to
determine the point of entry of the bullet into the
head of the deceased?
A . Yes .
Q- What did you determine as a result of the
autopsy?
A. This was a gunshot wound that entered the
right side of the heard in the right parietal area
of the head with the path of the bullet traveling
up to'J/ard the back in the posterior part of the
skull and brain.
• All right. Nov/, I don't know what the
parietal area is, if you could describe it?
A. The parietal area is a bone on the side
of the skull.. It is a bone that extends from Just
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232
just about the ear oiythe side up to the center part
of the head.
Q* Based upon your findings as to the entry
point of the projectile, are you able to draw any
conclusion as to the position of the head in
relationship to the location of the fire of the
proj ectlie?
A. In general terms, yes.
Q- And what would you be able to conclude?
A. Well, in general terms the head would be
almost at a right angle relative to the firing of
the gun. In other words, the gun was not -- the
back of the head was not facing the gun. The front
of the head was not facing the gun, but the face was
pointing more or less at a right angle to the line
of fire.
Q* All right. Now, based upon your knowledge
of the structure of the human body and the various
locations of portions of the body, based upon the
position of the head with respect to the location of
the fire of the projectile, can you draw any
conclusions as to the poss1.billty that the deceased
could see the person firing the projectile?
A. Well, it would be possible through
peripheral vision, through the positioning of the
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1 head through peripherj^l vision it might be possible
to see the shooting.
Q- But that is not something that you could
state categorically, is it.
No, because that would depend upon the
distance involved, the degree of lighting and several
other factors.
All right. Now, there has been testimony
in the record. Dr. Francisco that the fence involved
in this case, which the deceased was attempting to
scale, had pointed prongs at the top, that is, it
was a cyclone fence with sharp, not rounded tips,
at the top. In the conduct of your autopsy of the
*̂ Ody of Edward Eugene Garner, did you identify any
marks on the hands or the body or on the torso of
t h e b o d y ?
A. ' Well, there was a scrape to the shoulder,
but there were no marks to the hands.
Q. And did you locate any marks in the torso
area? '
A. No.
Q . If such marks had been present would
have been identified in the course of your
conducting the autopsy?
233
A . y e:
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2 3^
conduct any chemical analysis
from the course of theautopsy of the body?
A . Yes .
'5- What types of analysis did you conduct?.
A. A blood alcohol determination.
And did you arrive at any figure as to
the amount of alcohol in the blood of the deceased?
A . Yes .
• What was that?
A- Zero point zero nine per cent or 91/lOOths
of one per cent.
And are you in a position to translate
into the vernacular perhaps what this alcohol
content means in the terms of the amount of alcohol
that one would have to consume to produce that
percentage of alcohol content?
A . Yes .
‘3- And engaging in that translation what
'^°^ld you say that that reflects?
This would represent the equivalent of
the alcohol content of roughly four beers present
^he body at the tlme.
Based upon this alcohol content in theQ.
blood, are you able to determine anything about
the effect that this content might have on the GG3
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functioning of the l^ivldual?
A- Within'certain parameters, yes.
* Within those parameters what would you be
able to conclude?
A. Well, that this level of alcohol would
probably affect reaction time.
Q. Dr. Francisco, I would like to direct
your attention to the area of wound ballistics
MR. DAYS: And, if Your Honor please,
I think it would be helpful to have a
board on which Dr. Francisco could
write .
THE COURT: Yes, sir. You may
approach if that would be easy and
counsel and adversary may approach
if that would be of assistance and you may
proceed, Mr. Days.
• Days) Dr. Francisco, you indicated
that you have a specialty in the area of wound
Can you indicate generally the
process by which one is, as an expert in this field,
would go about predicting the wounding capacity of
certain types of projectiles?
Well, the features that are most significant
producing the v;ounds, a formula in which the
̂ GG4
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1 wound producing poterirClal Is indicated as W is equal
to the total energy available in the projectile times
the reciprocal of time, the repetlty with which this
energy is transferred from the projectile to the
body, plus the factor of tlie reciprocal of area,
meaning the smaller area over which this energy is
transferred, the greater likelihood that a wound
̂ be present, times a series of constants.
Well, they are really variables, actually, series
of variables which Include the elasticity of the
tissue, the plasticity of the tissue involved,
hydrostatic forces that mi.mht be present and several
Other factors that are present basically dealing
■ ':!!e
with the body anatomy, basically dealing with the
type of material and the various organs that are
present in the body. Now, this factor of energy
is determined from, as Mr. Coletta said, the weight
°r the mass of the projectile times theveloclty which
is squared, so that this converts to foot pounds of
energy and then this foot pounds of energy is then
present in the formula which indicates the wound
producing potential ox" any given force.
236
Q. All right. You can resume the stand.
Dr. Francisco
THE COURT; V/111 you repeat once
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Q
again what ̂ he W figure represents
on the- upper line.
THE WITNESS: That is wound
producing potential.
MR. DAYS: Perhaps for the
record. Your Honor, the two formulas
are W equals E times 1 over T times
1 over A times K.
(By Mr. Days) And it was the K, was it
not. Dr. Francisco, that reoresents the variables
that you were discussing?
A. That’s correct.
And the lower formula having to do with
kinetic Is the one that Mr. Coletta referred to,
E equals W, which is the weight, times the velocity
squared over 21
A. That's correct.
'3* Now, if I remember correctly, Mr.
Coletta used the term E equals M as opposed to
W, tim^s velocity squared over 2. Is there any
difference in the use of V/ as opposed to M?
A- Yes. W is weight, whereas M is mass,
and mass and weight are not necessarily synonymous
because there is the effect of gravity.
Q • But the two appr’oaches to determining
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1 kinetic energy are e!^entlally the same, are they
not?
^ • "̂ ât *s correct, yes.
Doctor,'there has been testimony In
the record as to the capacity of several bullets
that have been used by the Memphis Police Department.
The first bullet, the 158 grain .38 caliber luballoy
round Winchester cartridge was found by Mr. Coletta
in terms of his interpretation to have a kinetic
of 178 foot pounds per second with a plus or minus
factor of 25 foot pounds. The .38 caliber special
110 grain semi-jacketed hollow-point was found to
have a kinetic energy of 1,050 pounds per second
plus or minus 97 foot pounds, and the . 38 Special
Caliber Remington 125 grain seml-jacketed hollow-point
was found to have a kinetic energy of 1,^25 foot
Pounds strike that, I'm sorry, I'm providing you
with, I believe, incorrect information. Doctor,
I apologize for that, I wouldn't want you to be
given .the wrong type of information.
According to Mr. Coletta's testimony,
■based upon his' examination and his study of various
projectiles, he found, that the 158 grain had an
average velocity of 872 feet per second with a
25 foot per second variable. And with respect to
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that I'm nc>c ruling at this point
as to whether the objection is good
or not good as to materiality and
Relevancy but since it may be
relevant and material that the
question may be asked and the
witness may respond. Counsel may
wish to vary or amend the question
to Include thatassumlng that those
are the figures as a savings of
time .
MR. DAYS: Perhaps this might
help on this particular point.
Your Honor.
Q. (By Mr. Days) Dr. Francisco, were you
in the courtroom when, Mr. Coletta testified about the
results of his study of the velocities of various
bullets?
2̂10 .
A .
Q .
A .
Yes, sir.
And you heard that testimony?
Yes .
Q. Now, based upon that information are
you in a position to conclude anything about the
comparative wounding capacities of these three
bullets?
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Yes .
w h a t d o y o u c o n c l u d e , a n d , i f y o u
w o u l d , i n d i c a t e t h e b a s i s f o r r e a c h i n g s u c h a
c o n c l u s i o n ?
Well, t h e b u l l e t t h a t i s i d e n t i f i e d a s t h e
1 2 5 g r a i n w o u l d h a v e a g r e a t e r w o u n d i n g p r o d u c i n g
p o t e n t i a l b e c a u s e o f t h e g r e a t e r v e l o c i t y t h a t i s
p r e s e n t o f t h a t m i s s i l e , b e i n g t h e 1 ^ 2 5 f e e t p e r
s e c o n d p l u s o r m i n u s 6 2 , a n d b e c a u s e t h e v e l o c i t y
h a s t h e m o r e s i g n i f i c a n t e f f e c t u p o n t h e t o t a l e n e r g y
t h a n t h e t o t a l w e i g h t . T h e f a c t t h a t t h e 1 2 5 i s
l e s s t h a n t h e 1 5 8 i s b a l a n c e d b y t h e I n c r e a s e d
v e l o c i t y o f t h e 1 2 5 g i v i n g i t a g r e a t e r a v a i l a b l e
e n e r g y a n d t h u s a g r e a t e r w o u n d i n g p r o d u c i n g p o t e n t i a l
t h a n t h e 1 5 8 . i n t e r m s o f t h e 1 1 0 t h e 1 2 5 i s g r e a t e r
i n w e i g h t t h a n t h e 1 1 0 a n d h a s a g r e a t e r v e l o c i t y
t h a n t h e 1 1 0 a n d h a s a i g r e a t e r w o u n d i n g p o t e n t i a l
t h e r e f o r e , t h e 1 2 5 h a s a g r e a t e r w o u n d i n g p o t e n t i a l
t h a n t h e o t h e r t w o .
N o w , d o e s t h e f a c t t h a t o n e b u l l e t m a y
b e r o u n d - n o s e a n d a n o t h e r m a y b e h o l l o w - p o i n t e d p l a y
a n y r o l e in' t h e d e t e r m i n a t i o n o f w o u n d c a p a c i t y b a s e d
u p o n t h e f o r m u l a s t h a t y o u h a v e d e s c r i b e d t o t h e
c o u r t ?
A . Y e s .
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Q . A n d c a n y o M ^ l n d i c a t e w h a t e f f e c t t h a t
d i s t i n c t i o n w o u l d 'h a v e u p o n w o u n d i n g c a p a c i t y ?
A . W e l l , t h e h o l l o w p o l n t t y p e b u l l e t i s
d e s i g n e d t o b e f l a t t e n e d u p o n I m p a c t w i t h a t a r g e t .
W o w , i f , i n f a c t , t h e f l a t t e n i n g o c c u r s , t h e n t h e
a r e a p r e s e n t e d b e c o m e s g r e a t e r t h a n i s t r u e f o r t h e
r o u n d - n o s e b u l l e t , c o n s e q u e n t l y t h e r e i s m o r e
e n e r g y t o b e g i v e n u p p e r u n i t t i m e b e c a u s e o f t h i s
g r e a t e r s u r f a c e a r e a b e i n g p r e s e n t e d , s o c o n s e q u e n t l y
i f t h e a r e a d o e s f l a t t e n , t h e a r e a p r e s e n t e d i s
g r e a t e r f o r t h e g r e a t e r p o t e n t i a l e n e r g y a n d , t h e r e f o r e
t h e g r e a t e r p o t e n t i a l w o u n d i n g e f f e c t .
Q . T h e p e r c e n t a g e o f t h e p r o j e c t i l e i n t e r m s
o f b e i n g r o u n d o r h o l l o w c a r ^ c o m e i n t o t e r m s i n A i n
y o u r f o r m u l a o f w o u n d i n g c a p a c i t y ?
A . T h a t ' s c o r r e c t .
Q . D r . F r a n c i s c o , w e r e y o u i n t h e c o u r t r o o m
» f I
w h e n M r . C o l e t t a d i s c u s s e d t h e c a v i t a t l o n a l e f f e c t
t h a t W g p e p r o d u c e d b y t h e s e t h r e e p r o j e c t i l e s ?
A . * Y e s , s i r .
Q . W e r e y o u i n t h e c o u r t r o o m w h e n s l i d e s w e r e
s c r e e n e d o f t h e c a v i t a t l o n a l e f f e c t s ?
A . Y e s . ,,
Q . A n d b a s e d u p o n y o u r p r o f e s s i o n a D . e x p e r t i s e ,
b a s e d u p o n t h e w o u n d i n g c a p a c i t y o f c e r t a i n t y p e s o f
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1 Information, Hr. Coi4tta's findings and the slides
that he screened for the court present anything that
Would be contrary to the expectation that you would
have based on your analysis using these formulas.
A . No .
Doctor, I would like to read you
^ Portion of a document as follows _
MR. KLEIN: Now, Your Honor, I'm
going to object unless I know what he's
reading from and what the purpose of
this is and whether Dr. Francisco is
familiar with It because just to
start off read.lng I have to object to
that.
(By Mr, Days) Dr. Francisco, I'm going to
read from a document entitled "Declaration Concerning
Expanding Bullets" signed at the Hague 29th of
July, 1899, and read a section of that particular
declaration. The contracting parties agree to _
MR. KLEIN: Objection again. Your
Honor.
THE COURT: O.K. The objection
is noted. The objection has previously .
teen made with reference to and testimony
concerning the !Iague Convention of 1 8 9 9,
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1 and the Ccnfrt reserved a final ruling
on the materiality and relevancy, but
under.the circumstances present noted
that objection and permitted the
question in prior response and the
ruling will be the same.
• ■ %
MR. DAYS: As I was reading --
yes, Your Honor.
Q. (By Mr. Days) The contracting parties
agree to abstain from the use of bullets that expand
or flatten easily in-the human body, such as bullets
”ltli a hard nose that does not entirely cover the
core or that is pierced v/ith Incisions.
Doctor, would you be able to say, based
upon your professional training and background
whether a hollOw-nose bullet is a bullet that would
®^pand or flatten easily in the human body?
A . Yes .
Q. And what would your position be on that?
A. That this bullet has the capacity or
the tendency to flatten If it strikes an object
of sufficient force to cause the flattening.
MR. DAYS: No further questions.
Your Honor.
THE COURT: You may examine, and
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In this ii|^tance you may cross
examine.
CROSS EXAMINATION
BY MR. KLEIN:
Q. Dr. Francisco, are you familiar with
^r.J. Blaine Haold, who Is a member of the Board
of Police and Fire Surgeons in Washington?
A. No. '
Q. Let me ask you this question, do you
agree or disagree with the statement that the
hollow-point bullet would produce no more Injury
or more severe Injury than that that would be
expected by .standard ammunition?
MR-. BAILEY: Your Honor, I
, want to object to the form of the
question- ...Mr. Klein has not indicated
who the author is or from what source
hels reading and so that is the basis
of my objection.
THE COURT: I think that
objection is well taken, Mr. Klein,
not that you are prohibited or
precluded from asking whether he
agrees or disagrees, w.ith some
authorit.y or some writing, but I
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think it sj^uld be identified for the
witness.
(By Mr. Klein) Fine. Let me hand you
this, please, sir. It’is short and if you would just
look it over and then when you have had a chance to
do that I will ask you to tell me what it is.
A. All right, sir. This appears to be an
Article in the Washington Post.
1 i
Q.
A .
Q.
A .
Q.
Who is the article by?
The article is by J. Blaine Harold, MD.
What is the date of that article?
F e b r u a r y 2 1 s t , 1975.
All right. And you have had a chance to
read it over?
A . Yes . .
Q. ■ And particularly with reference to the
part with regard to the effect or injury produced
by a hollow-point bullet as opposed to standard
ammunition?
MR. DAYS: I object to this.
Dr. Francisco says he does not
recognize this person. This is
not an original of the newspaper .
article. There is not reason to
think that the person writing that
̂ 675
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, \Jis so identified. I think it is the
rankest type of Inadmissible evidence.
MR. KLE_̂ IN: If I may respond.
THE COURT: Yes, sir, you may
Respond.
MR. KLEIN: Your Honor, I ’m not
asking him about its authenticity.
They wanted to know what it was and
that is the reason that Your Honor
say I have it identified. I ’m Just
asking him to tell what the statements
are as to the Injury producing effect
of hollow-point as opposed to the
standard ammunition and whether or
not he agrees or disagrees with that.
THE COURT: Mr. Klein, youare
entitled to do that with a recognized
authority under the New Federal Rules,
which, in my judgment at least, have
gone pretty far that anybody can come
forward and present Ralph Nadar on
such and such and whether or not
somebody agrees or disagrees, but the
objection here is that you are not
presentinp: somel.hlng in the form of
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1 a treatise^' boolt or authoritative
report of what purports to be an
authoritative opinion or study,
and, therefore, it is improper for
this witness to be calle d upon to
express an opinion. This would not
preclude you from asking whether or
not he agrees or disagrees with or
whether he has an opinion on this
matter, but I'm disposed to sustain
the objection. In the absence of
a more authoritative basis of
presenting a pi’esumed statement
of someone who ourports to be an
®^pert or authority on this subject.
MR. KLEIN: Well, Your Honor,
You recall that is the way I
started asking the question.
THE COURT: And the objection
is that the witness has stated that
he is not familiar with that
gentleman.
MR. KLEIN: Then I left that
and I started asking him whether
he agreed or disagreed about the
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effects of the hollow-point bullet
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With regard" to ^injury
article m my hand and 1 was r e a d i n g ' ’' X
from it, but I wasn't reading in
■ “?-‘h a r ; o r ; ; X X e S i & S l ' i l
la Whether or not he agreed with thatX'I ' X
proposition. .
r; ' ;.,.^HE JIOURT. I.„ to; s u s t a i n ^
. " A io the question'a^-putX^fli
in the ■ Torm put. ^
MR. KLEIN. All ri.rht v-.L
- . ., . . -,. . . -̂, yv V ' ■ "ir'
Convention^^in all of these^XtraneolfC
■ . I • ", • ' •
matters Which the Court has permitted
counsel for,the Plaintiff,to go '■ „
Into and again I think thiesis ’X a t X X
aa relevant -.as anything 'pertainingXoV, ';
the .-Hague Convention ,• 'X-:..■ i■x.X' '■ ̂'■; * . ■ ■ 'x#^xxrv:
.;.>V\THE«o^p: l' understand y o u X X S
position, Mr'; Klein, and the Court
13 trying to make clear to you that
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In t >.-
If you i^re aeelclng to get in this
-r he ^gree^^or ^^greoe 'wlth;:eo;nei;6ther;j#^
i . ■ e^pertjoplnlon you have P h a l ’® Tinat prerogative:■%;.•
to do so.'' T ’m * n'"}-t m not precluding you
fro. Pol^g that. e t a w n g . , '
; ' the:-obj'e=^^
-that'youihave not P r e a e n t e d ' ^ o ' m ^ ^ ^ " ' ^ ^
«ltneas any purported authoritative ^
V . . ,=- for.'...:....,.
- V . U b « i ^ - t i ? t i A J . o p : h e t e a t e d ^ ^ T h l V ' - d ^ ^ l l - j i ^ ' l l l
yv V- n o ^ preol^ude- you."'Mr. 'Kleln;"'fro^'‘"n* '
Inquiring or asking Into the area '
that someone else may,have stated ,
an oplnlon.^or a suggestlon/''l'm;
; . ^ f ”Ply,-ustalnlrig'the o b J e o t ^ o n ' M
; ‘**® «“®atlon and:thel-orm'of;-the^3|P|'S^
question ast'put. ‘ ''' ‘ '< '̂d-5, f
(By M r , K1 ein) AIT r.u<. '1 right. , Doctor, let '
you this, question. What Is y o u r : lpmion
- o u t the injury producing ePPect C r 1 o l l o „ : ; : ' n t ^ ' t «
as opposed to t h e - ^ d ammunition, the' ro^^d.;::
••■: nose .^ammunition? ^
I would obJeotno^‘:W';=̂ ^̂ ^̂ -̂
the Porm oP'the question, Vour Honor.
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. THe 'co>(JRT: I will overrule,
the objection. If the witness.
within;,his;' realm of., expert is ev<;'̂ ;TvT'!̂ "<5̂ ^
understandsj^and can.;̂ respond-';.Jbp:.vt;h
■ , * . ■ ■ ’■ . r.':question. : Do you want to elaborate ' .v"
on the basis, of the objection to the
’
l-'l
form .of-. thâ ... quest ion?
T:’\ -̂ '‘.^^R^Td a y S: Yes,-Your -HonorT-'^'^
My examination of Dr. Francisco ' '' ■ ; - .•■■■
related to the techniques used
* • t V * f' *•! ,
• ' .by ■ p.eople-.ofj; his background'•
V•^’-‘.r.. proj^edt Ing ' the wound effect of ■'-•■•■ • '■ •’ ‘ '
•J V . ̂ ■ • • . ■ . • ' ■ • ■ . •■'■'■' '■ °®rtain types of projectiles. I
''think it is demonstrated that he
■ ;.' was. relying .upon theoretical,-.approaches • ''.>
T’ '■y. .J.O render:^his, opl“' * --
t > ;.i■ Now,T.ifi Mrl.'i.Klein 'wan
■ ̂ ' ‘ 'w- . Vthe theorŷ }i!t.hen I .. think, he/:, should so ' '
; •«*
indicate and clarify his question in . .;,'T''
•̂ ‘ that respect. . . ̂ , .
■ ' • -■’ -"■• '' ' ' ■ • '■ • • ' .xh '
' THE COURT: Well, perhaps' the
Court, .; in'view of the fact that Dr . . /'/'̂' ,T/T
v̂ - •., ■■’ -v.jf^nclsco has.vtestifled in- this
■ • •'■ '■• Court ĉ n’̂jnunierous 'occasions before7̂•■''̂ '̂■:̂.V:W;̂^̂
and the Court has some familiarity
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with his b^kground in that regard
has assumed more than the record
bears out the v/itness’s experience
In respect to the studying and
examining the effect of these matters.
With that statement, in this context
with the right of examination of
further examination in that regard
I ’m going to still overrule the
objection, that I. f the witness has
knowledge and understands the
import of the last question that he
may respond recognizing that he may
have gone beyond the area in which
you sought to present this witness's
testimony, and in so doing and if
he goes beyond that he is making him
his witness with your right to
reexamine in light of the fact that
has been made the defendant’s
witness.
MR. DAYS: Yes, Your Honor,
I ’m not objecting to Mr. Klein
going into this area. I just
objected to the form of the question.
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A .
back,
I'm going to have to have the question
253.
Mr. Klein) All right. My question is,
do you have an opinion as to the difference of the
injury producing effect of a hollow-point bullet
as opposed to standard ammunition or what we have
Commonly referred to as the round-nose bullet?
MR. DAYS: I object to the
form, it is Incumbent on him to
indicate whether he is talking about
whether Dr. Francisco is to state
that he agrees with that formula
and the conclusions that he reached
using those theoretical approaches
or whether.he is asking him does
his experience also support the
theoretical analysis that he
described on his direct examination.
THE COURT; Mr. Klein.
MR. KLEIN: I ’m asking
^^m a question if he can give me
the answer I will assume he will
do so. If he can't he can't and
if he does I assume that he will
tell me what the basis of his answer
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is, whethi^ it is based on theory.
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based.on practice, experience,
knowledge, reading of treatises
or not.
COURT: I'm going to
overrule the objection.
A* Yes, I have had some experience. I do
have an opinion'as to the difference between the
wounding, in order to answer it I'm going to have
to go back to the blackboard again.
THE COURT: You may do so.
(Continuing) The hollow-point bullet,
by virtue of this capacity to expand, if in fact
it does expand, produces i greater wound than a
similar type bullet not liaving the capacity to
expand. In my experience, or our experience, this
^^ilst does not strike point—on because it doesn't
strike polnt-on it does not always flatten since
it does not strike point-on and does not flatten
the wounds that I have observed have been equal
to the wounds observed by the non-hollow-point
bullets and the reason, what I mean by this point-on,
a bullet in flight will have a tendency to undergo
what is known as yaw, which is kind of a fishtailing
effect, much as a car on the wet ̂ pavement when
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1 the brakes are appli^, the bullet is not only
rotatinp; in its path and nioving part forward in its
path, the back end of the bullet is rotating up and
down in the path as the fishtalling car would be,
therefore, the bullet shcjuld strike the skin at
this point indicated by this line on the diagram
so that the point is not perpendicular to the surface
of the skin, this point does not flatten though and
not flattening there is no greater injury
produced than a round nose, consequently my
experience has been that I can find no difference
in the wounds seen with the hollow-point versus the
round-point ammunition.
MR. DAYS: Por the benefit of
the Court, i wonder if there would
be any objection to introducing
that particular diagram into evidence.
THE COURT: The Court feels
that the suggestion is appropriate
• and should be marked by the Clerk
as the next ^exhibit number.
THE CLERK: Number 22.
i'HE COURT: The Court will
note that the exhibit has been
referred to by this witness during
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the course':
35 6
if direct examination
previously and has also been referred
to by the witness in the course of
cross examination.
(Whereupon^ the said diagram
referred to above was accordingly
marked Trial Exhibit 22 and received
in evidence.)
■ THE COURT ; Proceed .
Q. (By Mr. Klein) All right, sir. Dr.
Francisco, as far as the injury producing effect of
any bullet, is it largely determined by where the
bullet strikes the body?
In terms of the injury, yes.
Q* Now, why do you say that, what do you mean
by that?
A. Well, the wound and the injury are not
necessarily the same. The wound is what we actually
see to be present on the body, whereas the injury
is the overall effect of the wounds plus other
effects Involved, so the injury of a bullet is
where the bullet strikes, does it strike a vital
organ, or does it strike n non-vltal organ. If it
strikes a vital organ the'injury is severe, and
the reverse if it doesn't.
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Q. It makes ^
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difference whether you are
talking about hollow-point or round nose ammunition,
if you strike a vital organ is it going to make
any difference- whether it is a hollow-point or
standard ammunition?
A. All other things being equal, in other
words, obviously velocity will not produce the
same degree of wound and thus not likely to
produce the same degree of injury, rather than a
high velocity .
Q. Are you familiar with Dr. Vincent
J . M . DeMayo?
A. Yes.
Were you in the courtroom when I asked
Mr. Coletta to read from a portion of an article
in the PWC bulletin with regard to certain
articles about the hollov/-point ammunition?
LT'
A . Yes . ■
Q. And I'm going to hand you that again
so that you can look at it.
THE COURT; All right, sir.
You may express your objection.
MR. DAYS: I did not pose an
objection at the point that Mr.
Coletta testified with respect to
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this document because he received it
and I assumed in the course of
receiving certain bulletins I submit
to the Court that this particular
bulletin does nob fall into the
category of the public domain and
that is known by forensic pathologists
and consequently open to all kinds
of challenge and responses by experts
in the field on the same Issues.
THE COURT: Well, I would
suggest that counsel pursue a further
predicate in that area in light of
the objection before the witness
upon, if the witness is
called upon for a response.
(By Mr. Klein) Who is Dr. DeMayo, Doctor?
Well, he is the Deputy Chief Medical
Examiner in Dallas County a ('filiated with Southwestern
University. I don't think he's left.
*5* Do you know him Personally?
A. Yes.
Are you familiar with any of his works
or any of hJs treatises or any of his papers dealing
with ammunition and hollov/-polnt ammunition?
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Q.
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this document because he received it
and I assumed in the course of
receiving certain bulletins I submit
to the Court that this particular
bulletin does nob fall into the
category of the public domain and
that is known by forensic pathologists
and consequently open to all kinds
of challenge an̂ l responses by experts
in the field on the same Issues.
THE COURT: Well, I would
that counsel pursue a further
predicate in th-ut area in light of
the objection before the witness
is called upon, if the witness is
called upon for a response.
(By Mr. Klein) Who is Dr. DeMayo, Doctor?
Well, he is the Deputy Chief Medical
Examiner in Dallas County affiliated with Southwestern
University. I don't think he's left.
Do you know him personally?
A. Yes.
Are you familiar with any of his works
or any of his treatises or any of his papers dealing
with ammunition and hollov;-polnt ammunition?
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Q
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A. Yes, sir. \J.
As opposed to the standard ammunition.
What has he done, works of his that you are familiar
With? 1 : ̂ ‘
Well, I can’t cite you particular works
that he has done. The entire Institute at
Southwestern has been concerned with gun and
wounds resulting therefrom. Most of his work has
been in that area.
Q* But you have from time to time read,
studied or made yourself familiar with some of
his works, is that correct?
A. Yes.
MR. KLEIN: Your Honor, I ask to
be allowed to proceed.
THE COURT: Do you wish to voir
dire the witness further in respect
to your examination as far as the
particular, I believe it was referred
to as PWC bulletin?
Q • (By Mr. Klein) Are you familiar with
the PWC bulletin?
A. No, sir.
Q- Do ycii know whether he publishes in other
bulletins or not?
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(A. Well, the cublishes and whenever
someone publishes you end up publishing In whatever
article will receive your publication if you think
that you have something' to say, you know, a general
statement in that regard.
Q. Have you read his works in other publications
A. Yes, sir. '
Q- What publications, for example?
The American Journal of Forensic Sciences,
things called the American Journal of Police Science,
those are the two journals.
Is it likely- that if he has articles
in those he may have similar articles in other
bulletins as well?
A. Well, you know, as I say, whatever publisher
will publish. Persons who write articles will .
publish wherever the article will be published.
THE COURT: Do counsel for
the plaintiffs wish to voir dire
further in llghl: of the objection?
VOIR DIRE EXAMINATION
BY MR. DAYS:
Q Dr. Francisco, may I see that document?.
Is the Police Weaoons Center of the
International Association of Chiefs of Police a
rr u t
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1 bulletin that is recoj^ized by people in your field
as a source of authoritative articles on matters
such asvround ballistics?
A. I can only answer for myself. I'm not
familiar with this here.
0.. Do you think that you would be familiar
with it if it did fit into the category of being
an authoritative journal for people in your field?
I would think that I would be, yes.
MR. DAYS: No further quest ions.
THE COURT: I'm going to
sustain the objection at this time,
Mr. Klein.
MR. KLEIN: Your Honor, I'm
going to ask that this be made an
exhibit for.identiflcation.
THE COURT: You may mark it
for identification purposes.
(Whereupon, the said bulletin
‘ referred to above was accordingly
marked Trial Exhibit 23 for
identification.)
Q. (By Mr. Klein) May I see your -- is that
your autopsy report that you have there?
^ . Yes.
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Q.
A .
Q.
A .
Q.
A .
Q.
Did you p^forrr the autopsy yourself?
Yes .
Did anyone assist you?
Yes .
Who assisted you?
Dr. James Bell and Dr. Joseph Zepallo.
So there were three of you who were
actually performing the autopsy?
A. That’s correct.
Q ‘ You were commenting on the alcohol content
earlier and did I understand you to indicate that
that was probably, or that was more than the normal
alcohol content that you v/ould, than you would
expect in a normal person?
A . Yes .
Q. What would’be the normal content or --
A. Well, theoretically zero and in practical
terms certainly less than .01.
Q. And .01 is what you found to be in --
A . No, .09 .
Q. Is that in any way correlated with the
system used by the Memphis Police Department in
determining whether a person is under the Influence?
A . Yes, s1r .
Q. Do you know v/hat the standards of the
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Q.
A,
Q.
263
Me^phls Pcx.oe Oe^aPt.ent a.a ,o o p t.e
bPeakoff point with regard to whether or not one
is under the influence?
Well, this.Is state law, thisis predicated
on state law which establishes that a level of
10 Is the point of Intoxication.
And this,level was what?
.0 9 .
it is just rj.rht below?
Won. It Is . 0 1 below, right.
or course , you can't ascertain what the
source of the alcohol is?
̂' No .
Q . But p.resumabl '- it jis something that is
taken or ingested?
That ' s correct.
rcsslbly drinking a beer?
°nly as an example,
- t as an indication that It was, m fact, the
^'^verage used.
C o u l d i t b e whiskey?
= fin. any alcoholic
beverage.
«• You further indicated. Doctor, that
the wound to the head raS'lntered from the right
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s i d e . I s t h a t c o r r e c t ?
Y e s .
261}
Q.
believe -ff- ,,o
H ® y o u r s t a t e m e n t t h a t
t h a t w o u ld f u r t h e r I n d i c a t e t h a t t h e '
weapon t h a t
as used p r o b a b l y was vh = <-
■ you e a y , a r i g h t
a n g l e f rom t h e v i c t i m ?
- '■i^ht angle, y e a . '
O f th h th e ba ck
̂ -’ ead b e i n g t o w a rd t h e m uza le o r t h e f r o n t
th e head b e i n g t o w a rd t-h«& ouwara th e m u z z le i n
. J o t h e r wo rds
I t was J u s t a s i d e —
A .
T h a t ’ s c o r r e c t .
«■
^ n . i c a t l n g w h e t h e r i t was l o w e r t h a n t h e weapon
weapon, a r e you?
A . • . ;•
Sir, t h a t Is c o r r e c t ?
And you m e n t io n e d a l s o 1 t h i n k t h e r e were
- - s c r a p i n g on th e body o r a b r a s i o n s ?
T h e r e I s a s c r a p e t o th e t o p o f t h e l e f t
s h o u l d e r
' ' " a Know W h e th e r he -
you w o u l d n ’ t know i f he had c l o t h l n .
^ ' on a t t h e t im e ?
At t h e t im e th e body a r r i v e d we have
p a n t s , s o c k s and s h o e s ,
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MR. K
all I • have .
■ THE COURT
All right . That ’ s
Anything further?
MR. DAY'S: Yes, one question.
CROSS e x a m i n a t i o n
BY MR. DAYS:______
Q. Dr. Francisco, you made reference in
your cross examination by Mr. Klein to the concept
of yaw. All things being equal, if a hollow-point
bullet struck head-on as opposed to a round-nose
bullet striking head-on, that is if the yaw were,
in fact, minimal, could you indicate any conclusion
about the difference of any between the wound
that would be caused by the hollow—point bullet
as opposed to a wound caused by the round-nose
bullet? : "
A. Well, there would be a slightly greater ,
wound present if the bullet struck polnt-on. This
degree of Increased magnitude might not be measurable
if one is to measure the two wounds, but the wound
would be slightly greater because of the greater
area in which the energy is given out.
Q. In .adding to that, if one assumed that
the hollow-nolnt bullet v̂ ere traveling at a greater
velocity than a round-nose bullet and struck head-on,
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what would you assume
266
about the relationship between
the two wounds of those projectiles?
A. Well, the projectile traveling at the
greater velocity will produce the greater wound
because velocity is the single most important factor
in determining wounds.
MR. DAYS: Thank you.
MR. KLEIN: Your Honor, this is
really in the nature of an omitted
question, if I may.
THE COURT: All right, sir.
RECROSS EXAMINATION
BY MR. KLEIN:_______
Q. Di‘. Francisco, did you testify before
a legislative committee hearing, I say recently,
̂ Suess within the last year?
A . Yes .
. And was it in connection with proposed
legislation to, what, out?av/ the use of hollow-point
bullets ?
A.
Q.
Yes
And what was the result of those committee
hearings?
A. I have no idea.
There was never any change in the law, was
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1
A .
any, no.
Q.
there ? 267
Well, I ’m not s u r e_I ’m »-r>+--1. HI not aware of
And Who called you to testify?
This was the executive secretary of the
legislative counsel. I t was some person In the
legislative counsel.
S’OU If you had any
recommendation one way or the other?
No. t h e y were . fu s t a s k i n g f o r I n f o r m a t i o n .
«• , S i m i l a r t o th e t y p e o f I n f o r m a t i o n t h a t
you gave h e r e ?
^ • Yes .
nDo you know whether other police
departments throughout the country use the hollow-
point type bullets?
A- T r,1 do not know.
MR. KLEIN: That's all.
MR. DAYS: Mo further questions.
the COURT: Have you made any
independent study on your own with
respect to the impact or severity of
wound .with regard to different types
of ammunition by any of the police
authorities wJthm your jurisdiction?
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THE WITNESS: No, only with the -
not that I would dignify with a title
of study. It has been a study of the
wounds that have been produced and the
ammunition that was present as a
case study as each case was examined.
the COURT: Well, have you formed
any opinion as to your experience with
regard to the severity or noticeable
severity of wound since the use of
the Remington 125 semi-jacketed hollow-
point type of ammunition?
THE WITNESS: No, sir, I have no
conclusions from the result of those
studies that I have done.
the COURT: From the nature of
wound that was examined with
respect ,to this autopsy, could you or
not be able to say that the type of
bullet thatmight have been utilized
would have had any bearing or any
effect on the result or the effect of
the pistol shot and the injury in
t 1 s case?
THir WITNESS: Well, Your Honor,
537 . G97
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* ' f<• *•• **• .»<• ̂■'•̂C**»•̂.*3 ••
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u 269
for me to form conclusions based upon
a single case, single autopsy, is
fraught with so many possibilities
of error that I would be hesitant
to give an opinion.
THE COURT: All right, sir.
Any further questions?
MR. DAYS: Nonq Your Honor.
MR. KLEIM: No, Your Honor.
THE COURT: Thank you.
(Witness excused.) .
* » S K *
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1
E X H I B I T S
N U M B E R I D E N T I F I C A T I O N E V I D E N C E
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1 A F T E R N O O N S E S S I O N
A U G U S T 4 , 1 9 7 6
T H E C O U R T : I s t h e d e f e n d a n t r e a d y
t o a d v i s e u s w i t h r e s p e c t t o g o i n g
f o r w a r d , a n d a r e y o u g e n t l e m e n r e a d y
t o ’ a d v i s e m e w i t h r e g a r d t o t h e m o t i o n
t o v i e w ? :
M R . K L E I N : Y e s , s i r .
M R . D A Y S : I w o u l d l i k e t o m a k e
o n e p r e l i m i n a r y c o m m e n t b e f o r e w e t u r n
t o t h a t i s s u e . M r . B a i l e y , m y c o - c o u n s e l ,
a s k e d t h e c o u r t ’ s I n d u l g e n c e w i t h
r e s p e c t t o t h e t a k i n g o f j u d i c i a l
n o t i c e w i t h i n s p e c t i n g t h e s c e n e .
U n d e r T e n n e s s e e l a w , I w o u l d l i k e
t o d o t h a t a t t h i s p o i n t , I ' m q u o t i n g
f r o m p a g e 5 1 5 o f t h e 1 9 7 5 a c c u m u l a t i v e
s u p p l e m e n t o f t h e - T e n n e s s e e C o d e
A n n o t a t e d V o l u m e 1 . A n d o n p a g e 5 1 5
i s c o n t a i n e d t h e m o r t a l i t y t a b l e
s h o w i n g t h e e x p e c t a t i o n o f l i f e a t
v a r i o u s a g e s . A n d u n d e r t h e a g e 1 5 ,
w h i c h I t h i n k h a s b e e n e s t a b l i s h e d
a s t h e a g e o f t h e d e c e a s e d , t h e l i f e
e x p e c t a n c y i s 5 ^ . 9 5 y e a r s .
6 0 0 70j.
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THE COURT: Without having been
made a part of the record, as part of
the plaintiff's case, can you advise
us With regard to the defendant at
this time, Mr. Klein?
MR. KLEIN: Your Honor, as I
understood the court's ruling before
the recess. Your Honor granted the
motion as to the defendant Hubbard and
granted the motion as to the defendant
Chandler, granted the motion partially
as to the city of Memphis and the Memphis
Police Department with regard to the
hiring practices, but with regard to
the other allegations relative to the
city of Memphis and the Memphis Police
Department and all of the allegations
with respect to the defendant Hymon,
the Court Is reserving Its ruling on
that ?
THE COURT: Correct, with the
right of the defendant to stand on
your motion or to proceed without
waiving It.
MR. KLEIN: In that case. Your
571.
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1 Honor, we will go ahead and put on
proof. Of course, again standing
naturally standing on our motion
for directed verdict that we have
already made.
THE COURT: All right, sir.
You may proceed.
What about the motion to view?
MR. KLEIN: Your Honor made a
comment which I think is a good point
with regard to, if the Court decides
to vlewj. it should view in the night
time and I don’t know how closely
we can simulate the circumstances
or the lighting, but hopefully it
could be done with the idea of doing
it as closely to the situation as
the facts have established that
existed at that time.
I, frankly. Your Honor, as I
say, I have researched the law. It
is clearly within your Honor’s
discretion. I think the court has
enough before it now to rule on
the case without going out there,
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1 and really, that Is all that I have to
say, Your Honor. I don’t vigorously
oppose it, I can’t say that I ’m
for It. I repeat, I think that the
Court has enough before It now to
pass.
MR. DAYS: I have a feeling that
I should rely on Mr. Klein’s conversa
tion with my co-counsel In the midst
of discussing other things I overlooked
getting' his definite position on It.
I think our position. In light of what
the Court has said and Mr. Klein’s
position, we would not press our
motion for view In light of all of
the evidence In the record at this
time .
THE COURT: All right. I will
treat It and the court will make no
plans to do that. If we do plan, I
do not plan to be out there at the
same time, In order for It to be a
meaningful practical thing It should
be after dark and I don’t suggest
that there should be any effort to
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1 attempt to simulate anything but as
conditions allegedly or purportedly
were, but we simply have that
opportunity with counsel present at
the place after dark, but since neither
side is pressing us on that point, we
will make no present plans to do so
until or unless we hear further from
counsel to do that. All right. You
may proceed.
MR. KLEIN: Your Honor, in view of
the Court's rul’lng and as the Court has
indicated, not ruling at this time on
the training procedures, the policies
.of the police department with regard
,t.P the use of lethal and non-lethal
force^ and.the policy of the police
department v/hereln they decided to use
the hollow point bullet, I would like to
call one witness out of turn. Ordinarily
I would call Officer Hymon first, but
I have General Hubbard here.
THE COURT: All right. I want
to make one other thlngclear. The Court,
you are correct that the court is not
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1 ruling on the contentions with respect
to training and x̂ lth respect to-the
use of certain types of ammunition
to the extent, and if the plaintiff's
Contention is that the defendants,
or any of them, are in contravention
of the plaintiff's rights, with regard
to the following, the policies of the
Tennessee Code Annotated 40-808, to
the extent or if the plaintiffs are
asserting a violation of the plaintiff's
rights because of the defendant's
enforcement of Tennessee Code Annotated
il0-808 , but only to that extent that
the Court would grant the defendant's
motion as to that portion of the
alleged cause of action that bears
upon that., but as we understand it, the
plaintiffs are not asserting to the
Court that the defendants carry
Instructions per se. The defendants
Instruction that it provide the
conditions of Tennessee Code Annotated
40-808 are followed the use of lethal
force is lawful.
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1 MR. DAYS: That’s correct. Your
Honor, we are not charging the •
constitutionality of the Tennessee
statute Insofar as lethal force may
be used under certain circumstances.
THE COURT: I wanted to make
that other clarification that I
understand that the plaintiffs were
not raising that as a further
contention because, if so, the
court feels bound under the Ellington
matter to follow the effect of that
case butwe will proceed.
MR. KLEIN: All right. General
Hubbard. Your Honor, I ’m calling
him —
THE COURT: The Court Is ruling
you may call him out of turn provided
that any of the defendants who are
present would be asked to step out
when you call someone else out of
order.
MR..KLEIN: That Is what I
v/anted to find out. I will ask Officer
Hymon to step out.
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JAY W. HUBBARD,
having first been duly sworn, was examined-and
testified as follows:
DIRECT EXAMINATION
BY MR. KLEIN:______
Q. State your name, please, sir?
A. Jay W. Hubbard.
Q. How do you spell your first name?
A. J-a-y.
Q. And you reside where, sir?
A. Currently in San Juan Capistrano, California
0 . V/hat is your occupation?
A. Western regional manager for Guardsmark,
Incorporated.
Q. Aid right, sir. Were you formerly the
director of police for the city of Memphis, Tennessee?
577 .
A. I was .
MR. DAYS: Excuse me, may I ask
that the witness speak up, I have
difficulty hearing.
THE COURT: If you will, please.
THE WITNESS: Yes.
Q. . (By Mr. Klein) And how long did you hold
the position as director?
A. Almost exactly two and a half years.
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1 Q- And when did you first take that position
and when did you terminate that position? '
A. The first of December *72, and I terminated
31 May '75.
Q. And prior to that time, what was your
occupation?
A. I retired on the 30th of November of ’72
from 32 and a half years of active duty in the Marines
What was the rank that you had attained
at that time?
A. Brigadier general.
Q. At the time that you took over as director
of police, v;ha't was your understanding as to your
J°b duties or what was or what were you supposed to
do in that capacity as you understood it at that time?
A. My understanding was that the, everything
to do with the administration of the department, its
funding, its organization, its ability to perform,
its mission was my responsibility.
* All right, sir. And as such as director
did you have any supervision authority or did you
oversee the training program of the Memphis Police
Department of the new recruits as well as those
who were on the force for a period of time?
Yes, the, maintaining the authorized
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1 compliment, asslstintj the city personnel department
n 2 In securing, screening and finding the people that
3 met our standards for initial entry into the
4 academy , our curriculum there, the product of that
5 curriculum, the future on a probationary status
6 before they were fully certified, all of these
7 things I felt were my responsibility.
8 Q. All right, sir. And were you familiar with
9 the operation of the police training academy?
10 A, Certainly was.
n Q. 0̂ you recall at that time when you
12
%first came in who was in charge of the academy?
n 13 A. Yes, at that time Inspector Barksdale.
14 Q. All right. And who succeeded Inspector
15 Barksdale?
16 A. Then it was—
17 Q. Do you recall?
18 A. Captain Craven.
19 Q. All right. And then after Captain Craven
20 was anyone after Captain Graven while you were
21 director?
22 A. I would have to refer to my notes on that.
23 Q. What about Captain Coletta, do you know
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24 whether he had any connection with the —
25 A . Captain Coletta had been in the, was the
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1 range training officer and throughout all the period
that I was in the director’s position.
There was an officer for a short period
who commanded the academy and I ’m struggling for his
^ame, I can’t recall it.
Q. Did you keep in close contact of what was
going on out at the training academy?
A. Yes, we reviewed the curriculum before each
class. There were changes, we felt there was —
THE COURT: Excuse me, counsel.
MR. DAYS: Your Honor, I would
like to object to the form of the
question, for counsel to lead the
witness in terms of choice or not,
I think suggests the answer to the
questions, so I would object to this
form of questioning.
THE COURT: Well, I will overrule
the objection to that particular
question. I will ask that the counsel
refrain from suggesting an answer in
the form of the question as a general
procedure.
(By Mr. Klein) Go ahead, sir.
My overview consisted of looking at the
Q.
A
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1 curriculum, making inputs before we would start
the next class. We would have a, I would-be Involved
in at least one conference and then we would have
several others hoping that we would continue to
update and improve our curriculum. I caused some
weight to be shifted and emphasis here and there.
We tried to put more of the humanities into it.
We had some conflict in that we only had
so much time that we could keep a cadet in the
academy. In that process I was in and out and then
I would also speak on one or two occasions to the
students. That was basically my relationship to the
academy.
Q. All right, sir. Now, in relation to the
policies of the department relative to the use of
deadly and non-deadly force, when you came into the
department did you review the policies that were
in effect, and, if so, were changes made.
A. I read the existing order which was publlshe[i
in January of ’72 I believe, signed by chief Price,
and I did it with the department counsel, Mr.
Krelsteln, and I needed to educate myself to see
what the ground rules were in the department, and
what the state required, what the city ordinances
required, if anything. And I was satisfied that we
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h a d a l e g a l d i r e c t i v e . I a l s o f e l t t h a t I t c o u l d
b e i m p r o v e d u p o n J u s t e d i t o r i a l l y , s o I c a u s e d a n o t h e r ,
w e w e n t t o w o r k o n a r e v i s i o n a n d f o u n d t h a t w e
I’e a l i y d i d n ’t v a r y t h a t m u c h f r o m i t a s w e o r i g i n a l l y
h a d t h o u g h t t h a t w e w o u l d b e c a u s e t h e f i r s t o n e w a s
q u i t e c o m p r e h e n s i v e , s o I ’m s u r e i f a n y o n e c o m p a r e s
t h e o r d e r t h a t w e c a m e o u t w i t h i n F e b r u a r y o f ’7 ^
t h a t h e w o u l d f i n d a g r e a t d e a l o f s i m i l a r i t y w i t h
t h e o n e t h a t i t r e p l a c e d .
Q - S o a n o t h e r o r d e r d i d c o m e o u t , i s t h a t
c o r r e c t , s i r ?
Y e s .
A n d l e t m e h a n d y o u t h i s a n d a s k y o u t o
i d e n t i f y i t . C a n y o u i d e n t i f y t h a t , s i r ?
Y e s , t h i s i s t h e o r d e r .
A l l r i g h t , s i r . I s t h a t o v e r y o u r
s i g n a t u r e ?
A. Yes, it is.
A n d i t i s d a t e d w h e n ? .......... .
A . I t i s d a t e d 5 F e b r u a r y 1 9 7 ^ .
Q * W o r k i n g o n t h a t o r d e r w a s a n y c o n s i d e r a t i o n
g i v i n g t o t h e e x i s t i n g T e n n e s s e e l a w ?
A . Y e s , o f c o u r s e , t h e r e a s o n a b l e n e s s f e a t u r e
o f T e n n e s s e e C o d e A n n o t a t e d 4 0 - 8 0 8 w a s o u r r e a l
g u i d a n c e , a n d t h a t w a s w h e r e w e d e r i v e d o u r a u t h o r i t y
' / l o
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1 to prescribe the use of deadly force under certain
conditions.
Q* So that was really your predicate, so to
speak, and you worked from that. Is that correct?
A. Yes, that’s correct.
Q. All right. Now, was there any thought
to create a firearms review board?
A. The department didn’t have one. They are
called various things. Again my process of
education led me to look at other departments,
particularly those who were in the forefront of
innovatibn and upgrading the quality of their work,
their professionalism. And my own experience In
the military suggested to me that we needed to have
a departmental system of crltiquelng our performance
whenever we used deadly force, whether It resulted
In a loss, loss of life, or wounding was not
Important. The fact that It was used and should It
have been In our professional Judgment, so that was
one of our two standing boards that I created. The
review board was and the tactical review board was
the other.
Q. You made reference to looking to other
police departments to get Ideas. Do you remember
whether you -- do you rememberwhere you went, the
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1 other departments that you looked at as far as --
2 A. Yes, I visited, I think I was most
3 Impressed by a full day with Chief Jerry Wilson In
4 Washington, D.C., not only his personnel, his approach
5 to the function of law enforcement officials, but
6 what his department had accomplished. And It Is
7 a very disciplined environment, great sense of
8 responsibility for everything they do. He gave me
9 a whole set of their orders on everything, and I
10 went through them In great detail. And their, firearms
11 ’ weapons discharge review, I think they call It, was —
12 I was impressed by that as well as other things.
13 Los Angeles was the other source of some reference.
14 Q. Did these other two cities have the firearms
15 review boards or something similar to that?
16 A. Yes, they have a review process, and In
17 some cases they suspend the officer temporarily
18 until. In a case status, until the matter has been
19 investigated.
20 Q. Do you know whether they had anything
21 similar to your general order with regard to lethal
22 and non-lethal force?
23 A. Yes, sir, their guidance Is essentially
24 the fleeing felon concept, and, of course, in addition
25 to the normal self defense to protect the life of
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1 another.
Is the order that you promulgated or put
Into effect similar to what the others were using.
If you recall?
Adoptually, yes, I wouldn’t go any further
than that In comparing them.
With regard to the firearms review board,
do you recall when you Implemented that?
A. The summer of '73 no, I ’m sorry, the
board was activated In February of ’73 — February
of ’7^, I'm sorry.
Q. Let me ask you If you can Identify this?
A. • Yes .
Q. All right. Is that a copy of the order?
A . Yes, It. Is .
Q. And what was the first purpose of the
firearms review board?
A. It was to critique professionally. It had
no punitive power. It had no opportunity to
render anything except as a professional evaulatlon
In police terms as to whether or not a situation
had been handled properly Involving the discharge
of a firearm. That was the purpose to render an
objective finding with the membership of the cross
section of qualified, presumably qualified membership
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Their opinion of whether in any individual instance
the officer or officers had conducted themselves
tactically and legally within our professional
intention.
MR. KLEIN: If Your Honor please,
I would move the introduction of both
of these general orders as exhibits
to this witness's testimony.
T H E C O U R T : L e t t h e m b e I n t r o d u c e d .
T H E C L E R K : 2̂ \ a n d 2 5 -
M R . DAYS: N o o b j e c t i o n .
(whereupon, the said items
referred to above were accordingly
marked Trial Exhibits 2^1 and 2 5 and
received in evidence.
Q. (By Mr. Klein) All right, sir. With
regard to the firearms review board, it does call
for the appointment, as you mentioned, certain
individuals within the police department, is that
correct?
A. The membership.
586 .
Q.
A.
Yes .
Yes .
Q. All right. Who was responsible for
appointing those people who sat on the firearms
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review board?
A. I appointed the head of the firearms
review board and then we specified membership which
Included -- It was by agreement either from the
CIBor the uniform patrol division, there were only
three people who were sped fled by Job title, and,
therefore, almost by name, one, who Is the legal
advisor, who Is to be of counsel to the proceeding,
the other Is the officer In charge of the firearms
training, which was Captain Coletta, and the
deputy chief for administrative services.
Q'- All right, sir’. Now, when the firearms
review board met, would their conclusions be
passed on to you for your review?
A. Yes, they came to me through the chief.
Q. And would you act upon It In any way?
A. Yes, I would. It was a simple format.
Again It was an In house board that we erected
ourselves to critique our own performance, so It
was an Informal report, which on call could be
supplemented with more data, but basically It
was a printed form briefing the elements of the
findings of the Incident, developing the findings
with the signatures of the members and then there
was a place where the chief and I by our own signature
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would indicate approval if we did approve.
Q, Were you authorized to take any action
in any case that Involved the use of firearms?
I*m talking about disciplinary action.
A. Yes, that authority is Inherent in the
director of police and is totally exclusive of any
boards or anything like that.
Q . All right, sir. What about referring
matters to the state attorney general for possible
criminal action.
A. v/e_I wrote to the attorney general
asking that he — we cooperatively insure that
in every case where a Memphis Police officer fires
a weapon and strikes a subject that the attorney
general assign an investigation immediately, our
homicide squad would take it up in the normal
sequence, but we asked the attorney general to
formally structure our relationship, it was being
done that way. However, we wanted to get it posltivel
as a commitment so thei’e would be no lack of
understanding by the public, the press or the
peak men of our department that this was required,
and further that.it always be presented to the
Shelby County Grand Jury.
Q. Always be presented?
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1 A. Always, that was the request that I
2 presented to the attorney general and he responded
3 with a couple of questions. I replied to that and
4 the system really was in effect.
5 MR. DAYS: Your Honor, I move to
6 strike his reference to anything that
7 the attorney general may have said as
8 being heresay.’
9 THE COURT: I will sustain that
10 objection to that part of his testimony
n which related to what actions that he
12 took and the request that he made will
13 stand.
14 Q. (By Mr. Klein) All right, sir. When did
15 that go into effect, general?
16 A. It was actually in effect before I ever
17 raised the issue to formalize it.
18 I have a piece of paper in my pocket with
19 some key dates on it for memory purposes. I don't
20 know if I'm permitted to do that.
21 MR. KLEIN: I would ask that
22 he do that.
23 THE COURT: Any objection?
24 ' MR. DAYS: No objection.
25 THE COURT: You may proceed.
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A. T h e l e t t e r t o t h e a t t o r n e y g e n e r a l w a s
d a t e d 1 1 F e b r u a r y ' 7 5 . K l s r e p l y w a s 5 M a r c h a n d
t h e n I r e s p o n d e d t o t h a t o n 1 7 M a r c h , b u t I t — t h i s
w a s m e r e l y t o c o n f i r m a n e x i s t i n g p r o c e d u r e I n
w r i t i n g .
MR. DAYS: Your Honor, I would
move to strike his testimony In
Its entirety with respect to formalizing
this procedure, since any of these
discussions occurred subsequent to
any of the events that have happened
In the case.
MR. KLEIN: May I respond?
The Incident In the case was In
February of *7^. Now, It could well be
If we are talking about this specific
Instance, could have been referred to
^he Federal Grand Jury sometime In
' 7 5 after the Implementation. Also
what he's saying Is he was continuing
to carry out a policy or procedure
that was already In effect.
MR. DAYS: Your Honor, If I
understood his testimony, there was
an arrangement made that formalized
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1 the Involvement of the attorney general's
office from the time the Incident occurred
until perhaps some presentation to the
grand Jury. I assume that If the
letter requesting this formalized
arrangement was sent to the attorney
general on February 1 1 , 1 9 7 5 , there
could not have been a formal arrangement
for an attorney general's staff person
to be Involved In the outset of the
Investigation of this matter, unless
we assume from the outset of this
matter that It would be several months
after It occurred.
MR. KLEIN: Your Honor, I will
ask him one other question I think that
may clarify the matter.
THE COURT: You may, sir, subject
to the continuing motion to strike.
Q. (By Mr. Klein) Do you know whether a
member of the attorney general's office was called
In prior to the time that you Implemented this
program to Investigate matters where there was a
shooting taking place?
A. In every Instance to my knowledge.
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3
o b j e c t i o n , t h a t i s h e w a s J u s t
4
c a r r y i n g o u t a p r o g r a m t h a t w a s
5
a l r e a d y i n e f f e c t .
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T H E C O U R T : W e l l , I ’m g o i n g t o
t
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s u s t a i n t h e o b j e c t i o n w i t h r e g a r d
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t o t h e t e s t i m o n y a s t o w h a t m a y
9
h a v e t r a n s p i r e d i n F e b r u a r y o f ’ 7 5
)
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o r t h e r e a f t e r . Y o u m a y a s k h i m
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1
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a t o r a b o u t O c t o b e r t h e 3 r d , 1 9 7 ^ .
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13
M R . K L E I N : I w i l l a s k t h a t
1
14 q u e s t i o n ^ Y o u r H o n o r .
i1
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Q . ( B y M r . K l e i n ) D i r e c t i n g y o u r a t t e n t i o n
j
16 t o O c t o b e r 3 , 1 9 7 ^ , w h a t p r o c e d u r e s w e r e i n e f f e c t
1' <
1
17 W i t h r e g a r d t o r e f e r r i n g m a t t e r s t o t h e a t t o r n e y
i
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i
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20 T h e y i n t u r n w o u l d n o t i f y t h e i r p o i n t o f c o n t a c t i n
i
•5
21 t h e i n v e s t i g a t i v e s t a f f o f t h e a t t o r n e y g e n e r a l ’ s
j 22 o f f i c e . T h e y i n t u r n w o u l d d i s p a t c h a n i n v e s t i g a t o r
23 t o t h e s c e n e J u s t a s f a s t a s t h e y c o u l d .
! n
24 Q . A n d w e r e m a t t e r s a t t h a t t i m e r o u t i n e l y
25 p r e s e n t e d t o t h e S h e l b y C o u n t y G r a n d J u r y ?
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A. Yes, they ware.
Q. All right. Are you familiar with a
particular incident Involving officer Hymon?
,A . ' ■ - lam.,
?
Do you know of your own knowledge whether
that matter was presented to the Shelby County
Grand Jury?
A. Yes.
Q, Do you know the results of the Shelby
County Grand Jury's deliberations In that case?
MR. DAYS: Objection, Your
Honor, until the counsel Is able to
elicit from the witness the basis
of his personal knowledge.
THE COURT: I'm going to overrule
the objection. As I understand the
question he asked him to his personal
knowledge and the witness responded,
yes.
Q, (By Mr. Klein) V?hat was the outcome of
the grand jury Investigation?
A. No true bill.
MR. KLEIN: Your Honor, I know
we have been Into this before and It
may be objectionable. I will tell the
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Court what I'm going to ask first.
I would like to ask him what the.
results of the firearms review
>
board findings were in connection
with Officer Hymon, that will be my
next question, so I say it preliminarily
so --
MR. DAYS: Your Honor, at this
time I v/ould like to make an objection
to the inclusion of the results of
Grand Jury to the extent again
there is no indication of what charges
were presented to the grand Jury with
regard to this matter, who appeared
before the grand Jury or anything of
that nature. There vjould be a question
certainly of its relevancy to the
evidence that wasput before the Court
already and that would be submitted
to this court.
COURT: I*m going to overrule
the objection. Again, I think that
relates to the weight, faith and credit,
there may be different standards,
different witnesses, all sorts of
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1 variations, but I think that pertains
to what extent that is weighed..
I think I will overrule the objection
on the basis of relevancy.
MR. DAYS: Very good.
THE COURT: You may proceed in
the other area and if counsel has
objection to any of that line of
inquiry, I ’m sure that I will hear
from him.
(By Mr. Klein) All right. Did you review
the matter, the firearms‘review board findings in
connection v̂ rlth officer Hymon?
A. I dld-
5 95 .
Q.
Q. And what were the conclusions by the board?
A. The conclusion was that the use of
deadly force was Justified.
Q. All right, sir. Do you know whether any
action was taken against Officer Hymon as a result of
the use of deadly force?
There was no punitive action. The customary
relief from duties pending outcome of the
investigation. Our officers sometimes think that is
punitive, but it has no such purpose, there was no
action taken.
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Q. Is the off.f.cer relieved of duty
automatically, is that what you are saying?
A. Yes, it happens immediately, the senior
officer arriving on the scene is Instructed to
preserve the scene, and the right agencies in to
commence the investigation, get the officers
started on their statement and to relieve them
from normal duties pending.the outcome.
Q, All right, sir. Was he then later restored
to duty?
A. Yes, he was.
Q. Did you take dny action, disciplinary
action against Officer Hym.on as a result of this
incident ?
A . No, I did not.
Q. Did you feel that it was necessary to
take any disciplinary action against Officer
Hymon?
A. I hope I don't sound facetious, I never
hesitated to take action when I thought it was
warranted and I think my record probably reflects
that I did not feel that it was Justified in the
case .
Q.
A.
You didn’t feel what was Justified?
Any disciplinary action against the
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officer.
Q. Now, General, with regard to the ammunition
that was used, or was used, I will confine my
questions to October of 197^ or thereabouts,
are you, are you familiar with the type of ammunition
that was being used by the officers of the Memphis
Police Department?
I am.
^̂ 3-t type of ammunition was being used?
The .38 Special jacketed hollow point.
All right, sir.
12 5 grain.
All right, sir. Were you in your position
of director when change was made to use that
( ■ ' ■particular type of ammunition?
A . I was. <
Q. Tell us ibrlefly, sir, if you would, what
was behind the change and what affected your
decision to the extent that you participated in
the decision to make the change?
One of the early tragedies during my
tenure in the department was what they call the
Kansas Street Shootout.
I wish I could give the date, it was
in the spring of ’73. At that time, one of our
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A.
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1 police officers was confronted with a homicidal
maniac who killed several people and ultimately
killed the officer, David Clark. Officer Clark
had struck the assailant several times and again
I can't recollect how many, but It was sufficient
to raise concern In the department about the
adequacy of our sldearm. We by then, had a tactics
and equipment board, and I discussed the problem
with them. At that time the union was raising a
lot of -- raising the Issue very strongly, they
suggested we should go to a .357 Magnum or nine
millimeter, and I, as the administrator of the
department, told them we wouldn't make any change
until we evaluated the thing technically and
tactically and that Is what our T&E board was for.
The problem was referred to them and they In turn
went to the best source In our department, our
firearms training center where tests were conducted,
recorded, the outcome, analysis were made and
presented to the T4E board. The T&E board concluded
t^at a change In the weapon was notJustlfled. It
would entail a great deal of expense, among other
things, that the .38 police Special was basically
still accepted by most departments In the country
that we should continue but use Improved ammunition
598 .
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̂ for stopping power. Reference was made to the FBI
2 agents and other agents using this hollow point
3 round.
4 I did not Issue an order directing that
5 we change over to It, It was Just a natural
6 transition In equipment that we commenced, that
7 we felt was a solution to a problem, and we began
8 procurement of the Improved ammunition which has
9 some safety features to It that were most appealing.
10 It replaced the 1 5 8 grain roundnose round.
11 Q. Did you rely at all on Captain Coletta
12 In making your decision to change?
13 A * I r e l i e d o n m y o w n r e a c t i o n t o s o m e
14 ^ ® ^ ^ l n g t h a t I d i d a n d h i s t e s t a n d t h e J u d g m e n t
15 the T&E board. It was sort of a composite that
16 led me to conclude that this should be done, and
17 therefore, I approved the transition.
18 Q. This T&E board. Is this one of the two
19 new boards that you mentioned earlier?
20 Right, correct.
21 Q . T h a t y o u p u t I n t o e f f e c t w h e n y o u c a m e
22 In?
23 A. That's correct, to standing boards, that
24 Is correct. I'm sorry, there were standing boards,
25 the merit review board, also.
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Q . W h a t w a s t h e p o w e r s o f t h a t ?
A . T o h e a r a p p e a l s f o r d e p a r t m e n t a l , t o
i l l u s t r a t e w h a t w o u l d b e e q u i v a l e n t t o n o n - J u d i c l a l
p u n i s h m e n t I n t h e m i l i t a r y u s a g e a n d f o r c o r r e c t i o n
o f r e c o r d s , a n y k i n d o f a p p e a l t o h a v e s o m e t h i n g
s e t s t r a i g h t o r d e c i d e w h e t h e r o r n o t t o c o m m e n d
s o m e o n e . I t w a s n o t b i n d i n g , b u t I t w a s h e l p f u l .
Q . O n t h e o t h e r e n d o f t h e s p e c t r u m , d i d y o u
h a v e a n y p o l i c y o f d i s c i p l i n i n g a n y m e m b e r s o f t h e
p o l i c e d e p a r t m e n t I n a n y r e s p e c t w h a t s o e v e r , d i d y o u
h a v e a n y p o l i c y o r a n y t h i n g t h a t y o u d i d w i t h r e g a r d
t o t a k i n g t h e n e c e s s a r y a c t i o n a g a i n s t p o l i c e
o f f i c e r s w h e r e I t w a s n e e d e d ?
A . I p r o b a b l y c r e a t e d m o r e t h a n a n y o n e e l s e
c r e a t e d t h e u n i o n b e c a u s e o f m y p o l i c i e s , w h i c h
w e r e v e r y v i g o r o u s a n d a l m o s t I m m e d i a t e l y u p o n m y
a r r i v a l I; p u t t h e m I n b e c a u s e I f e l t t h a t t h e y w e r e
n e e d e d , a n d t h e r e a c t i o n w a s a n o t h e r t r y a t u n i o n i z i n g
w h i c h s u c c e e d e d a t t h a t t i m e .
Q . W h y w o u l d y o u , w o u l d y o u e x p l a i n J u s t
b r i e f l y w h y t h a t c a u s e d t h e u n i o n t o c o m e I n t o b e i n g
a s w i t h r e g a r d t o y o u r p o l i c y t h a t y o u s a y y o u
i m p l e m e n t e d ?
A . W h e n I b e c a m e d i r e c t o r I w a s f a c e d w i t h
t w o d i l e m m a s : O n e w a s t h e f i n d i n g o f a s e l e c t e d
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1 board, three local attorneys who had Investigated
some documentation called the lazy files and there
were approximately 186 cases of misconduct alleged
on the part of Memphis police officers ranging
from misconduct to criminal misconduct, that was
one of the things that was handed to me immediately.
And the other, of course, was a little budget
submission. We got to work on both of those very
fast, and I relied heavily on Mr. Krelsteln, for
example, to assist me in laying out a work schedule
to get at the lazy files so that we could assure
%
the public that they were not going to be Ignored,
they were going to be investigated to the extent
that you can do much about things that are two,
three, four, five years old, but at least we could
determine a pattern, it would be instructive for
future dealings. This led to some statements by
me regarding conduct, ethical conduct and public
service and those kind of things, and I made some
very strong statements about those who were not
meeting the standards. I called some people in
whom I knew to have been involved in dishonest
practices under the cloak of their voice who I
could not do anything else about except tell that I
knew and that I Intended to do something about it.
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1 that I could and that they were on notice, those
kinds of things plus my public statements led the
officers, many of them, absolutely with nothing to
hide In their own performance, but they probably
felt they needed some protection from someone who
'̂ as making so much noise about discipline, that Is
what I think led to the success of the Union on
^hat round.
Q. This Is all an effort on your part to
run an efficient organization?
To open the department up to the public,
which we Invited on every occasion.
Q. Were you concerned about public opinion
as far as the conduct of the police department
was concerned?
I was concerned about the public's
acceptance of our policies, yes, I think that Is
the descriptive term that they understand why we
had to do certain things, and the unpleasant things.
Q. Did you make any concerted effort to get
to the people or different groups within the
community to explain your position?
I went to places in times that I was
advised not to do to meet with people, hostile people
I had been shouted at and threatened and called all
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1 k i n d s o f t h i n g s , b u t w e J u s t s o r t o f t o o k o n e d a y a t
a t i m e a n d w e b e g a n t o h e a r s o m e g r u d g i n g a d m i s s i o n s
t h a t w e w e r e b e g i n n i n g t o o p e n t h e p o l i c e u p . T h e y
w e r e n ' t u r g i n g c o m p l i m e n t s o n a n y o n e , t h e y w o u l d
s a y w e t h i n k y o u a r e t r y i n g .
M R . K L E I N : T h a t ' s a l l .
M R . D A Y S : W e h a v e n o c r o s s
e x a m i n a t i o n . Y o u r H o n o r .
T H E C O U R T : Y o u m a y s t e p d o w n ,
s i r .
( W i t n e s s e x c u s e d . )
T H E C O U R T : Y o u m a y c a l l y o u r
n e x t w i t n e s s .
M R . K L E I N : O f f i c e r H y m o n .
» » « « »
603 .
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O U H .
1 E L T O N R I C H A R D H Y M O N ,
2 h a v i n g f i r s t b e e n d u l y s w o r n , w a s e x a m i n e d a n d
3 t e s t i f i e d a s f o l l o w s :
4 D I R E C T E X A M I N A T I O N
B Y M R . K L E I N :
5
6 Q. S t a t e y o u r n a m e , p l e a s e .
7 A . E l t o n R i c h a r d H y m o n .
8 Q. M r . H y m o n , y o u a r e g o i n g t o h a v e t o s p e a k
9 o u t , p l e a s e , s i r .
10 H o w d o y o u s p e l l y o u r l a s t n a m e ?
11 A . H - y - m - o - n .
12 Q. H o w o l d a r e y o ’u , p l e a s e ?
13 A . 2 7 .
14 Q. 2 7 ?
15
A . Y e s .
16 Q . A n d w h e r e d o y o u r e s i d e ?
17 A . 4 6 7 S h o f f n e r .
18 Q. I s t h a t i n M e m p h i s ?
19 A . M e m p h i s , T e n n e s s e e .
20
Q. A n d h o w l o n g h a v e y o u r e s i d e d i n M e m p h i s ?
21 A . I h a v e b e e n i n M e m p h i s a l l m y l i f e .
22 Q. A l l y o u r l i f e .
23 A . Y e s .
24 Q. D o y o u h a v e f a m i l y h e r e ?
25 A . Y e s .
V >'l ry
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1
A .
Q.
A .
Q. A n d h a v e t h e y l i v e d I n M e m p h i s
Y e s .
F o r a n e x t e n d e d p e r i o d o f t i m e ?
Y e s .
Q * A l l r i g h t , s i r . W h e r e d i d y o u a t t e n d s c h o o l .
O f f i c e r H y m o n ?
A . I w e n t t o J e t e r H i g h S c h o o l i n M e m p h i s ,
T e n n e s s e e .
Q * A l l r i g h t . A n d t h e n d i d y o u g o t o c o l l e g e ?
Y e s , I d i d .
Q * A n d w h e r e d i d y o u g o t o c o l l e g e ?
A . I w e n t t o T e n n e s s e e S t a t e U n i v e r s i t y i n
N a s h v i l l e , T e n n e s s e e .
Q * A l l r i g h t . A n d d i d y o u g r a d u a t e f r o m
T e n n e s s e e S t a t e ?
Y e s , I d i d .
Q * A n d w h a t d i d y o u m a j o r i n o r w h a t d i d y o u
g e t y o u r d e g r e e i n ?
A . I m a j o r e d i n E n g l i s h a n d g r a d u a t e d w i t h a
B S d e g r e e .
Q . A B S d e g r e e ?
A . Y e s .
Q * A l l r i g h t , s i r . U p o n l e a v i n g — l e t m e
a s k y o u t h i s , d i d y o u s e r v e i n t h e m i l i t a r y ?
A . N o , I d i d n o t .
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Q. Upon leaving college, what Jobs did you
have leading up to your employment with the Memphis
Police Department?
A. After leaving Tennessee State I was employed
I believe in October of that same year of 1970 with •
the Ft. Pillow State Farm in Ft. Pillow, Tennessee.
Q. All right, sir. What type of work did you
do there?
I started off as a treatment service
counselor for the residents at Ft. Pillow and later
elevated to institutional parole officer.
Q. What did you do as institutional parole
officer, what was your Job?
A. As institutional parole officer I was
charged with preparing summaries of the individual
residents that were to meet the parole board. I was
to work, to prepare those summaries for the board
on their behalf and if these individuals were
recommended for parole, then it was my Job to follow
up with their recommendations by helping the resident
to secure employment on the outside by trying to
bring in people of the various types of businesses to
orient them to the opportunity that they had once
^hey were released.
Q. All right, sir. Did you hold any other
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2 5
position at Ft. Pillow?
A. Treatment service counselor and .1 was
a member of the disciplinary board a while there.
Q. All right, sir. How long did you stay
at Ft. Pillow?
A. I stayed at Ft. Pillow two years and eight
months.
• All right. And that would have you leaving
there, when, sometime In 1972 or thereabouts?
A. I left there In *73, I believe.
Q. All right. V/hat did you do when you left
Ft. Pillow?
I left Ft. Pillow and came to the Memphis
Police Department.
Q. Was there any particular reason why you
left Ft. Pillow?
A. Yes, It was, first of all It was the
distance that I had to travel to Ft. Pillow being
65 miles from the city limits, an exhausting and
financial strain on me to have to go that far, so
I sought another closer location to work, and I
chose the Memphis Police Department.
Q. Any particular reason why you chose the
Memphis Police Department? Did you have any feelings
about being a policeman one way or the other, or what
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made you decide to become an officer?
A. Well, I had — I always really loved
law enforcement, and I guess being at Fort Pillow
somewhat affected my decision, also, because
‘̂®3-ling with people who are law violators, as such,
and that is always something that I wanted to do
in life, and I had the opportunity and I was
talked to by one of the members of the personnel
department for the city of Memphis. And he was
sort of explaining the Job to me and sort of
encouraged me to come.
Well, did it have anything to do with
salary, would you make any more money as a police
officer initially?
' X
A. When I first started off I had weighed
that possibility to leave Fort Pillow and come to the
Memphis Police Department, I would have taken a
cut in salary. However, the salary raises or
increments in the salary were such that if I were
in Memphis, say, for a six month's period of time,
then I would be making more than I would have been
when I left Fort Pillow, so certainly the salary
had a lot to do with it.
Q* All right, sir. Do you remember approximate
when you applied for a Job with the Memphis Police
ly
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1
6 0 9 .
D e p a r t m e n t ?
A . I t h i n k I a p p l i e d a t s o m e t i m e a b o u t
N o v e m b e r o r D e c e m b e r o f * 7 2 I b e l i e v e , a n d I w a s
a c c e p t e d f o r t h e J a n u a r y c l a s s , I t h i n k i t w a s t h e
J a n u a r y c l a s s o f * 7 3 , a n d I l e t m y p a r e n t s t a l k
m e o u t o f g o i n g t o t h a t a n d d e c i d e d t o s t a y o n a t
F o r t P i l l o w f o r a b o u t s i x m o r e m o n t h s , a n d I c a m e t o
t h e M e m p h i s P o l i c e D e p a r t m e n t i n J u l y o f * 7 3 .
Q . W a s t h e r e a c l a s s s t a r t i n g i n J u l y o f * 7 3 ?
A . Y e s , s i r , t h e r e w a s .
Q . D o y o u r e m e m b e r w h a t s e s s i o n ^ t h a t w a s ?
A . T h e 36t h s e s s l d n .
Q . A n d h o w l o n g d i d t h a t t r a i n i n g s e s s i o n
l a s t , d o y o u r e c a l l ?
A . I t l a s t e d e i g h t w e e k s , I b e l i e v e .
Q . A l l r i g h t . A n d d i d y o u g o t h r o u g h t h e
w h o l e t r a i n i n g s e s s i o n , a l l t h e c o u r s e s a n d
r e c e i v e a l l o f t h e I n s t r u c t i o n s t h a t w a s g i v e n ?
A . Y e s , I d i d .
Q.
f r o ,
A l l r i g h t . D i d y o u r e c e i v e i n s t r u c t i o n s
'm Captain Coletta?
A. Yes, I did.
Q. And what particular phase of the police
work did you receive the instructions from him?
A. I received instructions from Captain
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1 Coletta and the use ol' firearms, safety, the function
of the firearm Itself, and more specifically how
to effectively --
Q. Was there any Instruction as to when you
could or should or when you should not use the
firearm or lethal force?
A. We received that Instruction, It wasn't
directly from Captain Coletta, we received some
iĴ lnor refreshment types through him, but that was
basically through the legal advisor.
Q, Do you know who that was at that time?
A. That was Ronald Krelsteln.
Q. All right. And In the course of your
training I guess you were given certain proficiency
tests with regard to the use of firearms. Is that
correct?
' A . , Yes, sir, we were .
Q. And did you have to meet certain standards
before you could graduate?
Yes, we did.
Q. All right. Wereyou given written tests
as well as performing physical type tests?
A. In the use of the firearm?
Q. Yes.
A. Yes, I believe we were.
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completed your training successfully?
A. Yes, I did.
All right. And after that what was your
first job assignment?
A. After completion I believe my first
job assignment was — I was assigned to the North1
Precinct, what is now the west precinct, 2^7
Washington.
Q. And what was your duties, what type of work
were you doing?
A. I was in the squad car basically cruising
the area.
All right. Now, let me direct your
attention to October 3, 197^, what were your duties
at that particular time?
A. I v/as assigned to the squad car on the
3rd of October *7^ and was running car 128.
Q. All right. Were you assigned to a particular
section of Memphis?
A. Right.
• What was that, what general area are we
talking about?
A. Generally we would call it, I guess. North
east Memphis.
6 1 1 .
Q. All right. Then, I take it that you
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7 3 9 V o l l e n t l n e , w a s t h a t i n y o u r a r e a a t t h a t p a r t i c u l a r
t i m e ?
A . N o , i t w a s n o t .
Q . W a s i t c l o s e t o y o u r a r e a ?
A . I t w a s r e l a t i v e l y c l o s e . I t r e a l l y w a s n ' t
t h a t c l o s e .
Q . I s e e . L e t m e a s k y o u , u p t o t h a t p o i n t ,
I ' m t a l k i n g a b o u t u p t o O c t o b e r 3 , 1 9 7 ^ 5 h a d y o u e v e r
h a d a n o c c a s i o n t o u s e y o u r f i r e a r m , o t h e r t h a n
I ' m t a l k i n g a b o u t , f o r p r a c t i c e p u r p o s e s ?
A . N o , I h a d n o t .
y o u h a v e t o g o b a c k t o t h e f i r i n g
r a n g e p e r i o d i c a l l y s o t h e y c o u l d c h e c k y o u r p r o f i c i e n c y
i n t h e u s e o f t h e f i r e a r m s ?
612.
Q, A l l r i g h t . Now, V o l l e n t l n e , a n d s p e c i f i c a l l y
A .
Q.
A .
Y e s , w e d i d .
H o w o f t e n d i d y o u g o b a c k ?
T h e y h a d a s c h e d u l e t o g o b y . W e w e r e , m o r e
o r l e s s , d e m a n d e d t o g o b a c k o n c e a y e a r . H o w e v e r ,
w e c o u l d s e l e c t a n y t i m e b e t w e e n t h a t a n d g o b a c k o n
o u r o w n .
^ n d w h a t t y p e o f w e a p o n d i d y o u h a v e a t
t h a t p a r t i c u l a r t i m e , O c t o b e r 3 o f ' 7 ^ ?
A . A S m i t h & W e s s o n . 3 8 S p e c i a l r e v o l v e r s i x
s h o t .
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Q. Did you own the revolver or was that
Issued by the police department?
A. That was police Issue.
Q. The ammunition that you were Issued, was
that also police Issued?
That was police Issue.
W h o w a s y o u r p a r t n e r o n O c t o b e r 3 , 1 9 7 ^ ?
A. Patrolman L.B. Wright.
Q. All r i g h t . A n d w h a t w a s y o u r d u t y h o u r s
o n O c t o b e r 3 , * 7 ^ ?
A. We were working from il:00 to 12:00.
Q. Was that 4:00 in the afternoon to 12:00
midnight?
A . Yes, It Is .
Q. And I take It that you came on duty at
4:00 that day?
A. Yes, sir.
*3. And your particular duties were what at
that time?
A. My particular duties were to run ward 128.
Q. All right. Would you do that In a squad
car?
A. Yes, we were Just generally patrolling
the area, routine patrol.
Q. Do you recall getting a call with regard to
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1 a n I n c i d e n t a t 7 3 0 o r 7 3 7 I b e l i e v e , V o l l e n t l n e
t h a t p a r t i c u l a r e v e n i n g ?
A . 'fes, I d o .
Q . T e l l m e h o w y o u f i r s t f b u n d o u t a b o u t I t ?
A . I w a s , f i r s t o f a l l I w a s I n t h e f i r e h o u s e ,
I b e l i e v e a t C h e l s e a a n d S t o n e w a l l , a n d m y p a r t n e r
c a m e I n a n d t o l d m e t h a t w e h a d r e c e i v e d a c a l l o f
a- p r o w l e r I n s i d e 7 3 7 V o l l e n t l n e , a n d w e p r o c e e d e d
f r o m t h e r e t o t h a t l o c a t i o n .
Q . A l l r i g h t . W h a t d i d t h a t I n d i c a t e , y o u
s a y p r o w l e r , d i d t h e r e p o r t I n d i c a t e t h a t t h e r e w a s
a p r o w l e r I n s i d e a h o u s e , ’ I s t h a t t h e r e p o r t t h a t
y o u g o t ?
A . V/e r e a l l y d i d n ’t k n o w w h e t h e r I t w a s a
r e s i d e n c e o r b u s i n e s s , b u t I t d i d I n d i c a t e p r o w l e r
I n s i d e .
A n d t h e g i v e n a d d r e s s ?
7 3 7 V o l l e n t l n e . I d i d n ’t r e c e i v e t h e
c a l l . M y p a r t n e r m a y h a v e b e e n t o l d t h a t I t w a s
a r e s i d e n c e .
6l4 .
A .
Q .
A .
Did he come and get you?
Right.
And what did you do next? '
We left that area and proceeded In the
d i r e c t i o n o f t h e c a l l .
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how long it took you to get from where you were at
the fire station to the residence?
A. Well, it took us a little longer than
usual. I think it was, may have been about eight
or nine minutes because we got lost on the way
going to the call.
I see. Was that because you weren't
familiar with the area?
A. Right, you know, we thought the street
was one place and the street ended and we thought
that it was the, we thought it was a bad number,
so to speak, and we later discovered that it
extended on the north side of Chelsea.
Who was driving?
My partner, Leslie Wright.
Q. All right. And then tell me what happened,
when you arrived at the, I take it that you went
to 737 Vollentlne?
A. Yes, we did.
615.
Q. A l l r i g h t . Do y o u k n o w a p p r o x i m a t e l y
Q. All right. Tell me what happened then?
• When we arrived on the scene, if I recall
correctly, we were going east down Vollentlneto
approach 737 and we arrived on the scene and there
was a lady standing out on the porch and pointing in
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6l6.
a n e a s t w a r d l y d i r e c t i o n t o t h e h o u s e n e x t d o o r , a n d
s h e w a s m u m b l i n g s o m e t h i n g , b u t w e c o u l d n o t h e a r
̂ '5
w h a t s h e w a s s a y i n g , s o w e w e r e s t i l l i n t h e c a r ,
b o t h o f u s s i t t i n g i n t h e c a r , s o h e a s k e d h e r
o u t l o u d , " W h a t d i d y o u s a y ? " S h e J u s t m u m b l e d
a n d m a d e a m o t i o n t o w a r d t h e h o u s e n e x t d o o r .
Q, W h a t w o u l d t h e h o u s e n e x t d o o r b e ?
\
A. 7 3 9 . A n d s i n c e I c o u l d n ' t u n d e r s t a n d
h e r , t h e n I g o t o u t o f t h e s q u a d c a r a n d w e n t u p t o
t h e p o r c h w h e r e s h e w a s a n d s h e p o i n t e d a g a i n a n d
s a i d , " T h e i r b r e a k i n g i n n e x t d o o r . "
Q. Now, what did she say?
She said, "They are breaking in nextA.
d o o r ."
Q.
A.
Q.
T h a t i s h e r w o r d s a s b e s t y o u r e c a l l ?
Y e s , i t i s .
A l l r i g h t . A n d t h e n w h a t d i d y o u d o ?
W h a t d i d y o u r p a r t n e r — w a s h e s t i l l i n t h e p o l i c e
c a r ?
A . Y e s , h e w a s s t i l l i n t h e p o l i c e c a r .
Q . A l l r i g h t . W h a t d i d y o u d o t h e n ?
A . I w e n t b a c k t o t h e s q u a d c a r , t o l d h i m
w h a t s h e h a d t o l d m e , t h a t t h e y w e r e b r e a k i n g i n
n e x t d o o r , t h e y w e r e b r e a k i n g i n , h o w e v e r s h e p u t
i t , I g o t m y f l a s h l i g h t o u t o f t h e c a r a n d p r o c e e d e d
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to the southwest corner of the house.
Q. All right. Did you give any instructions
to your partner at that time?
A. I think I roughly recall telling him to
go around to the other side.
Q. All right. Let me ask you this about
Instructions. Is either one of you or were either
one of you, soto’speak, in charge at that time?
In other words, were you superior to Officer Wright
or is he superior to you? What I’m getting at,
were either one of you in command of the situation
at that time?
A. Generally the senior man was in command
and I was the senior man at that time.
Q. So you told Officer Wright to go around
to the other side of the house?
A. Right.
Q. All right. Then tell me exactly what
you did step by step?
A. After I told him that I proceeded toward
the southwest corner. I had my flashlight In
my hand. And sometime between the time that I
Sot there it was a rapid procedure, so I assume I
immediately started drawing my service revolver
and I got to the southwest corner of the house, and
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when I got to the corner and looked around, then I
heard the door, screen door open and slam and I
saw a figure run across a streak of light that was
there toward the south of that location. After I
had seen that I shined, I started my flashlight
shining where I had seen him from the beginning In
a circular motion to try and find him, and I picked
up a young male on the fence or what appeared to be -
a young male on the fence.
Q. All right. When you say a streak of light,
what was the lighting situation out there at that
time?
A. The lighting was very poor. I recall the
lady who gave us the directions from the beginning
telling us that they were breaking In next door,
somehow or another flicking on the porch light.
I absorbed most of that, the light, because most of
That light was to the side of me. It was just a ray
of light going across the rear door. However, the
back portion fenced In area on back was dark, I
couldn’t see anything.
Q. When you say fenced area, therehas been
some reference to a chain link fence that ran across
the back property line.
A. Right, the chain link fence.
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1
2 chain link fence?
A. No, I could not. ~ =
Q. Did you have any idea at that time what was
beyond the chain link fence?
A . No, I did not.
Q. All right. You say that you finally
picked up this male on the, in the back by the fence,
is that what you —
A. Yes.
Q- All right. What part of the yard was he
in when you first plcked'hlm up?
A. He was in the southeast corner of the yard
over there an outer house.
Q. All right. If I may, let me refer to this
exhibit that is marked Exhibit 6.
THE COURT: Counsel may approach.
MR. DAYS: Thank you. Your Honor.
Q. (By Mr. Klein) If you would take this
pointer. Officer Hymon, let me ask you this, does this
simulate the location at 739 Vollentlne?
A. I would think that is a reasonable
facsimile,
Q. Now, show us now v/hlch side of the house
that you came around when you left your car, when
6 1 9 ^
Q. All right. Could you see beyond the
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1 you say that you proceeded around the side of the
house?
O.K. I came around at an angle to aboutA.
here.
All right. Now, that Is the, what corner
of the house?
A. The southwest corner.
Q. All right. Was there a fence in front of
you. Immediately in front of you?
A. Right, there was a fence about in the
area here that ran from the corner of the house to
the chain link fence in the rear.
Q. All right. And how high would you say
that fence was?
A. I would say it was from three and a half
to four feet high.
Q. All right. Now, show me where you said
the someone ran out of the back of the house?
I think you said that you heard a screen door slam
first — where were you approximately, if you remember,
when you heard the screen door slam?
A. I was about in the area Just adjacent to
this where I could see, you know, in a straight line
almost in a straight line down in that direction.
Q* You are pointing Just about to the corner
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O f t h e house?
A. Right.
Q. All right. Now, show me where you said
that the person running out of the back door went to
the chain link fence and was by the fence when you
put your spotlight or flashlight on him, is that what
you said?
A. Right.
Q. Where a t th e f e n c e was he when you pu t
your flashlight on him?
A. I was about in the area because he ran
at an angle here, and he got in the area somewhat
close to the outer house and close to the corner
of the outer house near the fence.
Q. . • You would be talking about the southwest
corner?
• ' ' p •
■ A , ^^Sht.
Q. Of the outer house?
A. Right.
Q. All right. What did you do — well, let
me ask you this, did you say anything at any point?
A. Yes, after I had picked him up with my
flashlight I immediately yelled, "police, halt."
And after I had yelled,"Police, halt," I went to call
to ray partner, you know, a matter of seconds, I went
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1 to holler to my partner, "He*s on the fence." And
my partner said, "What, he’s on the fence?" And
by that time when I told him that I made a couple of
steps this way In the direction and Just as I did
^hat he started over the fence.
Q. When you say you made a couple of steps,
now, which direction are you -- show me where you
were when you started to make It?
I was here and I made a couple of steps
In the direction toward the fence.
Q. Why were you making steps toward the
fence?
̂ under. Initially under the Impression
that once I Identified and he stopped momentarily
and looked at me, that he was going to stay there.
I didn’t want to necessarily gamble on my partner
getting along, I made a couple of steps In his dlrectlc
hoping In the future to go over the fence and we were
both going to apprehend him.
And then you say, well, tell me then what
did he start to do as you made your couple of
steps toward the, I will call It the chicken wire
fence?
A. About the time that I made one foot In front
of the other, made thestep up toward the fence and
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got even with the fence he started over the fence
I n a l e a p i n g , I g u e s s , r e a l l e a p i n g m o t i o n .
Q. All right. Then what did you do next?
A. That Is when I fired one shot and he
fell and draped across the fence.
All right. Let me ask you this question.
Why did you fire a shot at that time?
A. Well, first of all It was apparent to me
from the little bit that I knew about the area at
the time that he was going to get away because,
number 1, I couldn't get to him. My partner then
%couldn't find where he was because, you know, he
was late coming around. He didn't know where I was
talking about. I couldn't get to him because of
the fence here, I couldn't have Jumped this fence
and come up, consequently Jumped this fence and
caught him before he got away because he was already
up on the fence. Just one leap and he was already over
the fence, and so there Is no way that I could have
*^^^ght him.
Q. Now, was this all happening rather quickly.
A. It was happening very quickly.
Q. All right. Now, after you fired your shot,
what did you do?
After I fired the shot I recall my partner
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2 hit very bad, and I was stepping over the .fence
2 and coming in that direction.
4 Q, You say "stepping over the fence" you are
5 talking about the chicken wire fence?
6 A. Right, the chicken wire fence.
7 Q. Did you have any difficulty getting over
8 the chicken wire fence?
9 A. No, I didn't have any difficulty. The
10 fence was the size that I, you know, could step over
11 it.
12 Q. Well did you khow at or immediately before
13 you shot what was Immediately on the other side of
14 the chicken wire fence, and did you know what was
15 In the yard or anything about the terrain In the
16 yard between you and where he was on the fence?
17 A. I didn't know what was Immediately what
18 was on the other side .of the fence. I do recall
19 seeing some other articles in the yard that would
20 have been close to me, clothesline, clothes and
21 tub and what have you, which would have closed me
22 down to perhaps assure me of having not got, caught
23 him, having to push these articles out of the way,
24 and I surely wouldn't have found him In the dark.
25 Q. Let me ask you this question, was there any
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»'f r* ‘
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1 question in your mind that you could not apprehend
him on foot?
6 2 5 .
A. Definitely so. Perhaps if the area behind
him had been light and I would have known the
general area I would have, you know, I would have If
I could have seen where he went at a later time, what
I'm saying from where I was I couldn't have gotten
to him and have got him without him getting away.
If there had been a big floodlight where I could
see —
^ The fact that you didn't know what was. on
the other side of the chainllnk fence, did that
Influence you in any way at all about your decision?
A. Definitely so.
Q. All right. Did you have any concern about
being able to get over the chainllnk fence?
A. Definitely so, because I could have easily
stepped over the chicken wire fence, but, you know,
I had my flashlight in one hand and my pistol In
the other hand and then we got the handcuffs and
what have you on, which is not exactly light, and
I would have had to somehow run and hold onto my
flashlight and hold onto ray pistol and somehow spring
up and get on across the six and/or six and a half
foot. No doubt I would have fallen with all of that
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1 in my hand, and then after that I would have to
try and find out where I was.
Q. How tall are you?
^ • I’m 6-^,
Q. Did you think that you would have any
difficulty, aside from the fact that you had a
flashlight In your hand and a pistol In your hand,
did you anticipate any difficulty In getting over the
chalnlink fence. Just climbing It without any
handicap, such as a flashlight or pistol?
A. I think It would have been some kind of
problem. It is not exact'ly easy for a 6-̂ 1 man to go
over a six. foot fence that way. It would have
taken some effort.
What kind of footwear did you have no?
A. We had on what they call Jumper boots, they
are somewhat heavy boots.
*5. Would there be any way that you can put
your foot anyplace In a chain link fence where you
can put your foot to help you get over the fence?
A. No, It would have had to have been strength,
flipped myself over the fence and then got up and
tried to go from there. There Is no way to put
anything, you know, as far as a stirrup to put your
In.
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Q. Did you have any concern about the subject
being able to outrun you?
Yes, I did, because I have always got that
concern, as a matter of fact, well, because of the
fact he was young and no doubt the fact that he has
a little more energy, and with me having to run with
all of the equipment that I had I don’t think I
could have caught him.
Q. Let me ask you this, did you know what was
In the house at that time?
A. No, I had no Idea. The only thing that
I observed, I saw the garbage can under the window
and the window broken, which Indicated to me after
the subject came out the door that he had been Inside,
that something was wrong Inside, whether there were
people In the hours or what exactly had gone on Inside.
Q. Do you know whether or not he had an
accomplice?
I had no Idea because I assume that he
did because the lady said when she told us the dlreotlolns
that it was, "They were breaking Inside," which Indicated
there might have been more than one.
Q. Did that present a problem for you as far
as going over the chicken wire fence and going
Across the back yard In the same path where he had
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exited from the back door?
A. Well, it certainly did because, first of
all my partner didn’t exactly —(• I think he had
gotten to the corner of the house somewhat at the
last minute or so, but he didn’t exactly know what
was going on and I would have had to have watched
the subject that was on the fence, see ifmy partner
was there and then watch the side at the same time
to see If there was somebody else In the house who
might have had a weapon or whatever. Basically
somebody In the house who might come out later on,
so I think I had my hands full really.
Q. In other words, what you say, you would
have left your backside exposed to somebody coming
out of the house? /
A. Right.
Q. Or somebody In the house who might have
had a weapon to shoot out --
MR. DAYS: I move to strike the
recharacterization of the witness’s
answer.
THE COURT: I sustain the objection
to the recharacterization of a witness’s
response. Mr. Klein, as you know we can
only take the proof and evidence from the
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] witness, and counsel's recharacterizing
i 2 it is improper.
1 3 Q. (By Mr. Klein) All right. After you got
f1 4 to the subject, I think your partner got to the subject
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5 first, is that correct?
6 A. Right.
f 7 Q. All right. What did you observe about the
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i 9 A. Well, first of all where he was on the
j1 10 fence. He was hanging across the fence about, right
4
j 11 about in this general area hanging across the fence
j 12 with his arms and chest 'area hanging across the
1 13 fence and his feet hanging back on this side of the
1
j 14 fence.
{ 15 Q. All right. Let me go back onw to the time
1
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16 where you first saw him. Did you know positively
j 17 whether or not he was armed?
i
1 18 A, I really had no idea as to whether he
115 19 was armed or not. I could only see one of his hands.
I 20 and I wasn't really — I wasn't really concentrating
i 21 on it as such. I assumed he wasn't — I figured.
1
i 22 well, if he is armed I'm standing out in the light and
i 23 all of the light is on me, the I assume he would
i 24 have made some kind of attempt to defend himself.
' n 25 but I had no idea whatvas in the hand or what he
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might have had on his person.
Q. Then after he was taken -- who took him
the fence?
630
A.
Q.
A.
My partner and I.
And then what did you all do next?
We laid him down In the area and we saw —
we had seen where the wound was. We laid him down
and I think we took a handkerchief and tried to
stop the blood. He had blood spewing from his
head and we tried to exert direct pressure on
the wound to stop the blood from running and then
we called the ambulance,’ for an ambulance.
Q. How long did It take the ambulance to
arrive on the scene?
A, It took the ambulance something like
three minutes. If that long, they were very rapid.
Q. And what happened after that as far as
the subject was concerned? '
A. He was —
Q. Was he taken away?
A. He was taken to one of the hospitals.
I believe It was John Gaston Hospital.
Did you remain on the scene?
A. Yes, I did.
Q. All right. And what happened after that as
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far as you were concerned?
Well, after we, we had noticed really
before then, they took him, but during the time that
we took him down and laid him down and waiting on
ambulance we noticed there was a woman's billfold
there. After the ambulance took him off we left
that laying there. Before the ambulance took him
off we reconstructed the whole thing looking at
where the blood area was, looking at all of the
Johnson grass was blood, we made note to leave the
purse where it was, check the rear door of the
house and saw the footprints and glass broken out.
Q. You saw footprints, did you say?
A. We sav; a footprint on the door Just about
the area of the knob where it seems as if somebody
had attempted to kick the door in. The glass was
broken out of the door, the screen was off on this
side of the house.
Q. you say "this side", which side of
the house, east side or southeast side?
A . The screen was off and somebody attempted
to raise the window but with no success.
Q. All right. Did you go Inside the house?
A. I don't remember if we went inside then
or waited for crime scene. I think we might have
631.
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1 waited for crime sceen to come before we went Inside
the house.
Q.
A.
Did you go In after the crime scene?
We did.
Q. What Is the crime scene, what is their
function?
A. The crime scene Is a, usually one or two
police officers that come out and take pictures of
the scene, take fingerprints, whatever necessary.
In other words, they process the scene area, the
entire area, make measurements as to who was doing
what, where each Individual was standing at the
time as close as possible.
Q. And did they Interrogate you?
A. I believe they did, yes.
Q./ All right. Did anybody else come out,
any other Investigative group cone out?
A. Yes, the homicide bureau came. We called
for the crime scene. We called for an ambulance,
we called for a crime scene, homicide and a
lieutenant. And they all made the scene, homicide
made the scene, crime scene and the lieutenant.
)
Q. All right. And you gave, cooperated,
I take It, with them and gave statements?
A . Yes, sir, I did .
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Q* Was any action taken against you as a
result of this shooting?
Yes, I was relieved of duty with pay,
as Is customary, you know, in any type of action such
this, they relieve you of duty with pay pending the
Investigation. I think that was, to the best of
my knowledge, that was about Friday. I was relieved
of duty that Friday morning and I think I was back
to work that Monday.
All right. V/as any disciplinary action
taken against you as a result of this shooting?
A* Mo, It wasn't. ’ I had to go before the
Firearm Review Board. We have a Firearms Review
Board that revlev^s whenever an officer has to fire
his weapon. I had to go before the Firearms Review
Board and tell them basically the same thing that
had happened out on the scene, and no action was
taken. They found that I was Justified according
to policy.
Q* You know whether the matter was presented
to the Shelby County Grand Jury?
A. Yes, It was presented to the Grand Jury
on a charge of murder and no true bill was returned.
Q* All right. Do you know who testified
before the Shelby County Grand Jury?
633.
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2
A.
Q.
I
A.
Well, I testified for one.
You did?
As far as I can remember. Let me see _
yes, I testified and I believe one of the officers
In the homicide squad presented the case to them.
Q* Now, since that time have you had an
occasion to use your firearm In the line of duty?
MR. DAYS: Objection, Your Honor,
as Irrelevant and Immaterial.
THE COURT: What Is the
relevance and materiality, Mr. Klein,
In matters that’ occurred subsequent?
MR. KLEIN: Well, Your Honor,
to the extent that there may be any
contention that he Is prone to use
his weapon too quickly In any situation.
I Just wanted that, that Is the reason
that I ’m asking the question.
THE COURT: I'm going to sustain
the question, there being no such
contention apparent to the court at
this time.
(By Mr. Klein) Officer, do you know what
kind of clothing that the subject had on?
I don't exactly recall. I know he was
Q.
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1 fully clothed and I know he had on — I believe he
had on a Jacket other than his pants andshoes
and sweater, I believe he had on a Jacket.
MR. KLEIN: That’s all.
THE COURT: We will take a recess
before the cross examination.
MR. KLEIN: Your Honor, how long
do you propose to go this afternoon?
THE COURT: Approximately 5:00,
depending on what the circumstances
may be. How many more witnesses do
you contemplate?
MR. KLEIN: I have got about
four. Your Honor. Well, I would hate
to interrupt one, I would like to
V, off this afternoon and I will,
I guess I will Just have to wait and
see.
THE COURT: We will try to
accommodate you If we can do that.
(Recess . )
THE COURT: All right, sir, Mr.
Days.
635 .
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1 CROSS EXAMINATION
BY MR. DAYS:
Q. Mr. Hymon, could you point again to
exhibit 6 and indicate where you stopped when you
first got to the back of the house at the southwest
corner of 739 Vollentlne?
THE COURT: For the record, the
witness has been testifying in
respect to his direct examination to
the same Exhibit 6 that counsel has
Just referred to. All right.
MR. DAYS:' V/ould there be any
objection from counsel or the court
^^vlng him mark that particular point?
V/ould you mark that with this
pen and put your initial next to it.
THE COURT No objection.
Q. (By Mr. Days) All right. Did you put.
Just put your mark over there and that will be
A next to it.
A . Yes .
So that point is the same point that
you initialed, is that right?
A. Basically.
Q, , Basically the same position. All right.
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Now, when you reached that particular point were you
able to see anything about the back of the-yard or
to determine any thing about the back of the house?
A. In what respect.
The condition of the yard, the condition
of the back of the house?
I could see the yard, the yard area, you
know, it was directly in front of me, you know,
the area right in my immediate surrounding. I couldn’t
tell you what color the door was or anything of that
nature.
Q. Is that the point where you were when you
heard the screen door slam?
A. Basically. Basically.
Q* All right. Now, what, if anything, could
you see about the back portion of the house, that is
the condition of the back portion of the house?
A. Well, I could see the broken window that
was right there by me and the garbage can under the
window. As I said, I could see the screen door.
Standing from the position that you marked,
you could see a window that Is approximately
directly but east from where you were standing is
that right? It is the first window between you and
the east side of the house, is that correct?
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A. Not exactly, now, I wasn't standing along
the edge of the house. I was standing slightly
south.
Q. You were, so you were standing then In
a position different from the one that you Just
marked on the exhibit?
A. It was basically In the area here.
Q. Would you mark that, please, and perhaps
make an X Instead of a dot.
What I'm trying to determine, It this
dot or some otherpolnt other than —
A. I'm Just saylnfe It was close to the dot.
It wasn't In a direct line here. It was In an angle
here where I could see, but I could not tell you
niaybe w^ere the face of the door was.
Q. Would you be In a position to be able
to put an X on this exhibit that It Is perhaps
different from the point that Is, from the dot that
Is already there and Initialed?
Now, was there any light on In the house
when you got to that point, Mr. Hymon?
A. When I got to what point?
The point that you Just marked on the
exhibit.
A. I don't recall looking for a light. Roughly
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I r^
I d o n ’t r e c a l l l o o k i n g f o r a H .rhi- .
fa o r a l i g h t b u t r o u g h l y I
r e m e m b e r s e e i n g s o m e l i g h t s o n T t.
snz3 on. I remember there was
a l i g h t o n w h e n I s t o p p e d o u t s i d e t
u o u t s i d e . I r e m e m b e r s e e i n g
t h a t . I d o n ’t k n o w i f i t was
w a s t h e s a m e l i g h t , y o u
k n o w , t h a t w a s r e f l e f t * - ? n a - ♦->, .. j.
“ “ n g t h a t , t h e p a r t i c u l a r r o o m ,
1 1 t h a t l a w h a t y o u m e a n .
l o u d i d n o t i c e t h e r e w a s s o m e l i g h t
c o m i n g f r o m w i t h i n t h e h o u s e , l a t h a t r i g h t ?
I n o t i c e d t h a t b e f o r e I g o t t o t h a t p o i n t .
!outh J
O f t h e s o u t h w e s t « r n e r , w e r e y o u a b l e t o s e e
a n y l i g h t c o m i n g f r o m t h e b a c k o f t h e h o u s e ?
I r e a l l y d o n ' t r e m e m b e r s e e i n g a n y A s
X u n d e r s t a n d t h e r e w e r e s o m e l i g h t s o n , 1 a s s u m e
t h e r e m a y h a v e b e e n a r a y o r s o n r
y o r s o o f l i g h t c o m i n g , b u t
I d o n t r e c a l l s e e i n g a n y .
^ r e c a l l y o u c o r r e c t l y i n t h a t y o u
t e s t i f i e d t h a t t h e r e w a s a p o r t i o n b r o k e n o u t I n t h e
d o o r , s o m e g l a s s m i s s i n g f r o m t h e d o o r 1 „ t h e t e c k
^ h e h o u s e ?
^Ight.
« • S o t h a t t h e r e w e r e l i g h t o n I n s i d e , w o u l d
I t b e f a i r t o a s s u m e t h a t I t w o u l d r e f l e c t t h r o u g h
t h a t b r o k e n w i n d o w ?
w o u l d n ’t b e b e c a u s e w h e n w e d e t e r m i n e d
639.
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6̂ 10.
that the glass was broken we also determined that
there was a curtain at the door.
Q. I see. But you do recall some light
reflecting from that particular area?
A, I recall that after the incident is
over , yes
Now, I belive you testified on direct
that you really couldn't see what was behind or
beyond this chain link fence that was on Exhibit 6,
is that correct?
A. Right.
Q. You couldn't s-ee what was back here
behind this cyclone fence?
A. At what point?
Q. At the point where you were standing
south of the southwest corner of the house?
A. Before the shot?
Q • That's right.
A. No, I did not, I was not concentrating
°n that.
o.K. Well, if you didn't know what was
behind that particular fence, how was it that you
determined that if this individual got over the
fence he would most definitely escape your capture,
your apprehension?
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1 A. Well, for one thing It was dark.
Q. Well, Isn't it possible that there could
have been a ditch right on the other side of that
fence into which the person would have fallen and
you would have captured that person?
A. I would assume that that is possible.
Q. That is possible, isn't it?
Now, I believe you indicated that you
gave statements to various entitles of Memphis
Police Department with respect to the Incident which
you were Involved, is that right?
A. Yes .
Q. Is that correct?
A . Yes .
Q. Did you on any occasion give a report which
was signed by you after you gave the statement?
A. I think I did.
Q. Well, let me show you a document and
ask you —
MR. KLEIN: Let me see it.
Q. (By Mr. Days) Let me show you this
document and ask you whether you can identify it?
A. This seems to be a statement -- it seems
to be a statement that I might have — it was typed
and I initialed it.
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1
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S h 2 .
Q. Let me direct your attention to the last
page and let me ask you If the document Is signed?
A . Yes .
Q. I s t h a t y o u r s ig n a t u r e ?
A. It seems to be.
Q. Do you have any doubt that that Is your
signature? ■
A. Not particularly.
Q. All right. Now, I believe you testified
on direct that In addition to the chicken wire fence
^hat was In the back of the yard, that there were
other obstacles between 'you and the Individual,
Is that right?
A. Right.
And you mentioned something about a
clothesline being there?
A. Right.
Q. Now, this statement that was given to the
Memphis Police Department, was It not, was given
at what time In relationship to the time of the
shooting, do you recall?
A. I d o n ’ t have any I d e a , I d o n ’ t know w h e th e r
I t was g iv e n t h a t n i g h t .
Q. It was given shortly thereafter, wasn’t It?
A. I assume so.
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1 Do you have any doubts. If you want to
3ook at this document —
A. I was looking at, I don't recall exactly
when It was given.
• But It was shortly thereafter?
A. I would think so.
Q. Would you say that It was at a time when
circumstances of the shooting was fresh In your
memory?
A. I would probably say they were fresh
and fuzzy due to the excitement.
Q. All right. Probably a fair comment.
Let me direct your attention to page 2
Of this document a nd ask you whether there Is
anything In your statement that reflects the fact
that there was a clothesline In the back of the
yard?
A* ^̂ o. It i3 not.
Q. There Is no reference to It, Is there?
A. No, there Is not.
Q. All right. Now, after the Individual,
I assume we are talking about Edward Eugene Garner,
are we not?
A. Yes.
Q. Was shot by you, I believe you Indicated
643.
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that you stepped over the fence, that Is the chicken
wire fence and you went over to where the body was
located, is that right?
^ • ^ight.
Q. Do you have any estimation of howlong
it took you to move from where you were on the west
side of the chicken fence over to the east side and
to the cyclone fence?
No, I don't. I imagine it was rather
rapid because after the shot I really wasn't expecting
necessarily to hit him. Because of it, after my
%
partner told me he had been hit and bleeding badly
from the head, I might have got stunned and stood
there for just a minute, I don't know if I rushed
Immedlatley over there.
Once you started moving from the west
side of the house over to the east and to the
cyclone fence, how long do you think it took you?
A. Well, it didn't take me that long. I
almost got my neck hung on the clothesline wire. It
didn't take me very long. Just a matter of ducking
and moving around.
Q. All right. And I believe you testified
that at the time that you got to the back of the
house you didn't have any knowledge of v/hether there
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1 was one person or several persons In the house. Is
that right?
A. Well, from the Indication, what the lady
gave, I assumed that it was more than one because
she said, "they”, and "they" means plural.
Q. V7ell, what are you taught, Mr. Hymon,in
terms ofproper police procedure if you think there
is more than one person running from a house where
a burglary has been committed and one person runs
out to a houseand you, as an officer, are exposed
to the back of the house and don't know whether anothe
person is going to rush but of the house, or is it.
Is the procedure one of shooting at the first person
who is trying to go out of the ydrd or not shooting
at the first person or waiting until the second
person exits before taking any action? What generally
is the proper procedure, if you know?
A. Well, the procedure for me would be if I
thought there was more than one, to approach the
°ne who I did see in a way where I could also, so
if possible, see the openings of the house. In
other words, I approach him cautiously.
Q. In other words, you would, if I understand
you correctly, make certain that you would not be in
a position where you might be shot by someone running
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6H6,
out of the house who happened to be armed?
A. Or for him that, or him for that.matter.
Q. Or the person that was climbing over the
fence?
A. Right.
Q. Well, did you do that, did you feel that
under the circumstances that you were In a position
whereby you wouldn't open yourself up to this type
of possible Insury by a second person, coming out of
the house?
Ideally I say that Is what I would
do, but when you get In that moment of situation, I
recall perhaps not, you know. Jumping and running
over to him as I knew he wasn't armed because I
really didn't know. I recall being a little
cautious, I don't know If I Just lingered and stood a-
round waiting for somebody else to come out of the
house. I dorit recall doing that at all.
Q. I believe on direct you also testified
you really didn't know whether Garner was armed. Isn't
that right? Isn't that what you testified?
A. True.
Let me direct your attention again to a
document that I showed you earlier and ask you whether
In the course of this examination you were asked anythl:jig
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1 6117.
about Whether you saw anything in Garner's hand, and.
If so, does it Indicate what you answered?
Yes, it mentions that.
Does It Indicate whether you at that time
stated that you saw something In his hands or did not
see something In his hands?
Well, the statement asks did I observe
anything In his hand. And I say, no, I did not. No
I did not observe anything In his hand.
right. Do you recall being examined und(j
oath by me earlier this year, do you not?
^oughly, yes.
‘3* All right. Do you recall being asked the
following question s and being asked the following __
giving the following answers, starting at page 97.
̂ "Question. The chest area. Well, his
chest wasn’t toward you at this time, was It?
"Answer. No. I guess his back would have
been toward me at that time. It wasn't exactly
toward me; his whole body was at an angle."
Do you remember that?
Y e s .
Q* And the question, "His whole body was at
an angle" meaning exactly what? Could you see part
®f his fact at the time that he was climbing over?
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1 "Answer. Just the side."
Is that correct?
A.
Q.
Yes .
"Question. You could see the side of his
face?
"Answer. ^es."
Is that correct?
A.
Q.
chest?
Yes.
"Question. Could you see part of his
"Answer. No. His chest would have
been in front." Do you 1-ecall giving that answer?
A. Yes.
Q. "Question. Could you see his hands at
all times?
"Answer. I*m reasonably sure I could."
"Do you remember giving that answer?
A. When I gave that statement I don't know
if I said hand or hands. I remember something
about hand but I don't know if it was plural at
the time that I gave the statement.
Q. I did ask you something about whetherjou
®®uld see his hand or hands?
A. Right.
Q. And your answer was, "I'm reasonably sure
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1 I c o u l d ."
A.
Q.
Right.
You don’t really have any doubt, do you,
Mr. Hymon, that you could see Mr. Garner was unarmed
at the time that you fired that weapon?
A. I ’m sorry, was that a question?
Q. Do you have any doubt at this time?
I don’t have any doubt at this time because
I have been through that, and I know, you know,
once that we got over to him that we didn’t see
^J^ythlng, but the fact Is that Is that when I was
standing at that particular angle only one of his
hands, as far as I can remember, was In view by him
standing at an angle. It Is not likely that I
could see both of his hands on the same stand, that
Is why I, I say I don’t know If I said hand or hands
at the time. I merely responded because I could
see one of his hands and I stated that as far as
I could see he didn’t have anything In that hand.
Q. So that your testimony Is that you could
certainly see one hand but perhaps not see the
other. Is that right?
A. Right.
‘ MR. DAYS: Just one second.
THE COURT: Yes, sir.
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Q. Directlngyour attention to page 9 5 of
t h e d e p o s l U o n , d o y o u r e c a l l b e i n g a s k e d t h i s q u e s t i o n
a n d g i v i n g t h i s a n s w e r , M r . H y m o n .
" D i d y o u I n d i c a t e a n y t h i n g t o y o u r
P a r t n e r a b o u t w h e t h e r t h i s I n d i v i d u a l w a s a r m e d ? "
A n d g i v i n g t h i s a n s w e r :
" I d o n ' t r e c a l l u s d i s c u s s i n g t h a t , I ' m
s u r e t h a t t h e — e x c u s e m e . I ' m r e a s o n a b l y s u r e
t h a t t h e I n d i v i d u a l w a s n o t a r m e d , b e c a u s e h a d h e b e e n
a r m e d , I a s s u m e t h a t h e w o u l d h a v e a t t e m p t e d t o
s h o w t h a t b y f i r i n g a w e a p o n , o r I a s s u m e t h a t h e
w o u l d h a v e t h r o w n I t d o w n , o r I a s s u m e t h a t I w o u l d
h a v e s e e n I t . ”
D o y o u r e m e m b e r g i v i n g t h a t a n s w e r ?
A . I d o .
Q. D o y o u r e m e m b e r b e i n g a s k e d t h i s q u e s t i o n :
" W e l l , I f y o u h a d h a d a n y q u e s t i o n s a b o u t
w h e t h e r t h i s p e r s o n w a s a r m e d , w o u l d I t h a v e b e e n
y o u r r e s p o n s i b i l i t y t o n o t i f y y o u r p a r t n e r o f t h a t
f a c t ? "
A n d d o y o u r e c a l l t h i s a n s w e r ?
" D e f i n i t e l y ."
A . .. I do. . ,̂
Q. And do you recall this question on page
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1 "And what vrould have been the normal way
you would have gone about notifying your partner of
the fact?
Do yoy remember that question?
A. I do.
Q. And do you remember giving this answer?
"Well, I would have — the thing I would
have said, I guess, is that, "He has a weapon"
or "He has a gun" and I would have taken more cover
than what I had."
651.
A.
Do you remember giving that answer?
Ido.
Q. Now, after Garner was shot I believe you
indicated that you and your partner went over and
removed the body from the fence, is that correct?
A . Yes.'
And do you recall having any difficulty
in removing the body from the fence?
had minor difficulty because the wire
sticking up on the top of the fence and I think
generally probably some of his clothes got hung In
the wire.
MR. DAYS: I have no further
questions.
THE COURT: Anything further of
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652
this witness?
r e d i r e c t e x a m i n a t i o n
BY MR. KLEIN:
Q.
A.
Q.
A.
Can you identify this, please, sir?
It seems to be a picture of the back yard
Is that the backyard?
The backyard at the time of the shooting.
739 Vollentine I believe.
Q. Is that the way that it existed as you
recall it at that time?
A. As I recall it.
MR, KLEIN: All right. I*m going
to ask that be made an exhibit to his
testimony.
THE COURT: Without objection let
it be Introduced.
THE CLERK: Number 26.
MR. DAYS: No objection. Your Honor.
(Whereupon, the said photograph
referred to above was accordingly marked
Trial Exhibit 26 and received in evidence)
Q* (By Mr. Klein) What does that depict.
Officer Hymon?
A. It depicts a garbage can in the rear of
"̂ he house under the window, washing machine, tub
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on some board and stones, a ladder, a clothesline,
some clothes on the line, a house on the rear, the
side.
Were all of those Items or most of those
Items that you mentioned between you and where Mr.
“̂arner was and his position by the fence?
653.
A. Yes, sir, they were.
MR. KLEIN: That'sail.
THE COURT; Anything further?
MR. DAYS: Let me take a look at
the picture. If I may. Your Honor.
THE COURT:' All right. You may.
RECROSS EXAMINATION
BY MR. DAYS:
Q. Directing your attention, Mr. Hymon, to
exhibit 26, there Is a metal pole that seems to be
sticking up here next to the clothesline. Do you
know what that Is?
A. It seems like It might be a rake.
Q. All right. Now, In relationship to the
point where Garner was shot, can you Indicate whether
there appears to be clothesline — clothes obscuring
the area where Garner was on the fence If you were
standing where you stated that you were standing?
A. No, there would not be any clothes obscuring
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It .
Q. All right. Can you tell from this
photograph whether the clothesline was as high
as the cyclone fence, higher or lower than the
cyclone fence? It Is hard to tell. Isn’t It?
A. It is because of the darkness In the area
MR. DAYS: I have no further
questions.
THE COURT. Yo'i >̂ ay step down,
sir.
(Witness excused.)
THE COURT: You may call your
next v;ltness.
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VELTON J. ROGERS,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. KLEIN:
Q.
A.
Q.
A.-
Q.
A.
Q.
A.
State your name, please.
^elton J. Rogers.
Where do you live, Mr. Rogers?
3464 Felton Road.
Is that in Memphis?
Memphis.
What is your occupation, please, sir?
Probation officer.
Q. VJlth whom are you associated as a probation
officer?
A, Memphis and Shelby County Juvenile Court.
Q. Are you here today in answer to a
subpoena of which I asked you to bring certain
records with you?
A. Yes, sir.
Q. All right, and do you have those records
'*̂ lth you, please, sir?
A. Yes, sir.
Q. All right. And who do those records pertain
to, Mr. Rogers.
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A. Edward Eugene Garner.
2
Q. Anybody else mentioned in any of your
3 records?
4 A. Well, there 1s, it is a social family file.
5
Q. All right. When you say social family,
6 does it pertain to one family?
7 A. Yes, sir.
8 Q • Which family would that be?
9 A. The Garner family.
10
Q. All right. In addition to Edward Eugene
n Garner, does the file cover any matters concerning
12 any other members of that family, and, if so, who
13 are they?
14 A. Yes, sir, it has Larry Garner in the file
15 and Curtis.
16 Q. What address is shown for all of the Garner
17 children?
18 A. 928 Tully.
19 Q. All right. With regard to — well, let me
20 ask you this. Are you personally familiar with the
21 Garner family?
22 A. ^es, sir, Eugene — Edward I am, but not
23 the other boys .
24 Q. All right. Had you handled any matters
25 involving Edward Eugene Garner?
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^ • Yes, sir.
right. What matter did you handle
personally Involving Edward Eugene Garner?
* I handled a matter concerning burglary
back In really November of *71, and violation of
°urfew that occurred In October »73 and a burglary
^hat occurred July '74.
*5. July of '74?
Yes, sir.
right. Tell us about the first
burglary, what brought, what are the facts surrounding
that or how did It come to your attention?
He was arrested as a result of he and
several other younger boys, he was twelve at the
time, going Into the Porter Leath Home at 850 North
Manassas. They placed a charge of burglary In the
third degree against him. Seems like they went throug
^ window and went Into the place. It wasn't an ̂
actual break-ln as such, but It was an Illegal entry.
̂ Did you handle that matter? :
Yes, sir.
657.
A.
Q. Who did you deal with In the family, do
you remember? 'I
A. Edward and his father, I'm pretty sure.
ahead. If you need to refer to something.
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A. He and his father.
Q* All right. What was the outcome, or
disposition of that matter?
A. He was placed on probation.
All right. Was he placed in the custody
of his parents?
A. Yes, sir.
Q* Any instructions given with regard to or
^ny terms of probation?
A. Well, I was — there should be. I can't
verify that because we have an auxiliary probation
service and we refer this' — this ends my dealing
with them once he’s placed on probation. I make
referral to the auxiliary service and they set the
instructions. We have the rules or form.
Q* VJhat did the rule generally cover, times
when curfews or limited activities anyway?
A. Yes, sir, they say a child shouldn't be,
we leave blank the time and the supervising probation
officer from the auxiliary services is the one who
sets the time and says that he shouldn't be out past
whatever time they put in the blank without being
with the parent or guardian or some responsible
person whom the parent approves.
Q- All right. What was the next, I think you
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1 mentioned curfew violation, is that correct?
A. Yes, sir.
What did that Involve?
A. Being out past midnight. It was a matter
for my understanding in talking to him where he had
permission to work at a close-by like sundry store
>̂̂ d while some incident occurred there on the street
and he went out to look at it and while the officers
were there they saw that he was quite young and
talked to him, and being out past midnight they
issued him -- well, I guess they arrested him.
Q. All right. What was the dlsposltlofi of that?
A. That was adjusted, non-Judlclal after
warning and counseling.
Q. All right. Was he again placed in the
custody of his parents?
A. Yes, sir, he was not at the time under
Supervision and we didn’t, because he had served
the first period of probation and we didn’t reactivate
his probation.
Q. And what is the next event that you have
recorded?
Burglary, second degree.
Burglary second degree?
A. Yes, sir,
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Q.
A.
Q.
Involve?
A.
What Is the date of that?
Of June 30, 197^.
June 30, 197^. All right. What does that
660.
That had to do with an Incident -- well,
the parent brought this to the attention of the
police officers. Seemingly he had gone Into a
close neighbors home and obtained some money In a
Jar, I think It was In a Jar, and the family found
out about It and called the police to rectify the
matter. They didn't arrest him. At that time they
Issued him a Juvenile summons and he was later
summoned Into the court.
Q. All right. And what was the disposition
of that?
A. He was given a suspended sentence,
commitment as we call It, and placed on probation.
Q. Well, what was the commitment. In other
words, how does the sentence read?
• When read the petition sustained committed
to the Tennessee Department of Corrections,
commitment suspended and placed on probation.
Q. All right. And what does that probation
mean.
Q. It means that he's to stay out of trouble
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1 and that he's to obey his parents, that he's to,
whatever time the probation officer that supervises
him In the home gives for him to be home, that he
Is to abide by that. Well, Just —
Q. Do you know what time was given pursuant
to this probation as to what —
A. I sure wouldn't. I sure don't.
Q. When you say the probation officer In the
home, now, what do you mean by that?
A. Well, see, we have auxiliary or volunteer
service and they are the ones who provide this
service. It is provisions In the home.
Q. They will provide or specify a time for
him to be In, Is that correct?
A. Yes, sir.
Q. All right. Is there any comment on there
with regard to anything said by the father?
A. Well, yes, sir, I noted a comment wherein
the complaint before we went to court, the last
complaint, we did talk about supervision, and at that
time I think the father was quite concerned that the
boy would get Into this trouble and I guess with
a stern type feeling and attitude he felt that
maybe commitment might have benefited the boy at
that time. However, the court — I recommended
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1 probation, and, of course, the court thought —
saw fit to give — may I see that?
A. Yes, sir.
MR. KLEIN: Excuse me Just one
minute. Your Honor.
THE COURT: Yes, sir.
MR. KLEIN: If I may approach
the witness.
THE COURT: Yes, sir.
(By Mr. Klein) Is this what you are
talking about, sir, and If It Is I will ask you to
read the recommendation. '
A. Yes, sir.
Read that. If you will.
A. ’’Recommendation: Probation supervision
Is recommended. However, the father leaves the
Impression that the boy needs to be committed."
That Is Just what I was talklngabout.
Q* That Is your comment. Is that correct?
A . Yes .
All right. With regard to the other, you
mentioned, I think, Larry Eugene Garner and Curtis
Garner, what did you handle them for?
A. I didn’t handle those now.
Q* All right. What does the record show?
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1 A. Oh, assault and battery against Larry
and truancy and reckless driving against Gurtls.
Q. Does this mean that these are all matters
that are handled by the Juvenile court?
A, Yes, sir, they were all handled, well,
administratively non-Judlclally.
Q. All right. In those Instances Is there
any contact made with the parent?
A. Yes, sir.
Q. And which parent was that contact made
with?
A. The record shows that the two contacts
were with Larry released to mother after counseling,
I*m not sure It doesn't exactly say In the case
of Curtis,
Q, All right. Is there any comment In
connection v;lth any of those matters where the
^ather made some comment with regard to the concern
about leaving them under the supervision of the
mother?
A. Yes, I — at one time In explaining In
my visiting and contact the reason for supervision
for Edward at that time. The father explained that
he was working at a 4:00 to 12:00 p.m. shift and at
that time they weren't getting as good supervision
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1 66h,
as they could have been had he been home and that
the mother was not able to provide the supervision
that they needed at the time.
MR. ,KLEIN: That’s all I have.
THE COURT; You may examine.
MR. DAYS: All right. Your
Honor.
CROSS EXAMINATION
BY MR. DAYS:
Q. Mr. Rogers, I believe you indicated that
at the time that Edward Eugene Garner was brought
to the attention of the juvenile authorities for
a curfew violation that he received a certain type
of counseling, is that right?
A. Yes, sir.
Q. Would you indicate briefly what the
nature of that counseling was?
A. Basically it la a warning, this was a little
^^fferent from the normal violation of curfew.
Informal circumstances you Just find a kid out, but
with the, after talking to him and with the parents
and finding that there was Justification for him
being there and that they had this set up where the
owner of this place would deliver him honr̂ and
seemingly he was under supervision, so we Just
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1 talked about it and made sure that It wouldn't happen
any more. And we left, you know, we didn’t feel that
punishment or any type of supervision probably was
necessary at that time.
Q. Did you have occasion to discuss with
^^ward the circumstances of the first charge?
The burglary at North Manassas?
A. Yes, sir,
Q. And do you recall what he Indicated or
^ased upon your discussion with Edward did you come
to anyiconclusion about the circumstances surrounding
this particular Incident?
A. Ye^ sir. Now, Inreferrlng back to the note
I made that Everett stated that he, Michael Eason
and Jeffery Beckton did break Into the Porter Death
Home, They were playing In the yard and decided to
go through a window. They ran when the police came.
They had been Into the building prior to on a prior
^ate, this was basically what they told me.
Q. And do you know what the age of the other
boys' were at the time, were they older or younger?
A. They were fairly close the same age. One
of them seemed to be younger because I can remember
making an adjustment In the case due to his age
or something, about ten years old or something.
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Q. The burglary charge In June of 197^,
you Indicated that you talked to Mr. Garner and
to Edward, and I believe you Indlcatd that Mr.
Garner urged you to have his son committed to an
Institution, is that right?
A. It wasn't necessarily urging. I think
it was Just a statement that of feeling, I think —
Q. But you, in fact, did not recommend that
he be committed, 1s that right?
A. That’s right, yes, sir.
Q. And can you state why you didn’t make that
recommendation?
A. Well, probation officers, we generally, I
guess, stretch the rule, I guess, in favor of the chllcjl
And we seemingly make recommendations sometimes even
for probation when the Judge doesn’t agree with us,
so we try to keep the child In the home If any way
possible.
Q. Do you think that in your own mind that
the decision that you reached was an appropriate one?
A. I thought so at that time. Well, I felt
this way, that if it didn’t work, well, you know,
we would Just have to do it later.
Q. I see. Well, did you get any impression
of Edward’s home life and the role the parent played
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1 in the home from your discussions with him and his
father? What would you say that the home life was
like? I know that you indicated that there was
some Question about the mother providing adeQuate
supervision, is that right, but what else do you know’
about the family or conclude about the family?
Well, I felt that the circumstances, the
father worked and being out of the home probably
at a necessary hour, because of the hour. The day
time hour the children are in school and when they
are home they would need that strong supervision
that the father could provide, and as indicated,
knowing that from the prior discussion that the mother
I
seemed that she didn't have that control that the kid
needed.
Did you know anything about whether Mrs.
Garner was a sickly person or not?
• Yes, sir, that was —— I didn’t get any
deep details from it, but I got that impression.
And can you indicate, if you recall, how
You got that impression?
A. Well, first I think I got —
MR. KLEIN; If it is being based
on something somebody said, if it is
something based on his knowledge I think
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' that Is all right.
time at least that the witness respond
on personal knowledge. You may inquire
into the other if appropriate.
A. I didn't have any personal knowledge, no
sir.
Q. Did you ever have an occasion to talk
to Mrs. Garner?
A. Yes, sir, I talked to her. She was present
at the last court hearing when we went to court.
Q. So she came to.'court with her son and
with her husband?
■A. No, sir, her husband didn't come at this
one. He came to the conference and she came to the
court hearing.
Q. I see. When was this hearing held?
A. August 26th.
Q* And do you know what time it was held?
A. It was the morning -- well, here — it
would have been at 10:00, 10:00 a.m.
MR. DAYS: Just one second. Your
Honor, I would like to look at the
document that the witness has.
THE COURT: I will ask at this
THE COURT Yes, sir.
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669 .
MR. DAYS: The document with
respect to the other members of the
family.
Mr, Days) Mr. Rogers, with respect
to the complaint against Larry Garner, does the
Record Indicate anything about whether a determination
of culpability was made or any determination whether
Larry was guilty of the charges?
A. No, sir. It wouldn't. It doesn’t Indicate
that. In the first complaint It was a Juvenile
summons which was Issued by the police officers. He
'̂ as not arrested, and I would assume that the officer
that handled the case, based on some admission on
the boy's part, adjusted non-Judlclally feeling that
It was not necessary for It to be presented to the
court.
Q. Does the record reflect whether the parents
°f Larry Garner were Involved In any meetings with
Juvenile authorities about those Incidents?
A.
Q.
Meetings?
That ’ 3 right.
Yes, sir. It reflects that the parents
were present with the child at the time of the
conference.
MR. DAYS: All right. Thank you
80^)
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very much. No further questions.
THE COURT: Anything further?
MR. KLEIN: Just let me see your
report again real quickly, please, sir.
REDIRECT EXAMINATION
BY MR. KLEIN:
Q* Sir, in thelast matter that you handled,
which was, I think you said August the 26th of 197̂ 1,
as far as Edward Eugene Garner is concerned, he
was placed on probation?
Yes, sir.
^ow long does tliat probation last?
That would have been a year of supervised
probation.
Does that mean on October 3, 1974?
A. On probation.
MR. KLEIN: Thank you, sir.
MR. DA;YS; No further questions.
EXAMINATION BY
THE COURT:
Q- Mr. Rogers, what, if anything, do you
recall about what is the, what is your impression
about the physical size and appearance of Edward
Eugene Garner now on the last occasion of the court
hearing in August of '74?
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1 A. Well, I would think that he was of normal
size for fifteen years old, not small and 'then not
overly large for his age. I thought he was probably
normal size, yeah.
THE COURT: O.K. Anything
further?
MR. KLEIN: Nothing further.
MR. DAYS: NO, Your .Honor.
THE COURT: Thank you.
(Witness excused.)
THE COURT; You may or may not
able to conclude the testimony
of the next witness.
MR. KLEIN: I will go ahead and
Your Honor, and go as long as
Your Honor wants me to.
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LESLIE BURTON WRIGHT,
o
2 having first been duly sworn, was examined and
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3 testified as follows:
1 4 DIRECT EXAMINATION
ii 5
BY MR. KLEIN:
\
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6 Q. State your name, please, sir.
ji 7 A. Leslie B. Wright.
i 8 Q. How do you spell your last name?
t
i 9 A. V/-r-l-g-h-t.
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10 Q. Where do you live, sir.
\I 11 A. 1221 Abernathy.
1
\ 12 Q. Is that in Memi3hls?
,i
! 13 A. Yes, sir.
14 Q. What is your occupation?
i 15 A. A policeman with the Memphis Police
1
i 16 Department.
17
Q. How long have you been with the Memphis
ii 18 Police Department?
i
19 A. Two years and ten months.
1«j 20
Q. All right, sir. Did you go through the
j 21 academy , the training academy for new officers?
•i 22 A. Yes, sir.
J1 ' • J 23
Q. Do you remember what session you went through
J\ 24 A. The 37th.
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Q. The 37th session?
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1 A. Y e s , s i r .
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Q. W e r e y o u w i t h t h e p o l i c e d e p a r t m e n t o n
j 3
O c t o b e r 3 , 1 9 7 ^ ?
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4 A. Y e s , s i r .
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Q. A l l r i g h t . A n d w e r e y o u o n d u t y t h a t
'! 6 d a y ?
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7 A. Y e s , s i r .
j 8 Q. A n d , i f s o , w h a t h o u r s w e r e y o u o n d u t y
9 t h a t d a y ?
1 10 A • I w a s w o r k i n g t h e 4 : 0 0 p . m . t o 1 2 : 0 0
i\
11 m i d n i g h t .
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1 12 Q. r i g h t , s i r . A n d d i d y o u h a v e a p a r t n e r ?
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13 A. Y e s , s i r .
11} 14 Q, A n d w h o w a s y o u r p a r t n e r ?
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15 A. E, R. H y m o n .
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16 Q • I s t h a t t h e g e n t l e m a n s e a t e d r i g h t h e r e
Ii 17 ( i n d i c a t i n g ) ?
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t 18 A. Y e s , s i r .
19 Q. A l l r i g h t , s i r . W e r e y o u a l l a s s i g n e d t o
: 20 a c e r t a i n p r e c i n c t a t t h a t t i m e ?
I 21 A . Y e s , s i r , w e w e r e .
22 Q. A l l r i g h t . V 7 h a t w a s t h a t ?
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A.
p r e c i n c t .
T h a t w a s t h e , t h e n c a l l e d t h e n o r t h
25 Q. A n d w h a t a b o u t w a r d s , a r e y o u d e s i g n a t e d
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certain wards?
A. We were assigned to a partIcular-ward that
night.
All right. What is a ward, is that a
geographical —
Yeah, Just an imaginary area with imaginaryA.
boundaries which you stay inside and answer calls
in that ward.
Q.
time?
And were you all in a patrol car at that
̂ if
A, Yes, sir.
Q. Now, what'ward were you in on that
evening?
^̂ e were assigned to the ward designated
128 .
Q. 128, all right. Do you recall getting a
call with regard to a breakln at 737 Vollentine
that evening?
A. Yes, sir, it was a prowler inside call.
Q. And who received the call?
A. I did.
Q. Is that the way that it came over to you?
A. Yes, sir, it was put out by the dispatcher
as a provjler inside.
Q. What did that Indicate to you?
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1 A. It Indicated there was somebody who had
broken into a house at that location.
Q* Do they, always designate the prowler or
do they ever say burglary or does It vary how It
comes out over the wire?
Sometimes It Is burglary In process, that
1s the only other designation that I have heard
of that.
Q. Did you make any distinction, Is there
any distinction as far as you are concerned as a
prowler Inside or burglary In progress?
A. No, sir, to me a prowler Inside means
they have broken-Into a place where they are not
supposed to be and that Is a burglary offense.
Q. Approximately what time did you receive
this call?
I can’t be sure of exactly the time. It
was about ten minutes before the hour of 11:00 at
night.
Q. All right, sir. Not too long before you
were due to get off, go off duty?
A. Yes, sir. It would have been about an hour
before we got off.
Q. Where were you when you received the
call?
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1 A. We were at the fire station. I ’m not
sure which number it is. On Chelsea Just east of
North Watkins.
Q. All right. And were you in the car or
was your partner in the car when you received it?
A. No, sir, he was in the firestation.
Q. All right. And did you tell him that you
^ad received such a call?
A. Yes, sir. I did.
Q. All right. What did you all do then?
A. I was driving. We proceeded west on
Chelsea. And since this 'call was out of our area
and we weren’t familiar with the location, Vollentlne
runs east and west south of Chelsea, so we went
left, south on Watkins and hit Vollentlne and ran
Vollentlne all the way to a dead end and it dead
ended in the hundred block that was different from
the 737 where we were going, so we had to go all the
to North Thomas and then go North on Thomas to
the other side, the North side of Chelsea to catch
Vollentlne again where it ran east and west north
of Chelsea. So we came in from the, from North
Thomas, went east on in that particular, in the
six and seven hundred blocks of Vollentlne there off
Thomas, so we came eastbound on Vollentlne.
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Q. All right. Now, Is It accepted practice
for you to go outside of your ward?
A. Well, that Is a pretty busy area of town
and when a car Is out of service In an area they
usually send the next closest available car to
answer calls In another ward, particularly If It
Is a more serious type call,and prowler Inside Is
a fairly serious type call.
Q. Does the call come out to anyone on the
network or comes directly to a particular car?
At that time on the radio system we were
using, all of the cars running In the north precinct
area would have heard the call, but we were the only
ones who would have acknoviledged It, and our call
letters were 128, so It comes specifically for us
to respond.
Q. Did you all acknowledge?
A . Yes .
Q. All right. Then you proceeded on, you
finally made It to Vollentlne?
A. Yes, sir.
Q. And where did you go then?
A. We stopped right In front of 737,
In front of the street and there was a female black
standing In front of that house, either on the
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1 por^h or on the ground. She was in her night —
housecoat or nightgown, it wasn't normal -street
wear, I remember, and she was pointing to the house
^ext door which we found later was 739 Vollentine,
and she was moving her mouth but both of us were
inside the car, and, of course, the engine was
running and couldn't hear anything. So my partner
opened the door and got out and went over to her
and she v/as still pointing and she wasn't saying
anything. Finally, I was leaning over in the street
like tĵ is trying to hear what she was saying through
the open door. She said, "Somebody is breaking in
there right now." And she is still pointing to
739. So my partner comes back to the car and gets
his flashlight and says, "Show us on the scene."
̂ hadn't advised the dispatcher on the radio that
we had arrived on the scene, which is the proper
procedure that you are supposed to do, let him
know that you have gotten to the scene. So he
gets his flashlight, he says, "Show us on the scene"
gets out of the car, actually Just leaned in
Ĵ̂ d picked it up and went down toward the south
°f 739 along the west side of that house, and I
got on the mike and turned. Just turned the car into
the curb to where it was almost, or almost in front
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6 7 9 .
o f 7 3 9 a n d a d v i s e d t h e d i s p a t c h e r o n c e t h a t w e
w e r e o n t h e s c e n e a n d a n o t h e r t r a n s m i s s i o n f r o m
s o m e o t h e r c a r , s o w e d i d n ’t a c k n o w l e d g e i t , s o I
a d v i s e d h i m a g a i n , " 1 2 8 a t t h e s c e n e . " A n d h e
a c k n o w l e d g e d i t , s o I J u s t o p e n e d t h e d o o r a n d
m y f l a s h l i g h t a n d I w e n t a r o u n d t h e n o r t h e a s t ,
t o t h e n o r t h e a s t c o r n e r o f t h e h o u s e , 7 3 9 - -
y e a h , i t i s n o r t h e a s t , a n d I w a s s h i n i n g m y f l a s h l i g h t
a n d l o o k i n g a l o n g t h e , i t w a s t h e f e n c e a l o n g t h e
l e f t s i d e o f i t , i t w a s a d r i v e w a y , a s I r e m e m b e r
i t w a s a l l c o n c r e t e a n d I w a s l o o k i n g a l o n g t h e
f e n c e t o s e e i f t h e r e w e ’r e a n y b r e a k s a n d d o w n t o
a n o u t b u i l d i n g t h e r e t h a t w a s a t t h e e n d o f t h e
f e n c e , I t h o u g h t i t w a s a g a r a g e a t f i r s t , b u t I
l a t e r f o u n d o u t i t w a s t o o s m a l l t o b e a g a r a g e .
A n d I h e a r d t h e s c r e e n d o o r s l a m , s o u n d e d l i k e a
s c r e e n , w o o d e n s c r e e n d o o r f r o m t h e b a c k o f t h e
h o u s e a n d I h e a r d m y p a r t n e r y e l l , " H a l t " a n d t h e n
t h e r e w a s a s h o r t p a u s e , a c o u p l e o f s e c o n d s ,
a n d 1 h e a r d o n e s h o t . A n d a t t h a t t i m e I r a n t o
t h e b a c k c o r n e r a n d t h e r e h a d n ’t b e e n a n y v e r b a l
c o m m u n i c a t i o n a f t e r t h e s h o t , I d i d n ' t k n o w w h e t h e r
s o m e o n e h a d f i r e d a t m y p a r t n e r o r h e h a d f i r e d
a t s o m e o n e e l s e . S o I c a m e a r o u n d t h e c o r n e r o f
t h e h o u s e s l o w l y s h i n i n g m y f l a s h l i g h t .
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2
Q. Which corner of the house are you talking
about?
Now, that Is the southeast, that Is the
back corner.
Q- All right. Let's look at this, if you
would, please, sir, and this has been marked Exhibit
6. It has already been Introduced into evidence.
And ask you if you will Just assume that this is
the house at 739 with the back yard, and what I'm
pointing to now has been referred to as a chain link
fence five and a half to six feet tall with the
direction, the front of the house faces north, the
'back of the house faces south, and if you would
point out which side of the house that you went
Ôvfn and where you were when you heard the shot?
A. Let's see. I pulled the car in here and
I got out of the door and I ran around, there is a
picket fence that is r\ot shown. I ran around it,
■come down to right here, when the, when I heard the
screen door slam and my partner yelled, "Halt'', and
as soon as I heard that and my partner yelled, "Halt",
I stopped momentarily and then I heard the shot and
then I ran around, there is a window air conditioning
unit that stuck out here, and I ran around it, come
down to this corner right here and came around this
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1 corner slowly shining ray flashlight In this direction.
Q. You say "this direction", you are talking
about which —
A. That Is going to be west, yeah, west over
In this direction to try and pick up my partner.
My partner had his flashlight out, too, and his
pistol drawn, and I had my pistol drawn, and he
pointed out with his flashlight and said that
"He’s on the fence.” And I swung my light along the
fence here until I come to the subject who was draped
over this chain link fence right here, right Just
the edge of this small outbuilding. He was draped
over, torso, arms and head draped over on the
south side of this chain link fence and legs draped
over the north side right In the bend of the body
Just where the hips Join the abdomen, and there was
a large volume of blood coming from the head of the
subject In a steady stream about three quarters of
inch in diameter. Really the most I had ever
seen. And I was standing about here, and I took
a couple of steps closer and I said, I said, I better
go get an ambulance. And I believe my partner said,
"Yeah, It looks like he’s hurt pretty bad.” He was
moving toward the subject, so I ran back around the
front of the house to the front of the car. We weren’t
681.
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1 carrying walkie-talkies at the time, and got to the
radio and advised them that the subject had been
shot and that we needed an ambulance and the other
cars that were needed on the scene. There is a
crime scene and homicide and a lieutenant be sent
there. .My partner was, my partner was taking the
subject down from the fence at that time, and I
started, and I started back from the car, and my
partner met me right In here and asked me If I
would call for all the cars, the cars again, and
he had blood on his uniform. And I had forgotten
crime scene. I hadn't asked for them, and he
run down the list of cars that had I called, and I
said no, I hadn't called the crime scene. So I
went back to the car and he went back toward the
back of the house, and I called for the crime scene
and I got out and went back there and he had the
subject roughly In here, as I can best remember,
lying on the ground face-up. And there was still
a large amount — he was still bleeding, but he
never moved or said anything or gave out with any
kind of cry or any Indication. At the time I
assumed that he was, that he had been killed by the
wound.
Q. All right, air —
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MR. DAYS: I would move to
strike the assumption on the part of
the witness.
THE COURT: I ’m going to overrule
the objection. You may proceed.
Q. (By Mr. Klein) All right, sir. Do you
know, or were you, have you ever ascertained whether
there was any blood over on the other side on the
south side?
A. Yes, sir, after crime scene and homicide
^ad arrived they asked me to go with another officer
around, there Is a corner house here, this house
where we got the Initial call was here.
Q. That Is what number?’
7 3 7 I s w h e r e w e h a d t h e o r i g i n a l c a l l t o .
I went all the way around and come through their lot
here. It Is a long thin lot and we came back here.
We were looking to see If anything was dropped on
that side of the fence, but there was a large --
It Is a — there were weeds and wild grass and there
was a large amount of blood over there on that side
where he, where It had Just fallen straight down from
I
the subject’s wound there on that side of the fence
and there was blood, of course, over here where he
was bleeding profusely when he was taken off and on
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1
68̂ 1.
the ground where he had been laid. So there was
a large amount, a large quantltly of blood on the
south side of the cyclone fence.
Q. All right. Then who all arrived onthe
scene, if you recall?
A. The fire department ambulance got there
first, as best I can recall, and then in the order,
I ’m not sure of, crime scene, homicide, another
squad car, that's all I can be certain of.
Q. All right. Did you remain on the scene
for any length of time?
Yes, sir, we stayed around, I was there
^nd both of us were there until the subject was
transported and the crime scene was taking pictures
all of the area and homicide, I had run back
around to this house here where I believe her name
was Daisy Statts, she lived at 737, she had been the
lady that had pointed to the house when we first
arrived. I ran back around there and found her and
^sked her to remain available for homicide detectives
and the lady -- there was another lady, I can’t
Remember her name, but she had witnessed something
and she had told Mrs. Statts to call the police
and she lived across the street. I ’m not sure what
her name was. Anyway, I told her to stand by to —
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1 I didn’t want themto get off without getting their
names or at least telling them to stay there In the
house. And my partner was taken Inside and shown
the Interior of the house, although I never went
Inside, but we were there for a good length of time. .
Q. All right. Did you see any broken glass
or any Indication that the house was broken Into?
A. Yes, sir, the back door was open. One
Of the panes of glass on the back door underneath
the window guard was broken. There was a screen
ori the east side of this house where I had come
3̂.s taken down, but there were window guards, there
were window guards, as I remember, on all of the
windows, and there was a garbage can right underneath
this south bedroom window here.
Q. South toward which side?
A, South toward the west side. And that
wlndov; had been broken up, and I think that was the
window that the entry had actually been gained Into
the house. That Is about all that I can recall.
Q. All right.
THE COURT: I ’m going to .Interrupt
you at this point, Mr. Klein. I ’m
sorry. Officer Wright, but we v;lll
ask you to return to complete your
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1
686,
testimony at 9:30 and we will stand
adjourned until 9:30 tomorrow morning.
(Whereupon, court adjourned until
9:30 a.m., August 5th, 1976.)
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1 LESLIE BURTON WRIGHT,
resumed the stand and testified further as follows:
DIRECT EXAMINATION
BY,MR. KLEIN;______
Q* Officer Wright, I think on yesterday you
were, among other things, describing the scene out
at 739 Vollentlne. Were you there when the
crime scene squad arrived?
A. Yes, sir,
Q* All right. Do you know whether or not
they took any photographs?
A. Yes, sir, they'were taking a lot of
pictures.
Q- You did, of course, view the backyard of
the house. Is that right?
A. Yes, sir.
Q* I'm going to hand you what has been
marked Exhibit 26 and ask If that depicts the
backyard as you saw It that evening?
A. Yes, sir, that Is taken from the west side
looking east across the backyard.
Q* And Just briefly what does that picture
shoWj any objects or —
A. Yes, sir. It shows a garbage can up
Against the house and what appears to be a metal
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1 washtub, an old model washing machine, clothesline
with support poles, rugs and other Items hanging from
the clothesline, small ladder up against the small
out building.
Q. Were there a lot of things In the backyard
there?
Yes, sir. It was extremely cluttered.
MR. BAILEY: We object to Mr.
Klein leading the witness by saying
were there a lot of things out inI
the backyard.
MR. KLEIN': I withdraw the
question.
THE COURT: All right, sir.
Q. (By Mr. Klein) Officer, what was the
lighting situation out there that evening?
A. Do you mean In the backyard?
Q. Yes, sir.
Backyard was extremely dark, very poor
lighting.
Do you know If there was any lighting
behind the fence, the chain link fence?
A. To the south?
Q. Right. Which would be to the south,
correct, to the south?
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1 A.
you went.
I don’t remember any.
^as darker back the further south that
MR. KLEIN; All right, sir, that’s
all I have. Your Honor.
THE COURT: All right, sir, you
may cross examine.
693.
CROSS EXAMINATION
BY MR. DAYS:
'3* Mr. Wright, you have in your hand a
photograph that has been.identified as 26 I believe,
and you described what it reflects and you say you
were there when the crime scene squad arrived?
A . Yes.
crime scene squad taking
pictures?
A. Yes, sir.
you know what, if any, assistance the
crime scene squad had in terms of additional
lighting to take these pictures?
As near as I can remember, they had
flash attachments on their cameras. I don't remember
kind of floodlights or anything.
Q* But there were flashlights?
A. Attachments, yes, sir.
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Q* For the cameras taking the pictures. Would
you Indicate again for the record and mark on
exhibit 6 where you were when you heard the shot?
A . Yes .
Would you take this pen and mark It on
exhibit 6 and put your Initials next to It?
A. Right here.
All right. So you were at the northeast
corner of the house?
A. Yes, sir.
And was It your testimony on direct that i
you heard your partner shout "Halt" at that point?
A. The first thing that I remember hearing
was the screen door slam and then my partner yelled
"Halt".
Q* And you were at that same position when
you heard your partner yell "Halt"?
A. Yes, sir.
I believe you Indicated In your direct
testimony that there was no verbal communication
between you and your partner until after the shot.
Is that correct?
Yes, sir, on my part.
Q» And I believe you testified that your
partner at some point Indicated that he's on the
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A. Yes, sir.
Q. Did that occur before or after the shot?
A. After the shot.
Q. Now, when you got to the back of the
house after the shot, were you able to see your
partner?
A. Yeq sir, after shining the flashlight.
Q. Did you see your partner after you got
back there move from his position to where the
^°dy was located?
A. I didn't see him move. He was standing
still as I remember when i came back to the yard
and he said he's on the fence and indicated with his
flashlight the direction, and as I was scanning
toward the fence and caught sight of the body and
moved toward the subject, my partner must have been
moving as I was doing that because I didn't actually
see him move, no.
you estimate how long it took your
partner to get from where he was to the location of
the body? Just try to give your best estimate?
A. Three or four seconds.
Q. All right. Did you have any Involvement
of taking the body off the fence?
A . No, sir.
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696
MR. DAYS: No further questions.
Your Honor.
COURT: Anything further of
this witness?
MR. KLEIN: No, sir, I have
nothing further.
THE COURT: You may step down,
sir.
(Witness excused.)
THE COURT: You may call your
next witness.
MR. KLEIN: Sgt. Wheeler.
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697 .
P. J. WHEELER,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. KLEIN:
Q.
A.
Q.
A.
Q.
A.
Q.
State your name, please, sir.
P. J. Wheeler.
And you are employed by whom, sir?
Memphis Police Department.
And what 1s your rank, please?
It is sergeant.
And how long have you been with the Memphis
Police Department?
A. Be 14 years this coming October.
Q, O.K. Are you assigned to any particular
department or division?
To the homicide division.
Q. And how long have you been assigned to
the homicide division?
A. A little over three years now.
Q. All right. Back on October 3> 1974, were
you assigned to the homicide division?
A . Yes, sir, I was.
Q. All right, sir. Are you familiar with
the incident that Involved a shooting out at 739
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Vollentlne on that day?
air, I am.
Q. What role did you play In that, please sir?
A. More or less as the coordinator of the case.
The case had been assigned to me to be written up
for disposition on It.
Q. Is It customary that a situation like
this be assigned to' the homicide squad?
A. Yes,sir, It Is.
Q. Why, because the homicide actually
occurred?
Yes, sir.
this a routine, when I say "routine”
Is It standard that you do this In every homicide
case?
Yes, sir. It 1s.
Q. Does It make any difference whether It
Involves the police officer?
A. No, sir. It Is all handled Just —
Q. Did you actually go to the scene that
evening?
A. Yes,sir, I did.
Q. All right. And did you have an occasion
to talk to the father of the deceased, Mr. Clinton
T. Garner?
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A. I did, sir.
Q. When did you talk to him?
A. It was later the following morning, I don’t
remember the exact tine. It would be possibly around
1:00 a.m., 1 :3 0, somewhere in that area.
What was the purpose of your going to
see him?
To make positive of the identification of
the victim.
' Where did you see him, sergeant?
A. At his home at 928 Tully.
Q. All right, sir. And you say you did have
a conversation with him?
A. Yes, sir, I had a brief conversation.
Q. What was that conversation?
. We were attempting to make positive
Identification of the victim. We had received a
scrap of paper from the victim’s clothing with the
name of Edward Garner on it, and we had checked our
files and also the Juvenile court files and had come
up with the name, I believe of Eugene Edward Garner
or Edward Eugene Garner at that address, and we had
gone to that location to have someone accompany us
to the morgue and act as a corpus witness for positive
identification.
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Q.
A.
Q.
Did you ask Mr. Garner to go with you?
I did, sir.
And what was his response?
700.
A. Mr. Garner refused to accompany us to the
morgue, stating that he would prefer thaf.hls other
son Curtis accompany us, Indicating to us that he
felt that there was no doubt that the person was
his son.
MR. BAILEY; Excuse me. Is
he saying what the witness said
or Is he trying to Interpret the
witness’s reaction?
THE COURT: I would suggest to
counsel that he ask the witness. In
view of the question, for clarification
as to whether the witness Is purporting
to recite what may have been stated
by Mr. Garner or whether he Is purporting
to give an Impression.
Q* (By Mr. Klein) Do you remember what he
said to you, sir?
A • No, sir, not exactly what he said. He
•J ust --
Q. Well, then to an effect do you know what
he said —
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MR. B/VILEY: What does to an
®^'fect -- I object, the witness, said
he doesn’t know what Mr. Garner said
and Mr. Klein I suppose Is asking
him for paraphrasing his version of
what the witness said by saying to
the effect, and I object to It.
THE COURT: We will treat the
objection this way, as to what the
witness’s Impression may have been,
the objection may be well taken. If
the witness 1^ recalling or trying
to recall to the best of his recollection
what was said, though It may or may not
be verbatim, he may be asked but If
^^1 that he has Is a general Impression,
I think the objection may be well taken
In that regard.
Q. All right. Do you have a recollection
of what In substance was said?
A* Only one thing. He did state that he
did not want to go — he did want his son to go and
that he had been expecting something of this nature
to happen. As far as his exact words I can’t
remember, but It .v;as to the effect that we have been
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expecting something like this to have happened.
HR. KLEIN: That's all I have.
THE COURT; You may cross examine.
CROSS EXAMINATION
BY MR. BAILEY;
Wheeler, you Investigated many homicide;
since this one, have you not?
Yes, sir. '
And I take It that your recollection actually
Is a bit fuzzy as to what Mr. Garner said. Isn't It?
iwas upset, Mr. Bailey, but, no, sir, I
d ' 'know to the effect that they had been expecting
something like this to happen. j
‘3. Well, he was In a state of shock when you ;
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told him —
Well, I don’t say shock, but he was visiblyA.
upset
Q.
A.
And he was crying?
Yes, sir, he was.
MR. BAILEY: I have no further
questions.
THE COURT: Anything further?
MR, KLEIN: Mo, sir.
THE COURT; You may step down.
(Witness excused.)
t I
703
1 SGT. C. A. RUSSELL,
2 having first been duly sworn, was examined- and
3 testified as follows:
4 DIRECT EXAMINATION
BY MR. KLEIN: :
5
6 Q. State your name, please, sir?
7 A . Sgt. C . A . Russell.
8 Q• And where do you live, sir?
9 A . In Shelby County, Memphis, Shelby County.
10 Q. All right. Your address?
11 A. 4261 Zalo, Z-a-l-o.
12 Q. And you are employed by whom?
13 A. Memphis Police Department.
14 Q. And your rank is?
15 A. Sergeant.
16 Q . ^^ght. How long have you been with the
17 Memphis Police Department?
18 A . ^7 years.
19 Q, 17 years?
20 A. Yes, sir.
21 Q. All right, sir. What Is your present
22 duty assignment?
23 A. Crime scene squad.
24 Q. All right. And how long have you been with
25 the crime scene squad?
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1 A. Eight years.
Q* Eight years. So you were with the crime
scene squad in October of 1974, is that right?
A. Yes, sir, I was.
Q. You have an occasion to go to Vollentine
Street on October the 4th of, October the 3rd of
1974?
A. Yes, sir, I did.
All right. And where did you go to
specifically on Vollentine?
739 V o l l e n t i n e .
Q* All right. And how is it that you happened
to go out there?
A. We r e c e iv e d a c a l l .
Q. All right. Is this customary or the
procedure in a situation such as this that you, that
^he crime scene does go to the scene?
A. Yes, sir, we make all shootings.
Q. Would it necessarily be homicide or all
shootings or what dictates whether you go or not
to the scene?
If a shot is fired and it doesn't strike
anybody, we still have to maek the scene.
Q* REgardless, but any shooting you do go
to the scene, is that correct.
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A. Right.
All right. What function do you serve
or what duties do you perforin when you get to the
scene?
A* We take photographs, fingerprints, draw
rough sketches and take measurements and pick up
any evidence and mark It for later use.
*5* And did you do this In this case?
A- Yes, sir, we did.
Tell us. If you would, step by step what
you did at the scene?
We got to the scene and we were advised
that there had been a shooting. Patrolman Hymon
had shot a burglar and that he had expired at the
John Gaston Hospital. ,
All right. Then what Is the next thing
that you do?
A« We start taking photographs.
■̂ 11 right. Now, what do you focus on any
particular part of the scene?
^es, sir.
What do you do as far as taking the
photographs?
A. We take photographs of everything Just as
It Is then.
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Q. All right, sir. Did you take photographs
of the back yard?
A. Yes, sir, we did.
Q. Did you take photographs of the Inside of
the house?
706.
A.
Q.
A.
Q.
Yes, sir, we did.
Did you take photographs of the fence?
Yes, sir, we did.
Vfhen I say ”fence" now was there a fence
In the back of the house?
. Yes, sir, there was?
Q. All right, sir. I ’m going to hand you
a group of photographs and ask you If you can Identify
them.
MR. BAILEY: Your Honor, we have no
objection. We.would stipulate to the
admission of these photographs with the
understanding, of course, that they —
that Sgt. Russell Is not making an
effort to testify to the arrangement
of the various objects on the photographs
prior to his getting on the scene and
he Just, I suppose, took photographs
of what he saw?
MR. KLEIN: Your Honor, again I
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1 assume h e ’s going to testify this Is
the way that It waswhen he arrived on
the scene and this Is what the picture
depicts the scene as he saw It.
THE COURT: If counsel for the
plaintiffs wish to ask any questions
or voir dire the witness prior to the
introduction of any of the photographs
you may do so.
MR. BAILEY: May I voir dire with
a couple of questions. Your Honor?
THE COURT) Yes, sir.
VOIR DIRE EXAMINATION
BY MR. BAILEY:
Q. Sgt. Russell, you didn’t place any of
these objects that are shown In the photographs,
did you?
N o , S i r , I d i d n ’t .
MR. BAILEY : We have no objection
to the admission of them.
THE COURT: All right, sir. Let
the Items be proceeded with.
Q* (By Mr. Klein) Sgt. I ’m going to hand
you these and ask you If you can Identify them.
You don’t have to tell me what Is In each one of
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1 them. Just look and tell me If you can identify
all of those.
MR. BAILEY: We agreed to it —
Yes, sir, those are the photographs
that I took.
Q. You took those photographs?
A. Yes, sir, I did.
MR. KLEIN: Your Honor, I'm going
to move the Introduction of these
photographs.
THE COURT: Let them be Introduced
as a collective exhibit.
THE CLERK: Number 27.
(Whereupon, the said photographs
referred to above were accordingly
marked Trial Exhibits 27-A through
27-R, and received In evidence.)
Q. (By Mr. Klein) Sergeant, I'm going to
hand you one of these particular photographs and ask
you If you can tell mo what that depicts, sir?
MR. DAYS: Your Honor, If It
please the court, have those been
submarked, also?
THE COURT: I think that is appropriate
that they be marked 27-A, B, C, D and
708 .
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Q.
A.
Q.
A.
so forth so that a particular photograph,
the record will reflect It and for
purposes of examination or cross examlnatior
will reflect which particular scene or
photograph is Involved.
(By Mr. Klein) Is that already marked?
Yes, sir, it is.
L et’s identify that by i t ’s number.
Exhibit 27-A.
Tell me what that is, please, sir.
This is the coin purse dropped by the
709 .
Q.
A.
burglar —
MR. BAILEY: Your Honor, I ’m
going to object to that.
THE COURT; I will sustain the
objection.
(By Mr. Klein) All right. Again, you
weren’t there at the time of the shooting?
A. I was not.
Q. So all you know is what you saw when you
got there?
A. It was a coin purse.
Q. O.K. I would ask you not to speculate
or make any conjecture about how it got there. Just
tell me what it depicts, if you would, sir?
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A.
Q.
A coin purae, air.
where was that picture taken, was
It the front, back, side or what part of the house?
A. It was at the back of a fence where he
was shot.
Now, let me ask you to do this, I'm going
^o ask you to refer to what has been marked Exhibit
6, this Is a previous exhibit. It has been Introduced
Into evidence In this case, and this Is a scale
model of the house at 739 Vollentlne.
A. Yes, sir.
Q* And Just for ydur orientation this would
be the front of the house?
A. Right.
Q* And this direction would be north, the
^ack of the house south and this side, of course,
east and thlg side west? And this Is what has been
referred to as a chain link fence of approximately
and a half to six feet. This Is what has
been referred to as a chicken wire fence of approximate
three, three and a half feet.
A. Yes, sir.
And this building has been referred to as
an out building.
Q . Yes.
710.
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A. It Is a concrete block with a two by six
on top of It.
A concrete block. Where does it sit or
where would you position it on the scale model?
71'2.
A.
Q.
say?
A.
Q.
A.
Q.
A.
sleeve
Right about there.
How far from the chain link fence would you
About, not over a foot.
Not over a foot from the chain link fence?
Yes, sir.
Now, what is 27-B, sir?
That is some blood shown on Patrolman Hymon's
MR. BAILEY: We object to this
witness drawing a conclusion about how
the blood got on his sleeve unless he
observed it, and if he observed it
he should state I saw how he got the
blood on the sleeve.
THE COURT; Again, the objection
is appropriate that the witness will
testify as to what he saw and observed
and located and photographed unless
he personally had some personal knowledge,
not based on surmise.
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Q. All right. Now, If you could take your
pointer and show me where that picture was taken?
A. It was approximately right In that area
right there.
Q. All right. Now, can youdescrlbe on the
scale model and give the directions?
A. Where the coin purse was?
Q. Yes. How far from the back of the chain
link fence was It?
A. It was approximately four foot.
Q. All right. And how far would It have been
from the southwest corner of the outbuilding?
A. About two foot.
Q. All right. And you say that was a
coin purse?
Yes, sir, it was.
Did you examine the purse?
Yes, sir, we d i d .
VJas there anything Inside of the purse?
Yes, sir. It had Identification from that
house that was broken Into.
Q. Did it have any money or anything?
A.
Q. All right. Let me ask you what else
is depicted in that picture right next to the fence?
711.
A.
Q.
A.
Q.
A.
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Q, (By Mr. Klein) You understand that, don’t
you, just what does that depict?
Blood on patrolman Hymon's sleeve.
All right. Let’s look at 27-C and what
does that show?
That shows a squad car where It was parked
when we got there, both doors were open.
Do you know whose squad car that was?
A. 128.
Q. Now, what does 27-D depict?
A. It Just shows a view of the squad car where
It was parked when we got there In front of the
house.
Q. All right. And 27-E.
It shows a picket fence and the front of
the house at 739 Vollentlne.
Q. 27-P.
A. This shows the east side of the house with
the outbuilding down through there.
'3* All right. 27-Q?
A. This again shows a coin purse and the'
concrete block with a two by six on top of It and
the clothesline.'
Q. All right. Is that the same concrete
block and the 2 x 6 that you referred to In a previous
/3^ o •' I■ ̂ --------- •. 8 a U
713.
71^.
1 exhibit?
2 A. Yes, it is.
3 Q. In any of these did you see any blood on
4 the ground or on any of the objects?
5 A. ^es, sir, that 2 x 6 had spots of blood
6 on It and they were more on the ground close by.
7 Q. All right, sir. Did you check the other
8 side of the fence, the south side of the fence?
9 A. No, sir, I did not.
10 Q • All right. 27-H, what does that depict?
11 A • This shows the house as we found it when
12 we got there, ramsacked.^
13 Q. Do you remember which room thatwas?
14 A. No, sir, I do not.
15 Q. All right. That was taken inside the
16 house?
17 A. Yes, sir, it was.
18 Q. All right. 27-1, what does that depict?
19 A. This shows a bedroom, but I do not remember
20 which bedroom, and it shows the shape the house was
21 in when we got there.
22 Q. 27-J.
23 A. This shows the window that was broken out
24 and the curtains that were hanging, they were down.
25 Q. Do you remember which window that was?
i o
715.
1 A. Yes, sir, it was on the southwest, I
2 mean on the west side of the house along about here.
3 Q. All right, sir. 27-K.
4 A. That shows a footprint in the middle of
5 the bed where whoever broke the window out climbed
6 In.
7 Q. You don’t know that?
8 A • No.
9 Q. All it shows —
10 A. Is the footprint.
11 Q. 27-L.
12 A. This shows the bedroom where the raatress
13 was turned back and the condition of the house when
14 we got there.
15 Q. right. That is obviously a bedroom?
16 A. Yes, that is a bedroom.
17 Q. 27-M.
18 A. "̂ hls shows a chest of drawers that had
19 ^een pulled out and dumped in the floor.
20 Q. All right. What room would that have
21 been?
22 A. I'm not sure. I believe it was a bedroom
23 but I ’m not sure.
24 Q. All right. 27-N.
25 A • This was where Iwas told the shooting took
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1 place.
Q. All right. Who was depicted In the picture?
Patrolman Hyraon,
In other words, was he positioned at
that place and you took a picture of him at that
spot?
Yes, sir.
Q. All right. 27-0.
A. This shows the coin purse and the concrete
block and the 2 x 6 with blood on It.
All right, sir. There Is something else
that runs, looks like It Is white that Is running
diagonally across the photographs, do you know what
that was?
No, sir, I do not.
And again that photograph In 27-0 Is,
where would that be on the —
A. It would be right about right there.
Q. 27-P.
This shows the blood or what appeared to
blood on the ground.
All right, sir. Is there someone holding
an object?
A. Yes, someone holding a light on It.
Q. All right. 27-Q.
716.
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A. This shows the coin purse and what appears
to be blood stains back to the right of It about three
foot and also the concrete block and the 2 x 6 with
blood on It.
Q* According to that picture, the 2 x 6 which
Is sitting on the concrete block, where Is It In
relation to the outbuilding?
A. It Is behind It.
All right. Point that out.
It would be right back up behind It with
the end of It sticking out on this concrete block.
Q. And again, how 'close would you say It
was to this chain link fence?
It was approximately maybe a foot. A foot
and a half, maybe two foot.
Q. And 27-R?
A. This shows the concrete block with the
2 x 6 on top of it and blood spots on top 'Of It.
MR. KLEIN: Would the court like
to see —
THE COURT: Yes, sir.
You may proceed.
Q* (By Mr. Klein) All right, sir. I ’m going
to hand you what has been previously marked exhibit
26 and ask you If you can Identify that, please, sir?
717.
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1 A. Yes, sir this Is the back porch of
739 Vollentlne.
MR. DAYS: Excuse me, what number
Is that?
MR. KLEIN: 26, that which has
been previously Introduced.
A. (Continuing) And also a garbage can and a
broken window, sitting under a broken window.
Q. That Is the backyard as you saw It when
you arrived?
A. Yes, sir. It is.
•%
I'm going to hand you three more that have
not been marked yet and ask you If you can Identify
those. Please, sir.
A. This Is the back door of 739 Vollentlne,
this Is a screen.
MR. KLEIN: Excuse me. Your Honor,
I ’m sorry that I did this piecemeal,
and I will Just make them part of the
collective Exhibit 27.
THE COURT: All right. Do counsel
wish to be heard with respect to the
Introduction of those Items?
MR. DAYS: We would like to take a
look at them.
i'43 "
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MR. KLEIN: I Just handed them,
you can take a look at them again if
you would like to.
MR. DAYS: We have no objection.
Honor.
THE COURT: All right, sir. Let
them be marked 27-S, T and —
THE CLERK ; And U.
THE COURT: All right, sir.
(Whereupon, the said photographs
referred to above were accordingly
marked Trial Exhibit 27-S, 27-T and
27-U and received in evidence.)
Q. (By Mr. Klein) I'm going to hand you what
has been marked 27-S and ask you to tell me what
^Hat is, please?
That is the rear door to 739 Vollentlne..
right. Is there anything out of the
ordinary or unusual about it?
had the glass broken out, but nobody
could have reached in i t .
All right. I hand you 27-T and ask you if
you can identify that, please, sir?
A. Yes, sir, this is a screen that was off
of the west side -- east side of the house over here
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on this side of the house.
A.
Q.
Is that the way It was when you arrived?
Yes, sir, it is.
^nd 27-U, I will ask you what that is,
please, sir?
A. That is a garbage can under a window with
window guards on it and.the next window up was
broken out and a hoe laying there by It.
MR. KLEIN: All right, sir.
Your Honor —
THE COURT; Yes, sir-
MR. KLEIN: That's all I have.
Your Honor.
THE COURT:
examine.
Cros s e x a m i n a t i o n
BY MR. DAYS;______
Q. Mr. Russell, could you Indicate what type
of photographic equipment you used for the purpose of
taking the exhibits that have been Introduced Into
evidence?
A . 3 5 m i l l i m e t e r .
Q. And did you have any Illumination
equipment?
A. Yes, sir, flash power pack.
You may cross
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1 Q* Could you describe essentially what a
power pack Is?
Is what makes the camera flash and you
turn It on and off on the side.
Q* Does It sit on top of the camera?
A. No, sir. It does not. It hangs on your
shoulder.
And how much power does the power pack
contain In terms of voltage or energy or things along
those lines?
̂ don’t know, sir.
Q* Mr. Russell, directing your attention to
Exhibit 27-S, what again does that show?
"̂ hat Is the, that shows the rear door of
729 Vollentlne and It Is cracked open.
It Is cracked open?
-es, the door Is open with a crack In It
and It has got the glass broke out of It.
Q. And now, was that door cracked open when
you arrived?
A. Yes, sir. It was.
Q. And did you take that picture before you
went Into the house?
A. Yes, sir, I did.
Q. Were you the first person to go Into the hous
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i 7 2 2 .1 1 A. That I know of, yes.
n 2 Q. And you didn't position the door In any
3 way?
i 4 A. No, sir, I did not.
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6 crack was In the door?
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ij 7 A. It is approximately two or three Inches.
!j 8 Q. Two or three Inches?
ij 9 A. Yes, sir.
i\i 10 Q. So the door was open two or three Inches
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i 12 A. Yes, sir.
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13 Q. Do you have any knowledge of whether anyone
1 14 else on the scene touched that door?
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15 A • No, sir, I do not.
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16 Q. 27-B —
1.11 17 MR. DAYS; Just one moment.
»]t 18 Your Honor.
19 THE COURT: Yes, sir.
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20 Q. (By Mr. Days) Let me direct your attention
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i1 21 to Exhibit 27-B and ask you whether you can Identify
i 22 that?
ii 23 A. Yes, Sj[j.̂ J took the picture.
iJ 24 Q . And what Is It a picture of again?
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25 A. It is a picture with patrolman Hymon with
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■— -------- ---- . . . . . ---------- ---------- ̂ . . . ------- - . . - -l-J- __ , . ________ _ - . . . . . . _ . , . .
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1 some blood on his sleeve.
2 Q. And can you indicate why that picture
3 was taken?
4 A. No, sir, e x c e p t that I was told to take
5 it.
6 Q. Who told you to take it?
7 A. I don’t remember, but the highest ranking
8 officer is always in charge.
9 Q. Do you remember my examining you under
10 oath earlier this year?
11 A. Yes, sir.
12 Q. Do you remember being asked the following
13 questions and giving the following answers?
14 Page 1 4 .
15 ’’Question. All right. Let me show you
16 Exhibit 8 and ask you what it is designed to show.
17 ’’Answer. Blood on a shirt where he pulled
18 him back and got blood on it.
19 You remember being asked that question and
20 giving the answer that you Just read?
21 A. Yes, sir, I do.
22 Q. Was the purpose of showing that on the
23 officer, and that is Just in case he didn’t die and
24 accused him of beating him or something, do you
25 remember giving me that answer?
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A. Yes, sir, 1 do.
Q. Do you remember being asked on page 15
of the deposition:
"Question. Well, what would the blood
on Hymen's shirt demonstrate and why would it rebut
a claim of brutality Involved or some typo of
claim occurred?
"Answer, I don't know, sir.'"
"Do you remember giving that answer?
A. Yes, sir, I do.
Q. "Question. Who told you to take that
picture, if you recall? ’
"Answer. It seems like it was Captain
Smith,"
Do you remember giving that answer?
A. Yes,sir,
MR. DAYS: No further question.
THE COURT: Anything further?
MR. KLEIN; No, sir, that is
all I have.
EXAMINATION BY THE COURT:
Q. Sgt. Russell, do you recall being at the
scene that night yourself Independently?
/ A . Yes, sir, I d o .
Q. What was the visibility in the backyard
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725 .
without the use of photographic equipment or
otherwise?
It was extremely dark.
Did you examine or not examine the area
to the south of the chain link fence Inthe back?
A. No, sir, I did not.
THE COURT: All right, sir. Any
other questions?
MR. DAYS: Could I have just a
minute. Your Honor?
THE COURT: Yes, sir.
MR. DAYS:^ No further questions.
THE COURT: All right. You may
step down, sir.
(Witness excused.)
MR. KLEIN: Your Honor, at this
time I would like to read into the
record the burglary statute of the
state of Tennessee. The purpose for
doing this is that there are three
different burglary statutes that
distinguish between burglary In the
first degree, second degree and third
degree, and Î would like to read It or
at least make reference to the code
750 ■ 852
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1 section, I don't necessarily have
to read the whole section in.
THE COURT: All right, sir. Unless
there is objection you may proceed.
MR. BAILEY: He may proceed.
MR. KLEIN: I have photocopies
of it and if there is no objection I
will ask that it be Introduced.
MR. BAILEY: No objection.
THE COURT: Let it be Introduced.
THE CLERK: Exhibit number 28.
(Whereupon, the said item referred
to above was accordingly marked Trial
Exhibit 28, and received in evidence.)
MR. KLEIN: Your Honor, that concludes
our proof. I would like to make this
"tatement for the record that I had
under subpoena Daisy Bell Statts and
Louvennla Anderson, she is the lady who
lived in the house that was burglarized
and Statts is the lady referred to
previously. I did excuse both of them,
advised counsel for the plaintiff that
I was doing so in the event that they
were calling them as their witnesses.
726 .
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T h e y w e r e u n d e r s u b p o e n a a n d w e r e n o t
u s e d b e c a u s e I t h o u g h t i t w o u l d - b e
s u p e r f l u o u s . I a l s o h a d u n d e r s u b p o e n a
S g t . P o w e l l a n d C a p t a i n S m i t h . I ' m
n o t g o i n g t o c a l l t h e m , I d o n ' t d e e m
i t n e c e s s a r y .
I w o u l d l i k e f o r t h e r e c o r d t o
n o t e t h a t t h e i r d i s c o v e r y d e p o s i t i o n s
v r e r e t a k e n b y t h e p l a i n t i f f i n t h i s
c a u s e .
T H E C O U R T : I s t h e r e a n y f u r t h e r
p r o o f o r e v i d e n c e t o b e a d d u c e d ?
M R . B A I L E Y : Y o u r H o n o r , w e h a v e
a f u n e r a l b i l l i n t h e a m o u n t o f $ 9 1 3 . 9 5
a n d a c e m e t e r y b i l l i n t h e a m o u n t o f
$ 1 6 5 .
M R . K L E I N : Y o u r H o n o r , I h a v e
t o o b j e c t t o t h a t c o m i n g i n a t t h i s
p a r t i c u l a r t i m e . I d o n ' t t h i n k t h a t
i s r e b u t t a l , I t h i n k t h a t i s p r o o f i n
c h i e f a n d f u r t h e r m o r e I t h i n k t h e r e
h a s t o b e e s t a b l i s h e d t h e r e a s o n a b l e n e s s
o f t h e s e b i l l s , s o f o r t h e r e c o r d I
d o h a v e t o m a k e t h e o b j e c t i o n .
THE COURT: V J e l l , l e t t h e i t e m s
727.
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be marked with the next exhibit number
as a composite exhibit, noting the objection
of the defendant.
THE CLERK ; 29-A and B, air.
(Whereupon, the said bills referred
to above were accordingly marked Trial
Exhibit 29-A and 29-B and received In
evidence.)
THE COURT: Any further proof to
be adduced by either.party?
MR. DAYS: None for the plaintiffs.
Your Honor.
MR. KLEIN: None for the defendant.
THE COURT: Gentlemen, do you wish
to be heard at this time in argument?
MR. DAYS: We do not. Your Honor.
MR. KLEIN: Your Honor, may I
Inquire of the court If the court Is at
liberty, does It Intend to rule at this
time or ask us to submit anything further.
If It Is proper?
THE COURT: Normally, Mr. Klein,
the court would expect to ask the parties
to submit a proposed statement of fact
and conclusions to be submitted. Normally,
728 .
753 855
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1 also, I try to point out the particular
area or areas that the court has some
particular concern with In a non-jury
case. I wouldn't say In a case of this
type, because I don't know that there
Is any case of this type, but the court
Is expecting to ask that each of you
submit a proposition of fact and
conclusion to be drawn with respect
to the proposition of fact. You have
both submitted pretrial memoranda of
points and authorities setting forth
your position with regard to statement
of facts and statements of the law.
Again, the matters that have been
submitted, 1 would afford you a twenty
day period of time. If you wish, to
augment or resubmit what has been set
forth, either In the form of taking the
position that It Is supported by the
proof and evidence.
Now, In Indicating twenty days,
gentlemen, that may or may not preclude
access to a transcript here. That Is
my normal procedure. The court has
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tried to take fairly detailed notes
of the evidence as It has been adduced.
I am primarily concerned In this
particular case with the facet of
the case which Is unusual to the court,
and that Is the weaponry, the ammunition
aspect of the case. I think the facts
have been fully developed by proof and
evidence and counsel on either side,
but there may be particular matters
or particular Information in respect
of discovery proof and evidence that
would augment or be supplementary to
the proof and evidence that was adduced
In the case. And by that, I'm also
referring to Interrogatory proof and
evidence that was adduced. So I would
expect you to submit within the 20 day
period propositions of fact and
conclusions with your being advised
that the court has a particular concern
In the area with the regard to the
matters pertaining to the use of
ammunition Involved. How that pertains,
for example, to the defendants that are
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before the court. How that pertains to
the city of Memphis, how that pertains
to the defendant Memphis Police Department,
how that pertains to the defendant E. R.
Hymon in that particular aspect of the
Case.
As I stated earlier in the course
of this proceeding, the court was not
aware of any particular case authority
that deals with that area of the law.
And I would expect that you would submit
If you feel that there Is any additional
authority In addition to what has been
submitted on statements of law and
propositions by the parties on each
side, so I*m not asking either side to
start from scratch In presenting what
you wish to present unless you wish to
do that, because what has been
submitted Is of help to the court. I
do feel that the background and the
work that has been done In presenting
the memoranda up to this time or the
essential work and effort that Is
Involved except as may be augmented by
731.
855
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732 .
what counsel believe are the Important
aspects from your viewpoints of .
advocacy with regard to the particular
development of facts here and conclusions
that should be drawn from these facts
on the evidence In this case.
MR. DAYS: Your Honor, would It
be possible to get an exact date for
submission?
THE COURT: Yes, sir. It certainly
will. I would ask that you transmit,
let us say, by'the 26th, that will give
you three weeks.
MR. KLEIN: Again this would be
for facts and proposition of facts
and evidence?
THE COURT: Based on all the
proof and evidence.
MR. KLEIN: And Your Honor Indicated
that you had some concemabout the
ammunition question. That, of course,
would be Included In our propoition.
THE COURT: Yes, sir. I*m making
that statement because I feel that
each of you have certainly adequately
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1 presented the matters pertaining to
the law on the factual aspect, which
is unfortunately a more common aspect
■i
that this court and other courts have
had to deal with, but this particular
area is an area that I'm inviting
your attention to for assistance to
the court.
MR. KLEIN: Your Honor, there
is one other item that I would like
to refer to and I would ask that it
be Included in the part of my motion
for a directed verdict. There is an
allegation in the complaint, and it is
set out on page 7 of the complaint that
refers, well, it says that the wounding
and killing of the deceased Garner by
defendant Hymon occurred because the
deceased was blaok.
That is to say that lethal force
Would not have been resorted to under
the circumstances had the deceased been
white. In that regard the ceased was
deprived of equal protection of the
laws irrespective of the race as guaranteed
733 .
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734.
b y t h e f o u r t h a m e n d m e n t o f t h e U n i t e d
S t a t e s C o n s t i t u t i o n a n d 1 4 U n i t e d
S t a t e s C o d e 1 9 8 1 . A n d I r e s p e c t f u l l y
s u b m i t t h e r e l a a b s o l u t e l y n o t h i n g
I n t h i s r e c o r d t o I n d i c a t e a n y t h i n g
o f r a c e o r r a c i a l o v e r t o n e s , a n y t h i n g
r e l a t e d t o t h a t .
THE COURT: Do the plaintiffs wish
to be heard?
MR. DAYS: We have no objection
to the court taking action, and I
suggested It tb counsel for the
defendant.
THE COURT: The court will
consider the issue as presented In
number 22 Is not before the court on
the record.
I s t h e r e a n y o t h e r m a t t e r s ,
g e n t l e m e n , t h a t y o u w i s h t o d i s c u s s
b e f o r e I h e a r f r o m y o u t h e n b y t h e
26t h ?
MR. DAYS: No, Your Honor.
MR. KLEIN: Of course, we still
stand on the motion that we made.
THE COURT: I understand that
SGI
J a m e s J . F y f e , S h o t s F i r e d : A n E x a m i n a t i o n o f N e w Y o r k C i t y P o l i c e
P o l i c e F i r e a r m s D i s c h a r g e s . ( P h . D . d i s s e r t a t i o n , S . U . N . Y . , A l b a n y ) A n n
A r b o r , M i c h i g a n : I l n i v e r s i t y M i c r o f i l m s , I n t e r n a t i o n a l , ( 1 9 7 8 ) .
T h i s s t u d y e x a m i n e s e x t r e m e p o l i c e - c i t i z e n v i o l e n c e , f o c u s i n g
p r i m a r i l y o n p o l i c e f i r e a r m s d i s c h a r g e s . I t s m a j o r d a t a s o u r c e s i n c l u d e
N e w Y( r k C i t y P o l i c e D e p a r t m e n t r e c o r d s o f a l l i n c i d e n t s i n w h i c h m em
b e r s o f t h a t a g e n c y r e p o r t e d d i s c h a r g i n g t h e i r f i r e a r m s a n d / o r w e r e
s u b j e c t s o f " s e r i o u s " a s s a u l t s ( e . g . , a s s a u l t s w i t h d e a d l y w e a p o n s ;
a s s a u l t s w h i c h r e s u l t e d i n s e r i o u s o f f i c e r i n j u r y o r d e a t h ) d u r i n g t h e
p e r i o d J a n u a r y 1 , 1 9 7 1 - D e c e m b e r 3 1 , 1 9 7 5 . N u m e r i c a l l y , t h e s e d a t a i n
c l u d e 3 5 7 3 s u c h i n c i d e n t s i n v o l v i n g 4 9 0 4 o f f i c e r s ; 2 9 2 6 o f t h e s e i n c i d e n t s
i n v o l v e p o l i c e s h o o t i n g ; 3 8 2 7 o f f i c e r s r e p o r t e d f i r i n g t h e i r w e a p o n s .
T h e s e r e p o r t s , s u p p l e m e n t e d b y v a r i o u s N e w Y o r k C i t y P o l i c e p e r s o n
n e l r e c o r d s , w e r e c o n v e r t e d t o c o m p u t e r m o d e a n d s u b j e c t e d t o a n a l y s e s
d i r e c t e d a t t h r e e m a j o r o b j e c t i v e s :
1 . D e s c r i b i n g t h e P h e n o m e n o n : s e v e r a l h y p o t h e s e s c o n c e r n i n g t h e
c i r c u m s t a n c e s a n d p a r t i c i p a n t s i n p o l i c e s h o o t i n g s a n d o t h e r e x t r e m e
v i o l e n c e w e r e f o r m u l a t e d a n d t e s t e d . I n a d d i t i o n , t h e s t u d y s o u g h t
( s u c c e s s f u l l y ) t o d e r i v e , e m p i r i c a l s h o o t i n g i n c i d e n t , o f f i c e r a n d o p p o n e n t
t y p o l o g i e s . F i n a l l y , t h e s t u d y p r e s e n t s t h e m a r g i n a l f r e q u e n c i e s o f
ABSTRACT
7 s.'!
-2-
s e v e r a l v a r i a b l e s r e l a t e d t o s h o o t i n g i n c i d e n t s a n d o f f i c e r s h o o t e r s .
2 . A n a l y z i n g t h e E f f e c t s o f D i r e c t O r g a n i z a t i o n a l I n t e r v e n t i o n s
u p o n P o l i c e S h o o t i n g D i s c r e t i o n : i n m i d - 1 9 7 2 , t h e N e w Y o r k C i t y P o l i c e
D e p a r t m e n t p r o m u l g a t e d a d m i n i s t r a t i v e s h o o t i n g g u i d e l i n e s f a r n a r r o w e r
t h a n t h e f o r m e r l y o p e r a t i v e s t a t u t o r y l i m i t a t i o n s . A c c o m p a n y i n g t h e s e
g u i d e l i n e s w e r e p r o v i s i o n s f o r i n t e r n a l a d m i n i s t r a t i v e r e v i e w a n d
a d j u d i c a t i o n o f t h e a c t i o n s o f p o l i c e s h o o t e r s . S e v e r a l h y p o t h e s e s
r e l e v a n t t o t h e e f f e c t s o f t h e s e i n t e r v e n t i o n s u p o n t h e f r e q u e n c y a n d
n a t u r e o f p o l i c e s h o o t i n g s w e r e f o r m u l a t e d a n d t e s t e d .
3 . A n a l y z i n g t h e E f f e c t s o f I n d i r e c t l y R e l a t e d O r g a n i z a t i o n a l
I n t e r v e n t i o n s u p o n P o l i c e S h o o t i n g : s e v e r a l h y p o t h e s e s c o n c e r n i n g t h e
e f f e c t s o f c h a n g e s i n s u c h o r g a n i z a t i o n a l v a r i a b l e s a s d e p l o y m e n t a n d
e n f o r c e m e n t p o l i c i e s , f o r m a l r e w a r d s y s t e m s a n d o f f i c e r " l a y o f f s ” u p o n
t h e f r e q u e n c y a n d n a t u r e o f p o l i c e s h o o t i n g s w e r e f o r m u l a t e d a n d t e s t e d .
A m o n g t h e m o s t s i g n i f i c a n t f i n d i n g s o f t h e r e s e a r c h a r e t h e
f o l l o w i n g :
1 . N e w Y o r k C i t y p o l i c e s h o o t i n g s a r e p r e d o m i n a n t l y a n i n n e r c i t y ,
n i g h t - t i m e p h e n o m e n o n , w h o s e g e o g r a p h i c d i s t r i b u t i o n i s c l o s e l y a s s o
c i a t e d w i t h t h o s e o f r a t e s o f r e p o r t e d c r i m i n a l h o m i c i d e a n d r a t e s o f
a r r e s t f o r f e l o n i e s a g a i n s t t h e p e r s o n ( m u r d e r / n o n - n e g l i g e n t m a n s l a u g h t e r ;
f e l o n i o u s a s s a u l t ; f o r c i b l e r a p e ; r o b b e r y ) .
2 . B l a c k s a n d H i s p a n i c s a r e d i s p r o p o r t i o n a t e l y r e p r e s e n t e d a m o n g
p o l i c e s h o o t i n g o p p o n e n t s . T h e s e d i s p r o p o r t i o n s a r e c l o s e l y a s s o c i a t e d
- 3 -
w i t h m i n o r i t y d i s p o r p o r t i o n a m o n g p e r p e t r a t o r s a n d v i c t i m s o f c r i m i n a l
h o m i c i d e a n d a m o n g t h o s e a r r e s t e d f o r f e l o n i e s a g a i n s t t h e p e r s o n .
3 . N e w Y o r k C i t y p o l i c e s h o o t i n g o p p o n e n t a g e d i s t r i b u t i o n s a p p a r
e n t l y d o n o t v a r y a m o n g t h e r a c e s , b u t a r e c l o s e l y a s s o c i a t e d w i t h r a t e s
o f a r r e s t f o r f e l o n i e s a g a i n s t t h e p e r s o n .
4 . B l a c k a n d H i s p a n i c N e w Y o r k C i t y p o l i c e o f f i c e r s a r e f a r m o r e
l i k e l y t o h a v e f i r e d t h e i r g u n s o n d u t y t h a n a r e W h i t e s ; t h i s v a r i a t i o n
i s a s s o c i a t e d w i t h d i s p r o p o r t i o n a t e m i n o r i t y o f f i c e r a s s i g n m e n t t o t h e
m o s t h a z a r d o u s d u t i e s a n d a r e a s .
5 . B l a c k a n d H i s p a n i c N e w Y o r k C i t y p o l i c e o f f i c e r s a r e f a r m o r e
l i k e l y t o h a v e f i r e d t h e i r g u n s o f f d u t y t h a n a r e W h i t e s ; t h i s v a r i a t i o n
i s a p p a r e n t l y a s s o c i a t e d w i t h t h e d i s p r o p o r t i o n a t e p r e s e n c e o f o f f - d u t y
m i n o r i t y o f f i c e r s i n t h e c i t y ’ s m o s t h a z a r d o u s a r e a s .
6 . S u i c i d e i s t h e d a t a s e t ’ s m o d a l c a u s e o f o f f i c e r d e a t h .
7 . T h e N e w Y o r k C i t y P o l i c e D e p a r t m e n t ’ s m a j o r d i r e c t o r g a n i z a
t i o n a l i n t e r v e n t i o n u p o n p o l i c e s h o o t i n g d i s c r e t i o n w a s a c c o m p a n i e d b y
d e c r e a s e s i n t h e f r e q u e n c i e s o f r e p o r t e d p o l i c e s h o o t i n g s , s h o o t i n g
o p p o n e n t i n j u r i e s a n d d e a t h s a n d l i n e o f d u t y o f f i c e r i n j u r i e s a n d
d e a t h s .
8 . T h e N e w Y o r k C i t y P o l i c e D e p a r m e n t s ’ s m a j o r d i r e c t o r g a n i z a
t i o n a l i n t e r v e n t i o n u p o n p o l i c e s h o o t i n g d i s c r e t i o n w a s a c c o m p a n i e d b y
c h a n g e s i n t h e n a t u r e o f r e p o r t e d p o l i c e s h o o t i n g s .
9 . T h e N e w Y o r k C i t y P o l i c e D e p a r t m e n t ’ s m a j o r d i r e c t o r g a n i z a -
7 8 5
-4-
t i o n a l i n t e r v e n t i o n u p o n p o l i c e s h o o t i n g d i s c r e t i o n w a s a p p a r e n t l y
a c c o m p a n i e d b y c h a n g e s i n t h e r e p o r t i n g b e h a v i o r o f o f f i c e r s a n x i o u s
t o a v o i d d i s c i p l i n e f o r p r o s c r i b e d s h o o t i n g s .
1 0 . A c h a n g e i n N e w Y o r k C i t y P o l i c e n a r c o t i c s e n f o r c e m e n t p o l i c y
( f r o m " B u y a n d B u s t " t o a p r o g r a m o f p u r s u i n g " H i g h e r - U p s " ) w a s a c c o m
p a n i e d b y a d e c r e a s e i n t h e f r e q u e n c y o f i n c i d e n t s o f e x t r e m e v i o l e n c e
i n v o l v i n g n a r c o t i c s o f f i c e r s .
1 1 . T h e " l a y o f f s " o f t h e N e w Y o r k C i t y P o l i c e D e p a r t m e n t ' s 3 0 0 0
j u n i o r o f f i c e r s w e r e n o t f o l l o w e d b y a r e d u c t i o n o f o n - d u t y s h o o t i n g s ,
b u t w e r e a c c o m p a n i e d b y a d e c r e a s e i n t h e f r e q u e n c y o f o f f - d u t y s h o o t i n g s .
7s(;
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T h e d i s c o v e r y d e p o s i t i o n o f E D W A R D R . F E D R I C K , t a k e n
a t t h e C i t y A t t o r n e y ' s O f f i c e , l o c a t e d a t 1 2 5 M i d - A m e r i c a M a l l ,
o n N o v e m b e r 2 7 , 1 9 7 9 , a t M e m p h i s , S h e l b y C o u n t y , T e n n e s s e e ,
p u r s u a n t t o N o t i c e a n d i n a c c o r d a n c e w i t h t h e F e d e r a l R u l e s
o f C i v i l P r o c e d u r e .
A l l f o r m s a n d f o r m a l i t i e s a r e w a i v e d .
O b j e c t i o n s t o c o m p e t e n c y , r e l e v a n c y , a n d m a t e r i a l
i t y a r e r e s e r v e d , t o b e d i s p o s e d o f a t o r b e f o r e t h e h e a r i n g
o f t h e c a u s e .
O b j e c t i o n s t o t h e f o r m o f t h e q u e s t i o n s , a n d t o
l e a d i n g q u e s t i o n s a r e t o b e m a d e a t t h e t i m e o f t h e t a k i n g
o f t h e d e p o s i t i o n .
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A t t o r n e y - a t - L a w
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A t t o r n e y - A t - L a w
S u i t e 5 2 5
C o m r a e r c e T i t l e B u i l d i n g
M e m p h i s , T e n n e s s e e 3 8 1 0 3
F o r t h e D e f e n d a n t M R . A R T H U R S H E A
D e p u t y C i t y A t t o r n e y
A t t o r n e y - A t - L a w
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D I R E C T E X A M I N A T I O N B Y : M R . A R N O L D
C R O S S E X A M I N A T I O N B Y : M R . C A L D W E L L 5 2
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( N o v e m b a r 2 7 , 1 9 7 9 )
E D W A R D R . F E D R I C K ,
T h e w i t n e s s , b e i n g f i r s t d u l y s w o r n , d e p o s e d a s
f o l l o w s , t o - w i t :
D I R E C T E X A M I N A T I O N
B Y M R . A R N O L D :
Q. A l l r i g h t . I k n o w y o u j u s t t o l d u s y o u r n a m e , b u t
g i v e u s y o u r n a m e a n d y o u r o c c u p a t i o n , p l e a s e .
A. E d w a r d R . F e d r i c k , F - E - D - R - I - C - K . I ' m a p a t r o l m a n
w i t h t h e M e m p h i s P o l i c e D e p a r t m e n t , , s i r .
0. How old are you. Officer Fedrick?
A T h i r t y - f o u r , s i r .
Q. A n d , h o w l o n g h a v e y o u b e e n a n o f f i c e r w i t h t h e
M e m p h i s P o l i c e D e p a r t m e n t ?
A A l m o s t e l e v e n y e a r s .
Q. P r i o r t o t h a t , p r i o r t o c o m i n g o n t h e P o l i c e
D e p a r t m e n t , w h a t d i d y o u d o ?
A B a s i c a l l y , I w a s i n t h e A r m y . I d i d s e v e r a l
d i f f e r e n t t h i n g s b u t p r i m a r i l y I w a s i n t h e A r m y .
Ol H o w l o n g w e r e y o u i n t h e A r m y ?
A. T h r e e y e a r s .
0. W e r e y o u i n t h e U n i t e d S t a t e s i n y o u r t o u r o f d u t y
i n t h e A r m y ?
A I w a s i n t h e U n i t e d S t a t e s f o r a p o r t i o n o f i t , s i r ,
-4-
3
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7
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But, I was in the Reoublic of Vietnam for two tours,
0. W h e n w a s t h a t ?
A. T h a t w a s i n 1 9 6 6 a n d ' 6 7 a n d a g a i n i n ' 6 8 a n d e a r l y
' 6 9 .
0-
A.
0.
A n d , y o u w e r e i n c o m b a t t h e n , i n V i e t n a m ?
Y e s , s i r . I w a s i n t h e i n f a n t r y .
A n d , l e t ' s s e e , i f y o u w e r e — y o u w e r e a b o u t t w e n t '
w h e n y o u j o i n e d t h e A r m y ?
A O h , a b o u t , y e s , s i r .
Q. And, p r i o r t o t h a t , w h a t h a d y o u d o n e ?
A. W e l l , I w e n t t o M e m p h i s S t a t e f o r a y e a r a n d I
w o r k e d a t a b a k e r y a n d I w o r k e d a t a l o a d i n g d o c k o f a t r u c k
l i n e .
0.
A.
Q.
A.
0.
A.
Y o u g r a d u a t e d f r o m h i g h s c h o o l ?
Y e s , s i r , e v e n t u a l l y .
H e r e i n M e m p h i s ?
Y e s , s i r .
W h e r e w a s t h a t ?
T e c h H i g h , s i r .
Q. W h a t y e a r d i d y o u g r a d u a t e f r o m T e c h ?
A I t w a s ' 6 5 , s i r .
0. O k a y . Y o u w e n t t h r o u g h a r e g u l a r t r a i n i n g p r o g r a m
w i t h t h e M e m p h i s P o l i c e D e p a r t m e n t a t t h e T r a i n i n g A c a d e m y ,
d i d y o u ?
-5-
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A. Y e s , s i r .
Q. W h o d o y o u r a m e i r h a r t h a t : y o u h a d t r a i n i n g y o u t h e r e ?
A. S i r , C a p t a i n E a r l C l a r k w a s o v e r t h e A c a d e m y a s a
w h o l e , I b e l i e v e , a n d . L i e u t e n a n t J o h n C o l e t t a w a s i n c h a r g e
o f t h e F i r i n g R a n g e a n d . L i e u t e n a n t J a m e s B u l l a r d w a s i n
c h a r g e o f t h e P h y s i c a l T r a i n i n g .
M R . C A L D W E L L : B u l l a r d ?
A. Y e s , s i r . I b e l i e v e i t ' s B - U - L - L - A - R - D .
C, W T i a t o t h e r — I m e a n , h o w w a s t h i s d i v i d e d u p . Y o u
h a d F i r i n g R a n g e a n d P h y s i c a l T r a i n i n g . B i d y o u h a v e o t h e r
k i n d s o f t r a i n i n g , t o o ?
A. O h , v e s , s i r . W a h a d a g r e a t d e a l o f c l a s s r o o m , a n d ,
i f I r e m e m b e r c o r r e c t l y , I b e l i e v e i t w a s t w e l v e w e e k s . A n d ,
a s I r e c a l l , a b o u t : n i n e w e e k s o f i t c o n s i s t e d o f s i x h o u r s
a c a d e m i c a n d t w o h o u r s o f P h y s i c a l T r a i n i n g e a c h d a y . A n d ,
t h e n , a p o r t i o n o f t l i a t e n t h w e e k w a s w i t h t h e r a n g e p e o p l e
a n d t h e n t w o e n t i r e w e e k s w e r e a t t h e r a n g e .
0, A n d , t h a t w a s a t o t a l o f h o w m a n y w e e k s t r a i n i n g ?
A I t w a s t w e l v e v / e e k s , a s I r e m e m b e r i t , s i r .
0. A n d , s o , i t w o u l d h a v e b e e n 1 9 6 8 t h a t y o u w e n t
t h r o u g h —
A ( I n t e r p o s i n g ) ' 6 9 , s i r .
0. ' 6 9 t h a t y o u w e n t t h r o u g h t h e T r a i n i n g A c a d e m y .
N ov7, ' w h e r e a l l h a v e y o u b e a n s t a t i o n e d i n t h e P o l i c e
f
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1 D e p a r t m e n t , w h i c h p r e c i n c t s a n d w h a t h a v e y o u d o n e ? I f v o u
c a n b r i n g m e u p f r o m ' 6 9 t o t o d a y , i f y o u c a n r e m e m b e r ?
A. O k a y . I n i t i a l l y , o n g r a d u a t i n g f r o m t h e P o l i c e
A c a d e m v , t h e r e w e r e o n l y t w o d i v i s i o n s o f U n i f o r m P a t r o l a t
t h a t t i m e . E a s t a n d W e s t . A n d , I w a s p l a c e d i n t h e E a s t e r n
D i v i s i o n o n m y s h i f t . A n d , I w a s e x t r a , r o d e s o m e w h e r e
d i f f e r e n t e v e r y n i g h t w i t h s o m e o n e d i f f e r e n t , f i l l i n g i n .
A n d , a f t e r a w h i l e , W h i t e h a v e n c a m e i n t o t h e C i t v . I b e l i e v e
t h a t w a s J a n u a r y o f 1 9 7 0 . A n d , a t t h a t t i m e , t h e U n i f o r m
P a t r o l D i v i s i o n w e n t f r o m a n E a s t e r n a n d a W e s t e r n t o a n
E a s t e r n a n d a N o r t h e r n a n d a S o u t h e r n . W e d i d n ' t h a v e a
W e s t e r n a n y m o r e , a t t h a t t i m e . A t t h a t t i m e , I w e n t t o t h e
S o u t h e n d .
0. Y e s .
A. A n d , I r e m a i n e d i n t h e S o u t h e n d f r o m J a n u a r y o f
1 9 7 0 t o S e p t e m b e r , 1 9 7 5 . A n d , a t t h a t t i m e I w e n t t o t h e
N o r t h P r e c i n c t . A n d , t h e n , i n A p r i l o f ' 7 6 , w e w e n t f r o m
t h r e e p r e c i n c t s t o f o u r p r e c i n c t s . A n d , t h e W e s t P r e c i n c t
c a m e b a c k i n t o b e i n g a t t h a t t i m e . W e h a d a n E a s t , a S o u t h , a
W e s t , a n d a N o r t h . A n d , a t t h a t t i m e , i n A p r i l o f ' 7 6 , I
w e n t t o t h e W e s t P r e c i n c t . A n d , I r e m a i n e d t h e r e u n t i l A u g u s - t ^
o f ' 7 6 .
A n d , i n A u g u s t o f ' 7 6 , I w e n t t o t h e N o r t h P r e c i n c t
a n d I s t a y e d i n t h e N o r t h P r e c i n c t f r o m A u g u s t o f ' 7 6 u n t i l
O 1
-7-
1 J u n e o f t h i s y e a r a n d , i n J u n e o f t h i s y e a r , I w e n t t o t h e
2 T a c t i c a l U n i t a n d t h a t ' s w h e r e I a m n o w . T h a t ' s a s b e s t a s
3 I c a n r e m e m b e r , s i r .
4 Q. W h a t i s t h a t " T a c t i c a l U n i t ? "
5 S i r ?
6 0- I T h a t i s t h e T a c t i c a l U n i t ?
7 A . T a c t i c a l A p p r e h e n s i o n a n d C o n t a i n m e n t T e a m .
8 0. A n d t h i s f u n c t i o n s a n y w h e r e i t ' s n e e d e d r a t h e r t h a n
9 a n y o n e p r e c i n c t ?
10 A. Y e s , s i r . A n y w h e r e i n t h e C i t y . W e s e r v i c e
11 d i f f e r e n t C i t y o v / n e d h o l d - u p a l a r m s , p a t r o l h i g h c r i m e a r e a s
12 o r a r e a s t h a t a r e h a v i n g a n u p s u r g e i n c r i m e , t h i n g s o f t h i s
13 n a t u r e .
14 0. A n d , d o e s i t a l s o d o — i s i t l i k e s o e c i a l p r o b l e m s
IS o r s o m e t h i n g l i k e t h a t ?
16 A. Y e s , s i r . Y e s , s i r . H o s t a g e s , t h i n g s o f t h a t
17 n a t u r e .
18 & T h a t ' s h o w y o u w o u l d c l a s s i f y i t ?
19 A. Y e s , s i r . H o s t a g e s i t u a t i o n s , t h i n g s o f t h a t
20 n a t u r e .
21 0. D i d y o u h a v e e x t r a t r a i n i n g i n v o l v e d t o g e t i n t o
22 t h a t —
23 A. ( I n t e r p o s i n g ) Y e s , s i r . Y e s , s i r . T h r e e w e e k s .
24 Q. ( C o n t i n u i n g ) — t h a t t e a m ? T h i s l a w s u i t i s a b o u t
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1 a n i n c i d e n t y o u w e r e i n v o l v e d i n o n J a n u a r v 1 2 , 1 9 7 2 . I t
i n v o l v e d t h e d e a t h o f E d d v M a d i s o n . D o v o u r e m e m b e r t h a t ?
Y e s , s i r . I r e m e m b e r t h a t .
Q- I f y o u v ; o u l d , I g u e s s y o u r f i r s t i n v o l v e m e n t , o r
t h e w a y t h a t w o u l d s t a r t w o u l d b e w h a n y o u r e c e i v e d t h e c a l l
o v e r t h e r a d i o — o r t h e r e v ; a s a g e n e r a l c a l l o v e r t h e r a d i o
a b o u t a s t o l e n c a r , i s t h a c h o w t h a t s t a r t e d ?
A. Y e s , s i r . T h a t ' s r i g h t .
0- V 7 o u l d y o u s t a r t f r o m t h e r e a n d t e l l u s V 7 h a t h a p p e n e d
A. A l l r i g h t , s i r . W e w a r e w o r k i n g — I b e l i e v e , v ; e
w e r e , a t t h a t t i m e u n d e r t h e f o u r , t e n h o u r a d a y w e e k . W e
w o r k e d f r o m 4 : 0 0 i n t h e a f t e r n o o n t i l l 2 : 0 3 i n t h e m o r n i n g .
A n d , w e h a d a n o t h e r c a r i n t h e a r e a t h a t w a s w o r k i n g 3 : 0 0 a t
n i g h t t i l l 6 : 0 0 i n t h e m . o r n i n g . A n d , t h e c a l l w e n t o u t t h a t
d a y t h a t a c a r , s o - a n d - s o d e s c r i p t i o n , i t h a d b e e n s t o l e n
f r o m a r e s i d e n c e , a n d I d o n ' t r e c a l l t h e s t r e e t a t t h i s
t i m e .
A n d , t h e d i s p a t c h e r p l a c e d u s a n d t h e o t h e r c a r
t h a t w a s w o r k i n g i n o u r a r e a o n c a l l . A n d , t h e o t h e r c a r g o t
t o t h e s c e n e f i r s t , s t a r t e d t a k i n g t h e r e p o r t , p u t t i n g o u t
t h e b r o a d c a s t f o r m y p a r t n e r a n d I t o c r u i s e .
W e w e r e g o i n g s o u t h o n a l i t t l e s t r e e t c a l l e d " S h e l b j ;
t h a t r u n s n o r t h a n d s o u t h , b e t w e e n F l o r i d a a n d T h i r d , n o r t h * o f
M a l l o r y . W e w e r e g o i n g s o u t h b o u n d . W e o b s e r v e d a c a r o f t h a t
_82K
-9-
1 y e a r a n d c o l o r , a s b e s t w e c o u l d t e l l , c o m i n a v / e s t b o u n d o n
2 G a g e , I b e l i e v e i t i s . W e s t o p p e d a n d i t ' s a n o l d n e i a h b o r -
3 h o o d t h e r e , t r e e s , t h e r e ' s a l o t o f t a l l t r e e s , i t ' s d a r k , i t '
4 n o t l i g h t e d l i k e i t s h o u l d . W e t h o u g h t t h e c a r w a s t h e r i g h t
5 c o l o r . W e c o u l d t e l l t h e r e w e r e t w o p e o p l e i n i t . W e v / a i t e d
6 a n d t h e y p a s s e d i n f r o n t o f u s a n d w e p u l l e d i n b e h i n d t h e m
7 g o i n g w e s t b o u n d , w e s a w t h e l i c e n s e n u m b e r . S a w t h a t w a s t h e
8 c a r a t t h a t t i m e .
9 A n d , m v p a r t n e r s t a r t e d p u t t i n g o u t t h e b r o a d c a s t
10 o n t h e r a d i o . W e c o n t i n u e d o n d o w n t o F l o r i d a S t r e e t . T h e r e
11 w a s a n o t h e r c a r t h a t w a s a h e a d o f t h e s t o l e n c a r . T h e y g o t
12 t o t h e s t o p s i g n a t F l o r i d a , t h e f i r s t c a r d i d , a n d s t o p p e d .
13 T h e s t o l e n c a r — t h e s t o l e n c a r p u l l e d i n b e h i n d a n d s t o p p e d .
14 W e p u l l e d i n b e h i n d t h e s t o l e n c a r , h a d t h e s t o l e n c a r b o x e d
15 b e t w e e n u s a n d t h e c a r i n t h e f r o n t . I w a s t h e p a s s e n g e r .
16 I g o t o u t o n t h e r i g h t s i d e w i t h t h e s a u a d c a r s h o t g u n .
17 I r a n u p o n t h e r i g h t s i d e o f t h e s t o l e n c a r a n d I
18 t a p p e d t h e w i n d o w ( i n d i c a t i n g ) w i t h t h e b a r r e l o f t h e s h o t g u n .
19 I s a i d , " Y o u ' r e u n d e r a r r e s t , g e t o u t w i t h y o u r h a n d s u p . "
20 A t t h a t t i m e , t h e d r i v e r t h r e w t h e d o o r o p e n a n d I s a i d ,
21 " D o n ' t d o i t . " A n d , h e r o l l e d o u t r u n n i n g a n d I s a i d , " S t o p , "
22 a n d h o l l e r e d . A n d , h e w a s r u n n i n a f o r — v ; e w e r e b a c k f r o m
23 t h e c o r n e r a n d h e w a s r u n n i n g f r o m t h e c o m e r — f o r t h e
24 c o m e r o f t h e b u i l d i n g a t t h e s o u t h e a s t c o r n e r o f t h e
8 ‘V)
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1 i n t e r s e c t i o n . W s w e r e b a c k f r o m t h e i n t e r s e c t i o n a s h o r t
w a y s a n d h e w a s r u n n i n g f o r t h a t c o m e r t h e r e . A n d , I f i r e d
u p o v e r h i s h e a d i n t o t h e s i d e o f t h e b u i l d i n g . A n d , h e
c o n t i n u e d t o r u n a n d I f i r e d a c a i n a t h i m . A s h e w e n t a r o u n d
t h e c o r n e r I f i r e d a g a i n , b u t h e w a s a o n e .
A t t h a t t i m e , t h e o u v s t i l l i n t h e c a r — t h e o t h e r
g u v w h o w a s i n t h e f r o n t s e a t , h e t o o k t h e w h e e l a n d t o o k
t h e c a r o u t f r o m u n d e r m e . I f i r e d a t i t t w i c e . H e w e n t
a c r o s s t h e s t r e e t , j u m p e d t h e c u r b a n d h i t a — a f i r e o l u g a n d
s t o p p e d . I r a n — I t h o u g h t t h e f i r s t g u y h a d g o t t e n a v r a y .
I r a n o v e r a f t e r t h e c a r a n d a p p r e h e n d e d t h e g u y i n t h e f r o n t
s e a t .
A n d , a t t h a t t i m e , I l o o k e d b a c k — m y p a r t n e r h a d ,
I b e l i e v e , w e n t a r o u n d t h e c o r n e r a n d w a s c o m i n a b a c k , a o t
\
t h e s q u a d c a r a n d p u l l e d i t f u r t h e r s o u t h o n F l o r i d a . A n d , I
t o o k t h e g u y I g o t o u t o f t h e f r o n t s e a t d o w n t h e r e . T h a t ' s
w h e n I s a w t h e f i r s t g u y w a s d o w n o n t h e s i d e w a l k .
M y p a r t n e r c a l l e d f o r a n a m b u l a n c e a n d a L i e u t e n a n t
T h e L i u e t e n a n t m e t u s t h e r e , a c o u p l e o f m o r e s q u a d c a r s a n d
t h e D e t e c t i v e s c a m e .
0. T h e — w h e n y o u f i r s t p u l l e d u p t o t h a t s t o p s i g n
t h e r e o n G a a e a t F l o r i d a —
A.
Q.
( I n t e r p o s i n g ) Y e s , s i r ?
( C o n t i n u i n g ) — y o u m e n t i o n e d t h e r e w a s a n o t h e r c a r
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i n f r o n t . I b e l i e v e t h e s e f i l e s r e f l e c t i t w a s a v e l l o w
P i n t o ?
A. I d o n ' t r e c a l l . I t v / a s a l i g h t c a r , I r e m e i r b e r
t h a t .
0. ^ J i d , n o w , d i d i t p u l l a w a v a n d t h e n t h e s t o l e n c a r
p u l l u p t o t h e s t o p s i a n a n d s t o p ?
A. N o , s i r .
0. . ? ^ d , h o w — t e l l rn e t h a t s e q u e n c e , h o w t h a t —
A. ( I n t e r p o s i n a ) I a o t t o t h e s t o l e n c a r , t h a t
f i r s t c a r w a s s t i l l t h e r e . A n d , t h e n , a f t e r t h e d r i v e r b r o k e
a n d r a n a n d I h o l l e r e d a t h i m a n d f i r e d a n d t h e n t h e s t o l e n
c a r w e n t a v / a y , t h e n t h e o t h e r c a r w a s n ' t t h e r e .
0. Y o u d o n ' t k n o w w h a n i t l e f t ?
A. N o , s i r . I d o n ' t k n o v / . P r o b a b l y i t w o u l d h a v e h a d
t o w e n t s t r a i g h t a c r o s s F l o r i d a o n G a e a o r n o r t h o n F l o r i d a
b u t , I d o n ' t k n o w . I w o u l d t h i n k I w o u l d h a v e s a w i t h a d i t
t u r n e d s o u t h o n F l o r i d a b u t , . . .
0. I t h a p p e n e d — i t m . o v e d s o m e t i m e a f t e r y o u t o u c h e d
t h e c a r w i t h t h e o u n —
A.
Q.
a f t e r -
A
w a s —
( I n t e r p o s i n g ) Y e s , s i r .
( C o n t i n u i n g ) — a n d s a i d , " G e t o u t . " D i d i t h a p p e n
- - y o u d o n ' t k n o w , t h e n w h e t h e r i t h a p p e n e d a f t e r —
( I n t e r p o s i n g ) I d i d n ' t s e e i t l e a v e , n o , s i r . I t
8 3 '
-12-
V
1 0. ( C o n t i n u i n c r ) — t h e M a d i s o n b o y g o t o u t ?
2 A. I t w a s j u s t a m a t t a r o f a f e w s e c o n d s . B u t , I
3 d i d n ' t s e e i t l e a v e .
4 0. N o w , v r h e n y o u w e n t a c r o s s a n d c o t t h e o t h e r p e r s o n
5 o u t o f t h e c a r , h e w a s l y i n g d o w n i n t h e s e a t , i s t h a t r i g h t ?
6 A. I n t h e f l o o r , s i r . Y e s , s i r .
7 Q. A n d , c a n v o u r e m e m b e r h o w h a w a s l y i n a t h e r e ?
8 A. I b e l i e v e t h a t h i s — y o u m e a n w h e r e h i s f e e t a n d
9 h i s h e a d w e r e ?
10 0- Y e s .
11 A. I b e l i e v e t h a t h i s h e a d w a s o v e r t o w a r d t h e d r i v e r ' s
12 d o o r . T h a t h i s h e a d w a s u n d e r t h e s t e e r i n g w h e e l , s o t o
13 s p e a k .
14 p. A n d , w e r e h i s f e e t t h e n t o w a r d t h e p a s s e n g e r d o o r ,
15 l y i n g —
16 A. ( I n t e r p o s i n g ) A s I r e c a l l , y e s , s i r .
17 p. ( C o n t i n u i n g ) — p r e t t y m u c h s t r e t c h e d a c r o s s t h e r e "
18 A. A s I r e c a l l , s i r , y e s , s i r . I t w a s d a r k i n t h e c a r
19 a n d i t w a s a l l s o f a s t b u t , t h a t ' s h o w I r e c a l l i t , y e s , s i r .
20 p. N o w , y o u f i r e d y o u r s h o t o u n t h r e e t i m e s a t t h e
21 M a d i s o n b o y ?
22 A. W e l l , a c t u a l l y o n l y t w i c e . I s h o t o n e t i m e o v e r —
23 pL ( I n t e r p o s i n g ) U p t o t h e b u i l d i n g ?
24 A. Y e s , s i r .
8 3 1 2
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1 0. A n d , t h e n
A. Y e s , s i r .
h a v e m a d e t h e c o r n e r o n m e , i t v ; a s v e r y c l o s e .
Q. A n d , t h e n y o u f i r e d y o u r s h o t a u n o n c e a t t h e c a r
a f t e r i t m . o v e d o u t i n t o F l o r i d a ?
fl. R i g h t .
Q. A n d , t h e n y o u f i r e d y o u r p i s t o l a t h i m o n c e , i s
t h a t r i g h t ?
A. Y e s , s i r . T h a t ' s r i g h t .
Q. T h e s h o t g u n h a d f o u r s h e l l s i n i t ?
A. Y e s , s i r .
0. A n d , t h e n y o u h a d e x p e n d e d a l l o f t h e m a n d y o u d r e w
v o u r p i s t o l a n d f i r e d i t ?
A. R i g h t . -
Q- Y o u f i r e d y o u r p i s t o l — '
A. ( I n t e r p o s i n g ) I w a s r u n n i n g a t t h a t t i m e .
a R u n n i n g a f t e r t h e c a r ?
A. Y e s , s i r .
0. N o w , d o y o u k n o w w h a t — w e l l , w h e n y o u s t o p p e d
c a r t h a t w a s " B a k e r T w e l v e , " w a s i t ?
A, I b e l i e v e t h a t w a s .
0.
A.
0.
W a s t h a t t h e d e s i g n a t i o n o f i t ?
I b e l i e v e t h a t w a s a t t h a t t i m e .
W h e n v o u s t o p p e d i t , w h a t — d i d v o u t u r n o n t h e
B 3 3
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l i a h t s , t h e b l u e l i a h t s ?
R. I d o n ' t r e c a l l , s i r . L e t ' s s e e , m y p a r t n e r w a s
o p e r a t i n g a l l t h a t . I d o n ' t r e a l l y r e c a l l .
Q. W a s i t — w h a t d i d y o u d o , d o y o u k n o w w h e t h e r h e
c u t t h e e n g i n e a n d p u t i t i n p a r k ?
A. I ' m s u r e h e d i d n ' t — I ' m . s u r e h e m a y h a v e — I
d o n ' t k n o w . B u t , I ' m s u r e h a d i d n ' t c u t t h e e n a i n e o f f .
0. D i d t h a t c a r m . o v e — i t d i d n ' t m o v e . I t v / a s i n a
s t a t i o n a r y p o s i t i o n s o i t c o u l d n ' t m o v e , i s t h a t r i a h t ? I
m e a n i n D a r k o r s o m e t h i n g l i k e t h a t ?
A. T h e s a u a d c a r ?
A.
w a s o v e r .
0.
Y e s .
I n e v e r s a w i t m o v e , n o , s i r . N o t u n t i l a f t e r i t
D i d — a t s o m e p o i n t y o u w e n t b a c k t o i t a n d i t w a s
i n t h e s a m e p l a c e i t h a d b e e n w h e n y o u h a d g o t t e n o u t , i s t h a t
r i g h t ?
A. W e l l , s i r , w h e n I w a s g e t t i n g t h e s e c o n d a u v o u t o f
t h e c a r o n t h e o t h e r s i d e o f F l o r i d a S t r e e t I l o o k e d b a c k a n d
a s I r e c a l l L e w w a s g o i n g , m y p a r t n e r , w a s g o i n g b a c k t o t h e
c a r a n d g o t i n i t a n d p u l l e d i t a r o u n d d o v m s o u t h o n F l o r i d a .
Q. Y o u s a w h i m g e t i n i t a n d i t w a s i n t h e s a m e p l a c e
i t h a d b e e n w h e n v o u h a d a o t t e n o u t o f i t ?
Y e s , s i r .
9". \
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Q. D o y o u r ^ i r a m b e r t h a t t h a y f o u n d t h e e x p e n d — t h e
t h r e e e x p e n d e d s h e l l s i n a c e r t a i n p l a c e ? D o y o u r e m e m b e r
w h e r e t h e y f o u n d t h o s e ?
A. T h e r e w a s a — a s I r e c a l l , a d r a i n a g e g r i l l r i g h i
t o m y r i g h t u p t h e w a y , u p t h e s t r e e t t h e r e t o v r a r d F l o r i d a
f r o m w h e r e I w a s s t a n d i n g a n d I ' m n o t s u r e i f a l l o f t h e m .
w e n t i n t h e r e o r n o t . I r e m e m b e r t h a t o n e o r t w o o f t h e m ,
m a y b e a l l t h r e e o f t h e m d i d , I d o n ' t r e c a l l . B e c a u s e t h e y
h a d t o c a l l a w r e c k e r , I b e l i e v e , t o p u l l t h e g r i l l u p i n
o r d e r t o r e t r i e v e t h e m . I d o n ' t t h i n k t h e v e v e r f o u n d t h e
f o u r t h o n e .
0.
A.
0.
A.
0.
T h e f o u r t h o n e w a s o n e t h a t w a s f i r e d a t —
( I n t e r p o s i n g ) A t t h e c a r .
( C o n t i n u i n g ) — t h e c a r ?
R i g h t , s i r .
N o w , d o y o u k n o w — y o u f i r e d t h e f i r s t t h r e e s t a n d
i n g i n t h e s a m . e p l a c e . Y o u d i d n ' t m o v e ?
A. N o , s i r . I d i d n ' t m o v e .
Q. A n d , w a s t h a t t h e s a m e p l a c e y o u w e r e s t a n d i n g w h e n
y o u t a p p e d t h e c a r w i t h t h e g u n ?
A. B a s i c a l l y , y e s , s i r .
0. A n d , w a s i t — w h e r e w a s w h e r e y o u w e r e s t a n d i n g i n
r e l a t i o n s h i p t o t h a t d r a i n a a e a r i l l ? W a s i t n e x t t o i t ?
A. I d o n ' t r e c a l l . I t w a s t o m y r i g h t , I b e l i e v e , u p
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1 t o w a r d F l o r i d a . I d i d n ' t r e a l l y s e e i t u n t i l a f t e r i t w a s
o v e r a n d t h e y w e r e t r y i n g t o f i n d t h e s h e l l s .
0. D o y o u k n o w w h e r e y o u w e r e s t a n d i n g w h e n y o u f i r e d
t h o s e t h r e e s h o t s ?
A. I t w a s o n t h e — i t w a s n ' t o n t h e s i d e w a l k , I d o n ' t
b e l i e v e . I b e l i e v e i t w a s u p o n t h e c u r b b e t w e e n t h e
s i d e w a l k a n d t h e s t r e e t . I w a s u n a b l e t o c h a s e t h e i n d i v i d u a l
o n f o o t b e c a u s e t h e s q u a d c a r w a s r i g h t b e h i n d t h e s t o l e n c a r
a n d t h e l a s t t i m e I h a d s a w t h e o t h e r u n i d e n t i f i e d c a r , i t
w a s r i g h t i n f r o n t o f t h e s t o l e n c a r . I w a s b l o c k e d i n b y
t h e s e t h r e e v e h i c l e s .
Q. N o w , d i d — w h e n y o u p u l l e d u p w i t h t h e s a u a d c a r ,
y o u d i d n ' t p u l l u p s o y o u t o u c h e d t h e s t o l e n c a r , d i d y o u ?
A. I t w a s v e r y c l o s e . , I d o n ' t — I ' m s u r e w e w e r e n ' t
t o u c h i n g . I d o n ' t r e m e m b e r a t o u c h b u t w e w e r e v e r y c l o s e .
W e w e r e r i g h t o n t h e i r b i o m p e r .
, Q. A n d , i t ' s y o u r r e c o l l e c t i o n t h a t y o u s t o o d i n t h e
s a m e p l a c e f r o m w h e r e y o u t a p p e d i t w i t h t h e a u n ?
A. W i t h i n — w i t h i n j u s t t w o o r t h r e e s t e p s , p r o b a b l y ,
u p a n d d o w n t h e s i d e o f t h e c a r t h e r e , t h e s i d e o f t h e s t o l e n
c a r .
0-
A.
Q.
T h o s e s h e l l s k i c k o u t o f t h e g u n t o t h e r i g h t ?
T o t h e r i g h t , y e s , s i r .
W h a t w a s t h e — w h a t w a s — d u r i n g t h e p e r i o d o f
OOl)
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1 t i m e f r o m t h e t i m e y o u a o t o u t o f t h e c a r u n t i l y o u
a p p r e h e n d e d t h e p e r s o n i n t h e s t o l e n c a r , d i d y o u k n o w w h a t
y o u r p a r t n e r w a s d o i n g ?
A. N o t r e a l l y , n o , s i r . I t w a s a l l v e r y f a s t . I d o n ' t
r e c a l l — I d o n ' t r e c a l l s e e i n g L e w -
0, D i d y o u t w o s h o u t a n y t h i n o t o e a c h o t h e r ?
A. N o t t h a t I r e c a l l , s i r . I t w a s a l l i n a m . a t t e r o f
a f e w s e c o n d s a n d I d o n ' t r e c a l l s e e i n g m y p a r t n e r u n t i l
a f t e r I h a d t a k e n t h e g u y o u t o f t h e s t o l e n c a r .
0. W h e n y o u p u l l e d u p b e h i n d t h e s t o l e n c a r , d i d t h e
t w o o f y o u d i s c u s s h o w y o u w e r e f i x i n g t o h a n d l e t h i s
s i t u a t i o n ?
A. I t h i n k I s a i d s o m e t h i n g a s I w a s g e t t i n g o u t . I
d o n ' t r e m e m b e r L e w s a y i n g a n y t h i n g .
0. S o , a n d h e w a s h a n d l i n g t h e r a d i o , i s t h a t r i a h t ?
A. Y e s , s i r . H e w a s d r i v i n g a n d t a l k i n g o n t h e r a d i o .
0. A n d , h a h a d i d e n t i f i e d — h e h a d t o l d t h e d i s o a t c h e : | -
t h a t t h e s t o l e n c a r w a s r i g h t i n f r o n t o f y o u ?
A. I t s e e m s l i k e —
Q. ( I n t e r p o s i n g ) O r , y o u h a d p u l l e d u p b e h i n d h i m o r
s o m e t h i n g — h e h a d t o l d t h e d i s p a t c h e r t h a t y o u w e r e r i g h t
b e h i n d t h e c a r o r s o m e t h i n g l i k e t h a t ?
A. S o m e t h i n g o f t h a t n a t u r e , y e s , s i r . I s e e m t o
r e m e m b e r h i m t e l l i n g t h e d i s p a t c h e r t h a t w e w e r e w e s t o n G a g e
837
-18-
1 a p p r o a c h i n a F l o r i d a .
2 Q- A n d , s o , y o u t w o d i d n ' t d i s c u s s a t a l l w h a t y o u w e r e
3 f i x i n g t o d o . Y o u g o t o u t a n d s a i d " s o m e t h i n g " t o h i m b u t
4 y o u d i d n ' t s a y I ' l l d o t h i s a n d y o u d o t h a t o r . . .
5 A. I b e l i e v e I s a i d s o m e t h i n g t o t h e e x t e n t t h a t , " W e ' v i
S g o t t h e m b o x e d . "
7 0- N o w , d o y o u k n o w w h e n h e a o t o u t o f t h e c a r , y o u r
8 p a r t n e r ?
9 A. N o , s i r . I r e a l l y d o n ' t .
10 0- O t h e r t h a n , " W e ' v e g o t t h e m b o x e d , " t h a t ' s a l l y o u
11 s a i d t o y o u r p a r t n e r ?
12 A. T h a t ' s a l l I r e c a l l . S o m e t h i n a o f t h a t n a t u r e , y e s
13 s i r .
14 Q- Y e s .
15 A. I t ' s b e e n e i g h t y e a r s .
16 Qi D i d y o u h e a r a n y s h o t s f i r e d o t h e r t h a n t h e — w e l l ,
17 y o u f i r e d f i v e s h o t s , d i d n ' t y o u ?
18 A. Y e s , s i r .
19 0- T h a n t h e f i v e y o u f i r e d ?
20 A. Y e s , s i r . I h e a r d o n e o t h e r s h o t .
21 Q. Y o u d i d n ' t k n o w w h e r e t h a t c a m e f r o m ?
22 A, N o , I r e a l l y d i d n ' t . I t h o u g h t i t m i g h t h a v e b e e n
23 n i y p a r t n e r b u t I d i d n ' t k n o w .
24 Q. W h e n d i d t h a t — i n r e l a t i o n s h i p t o t h e f i v e y o u
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1 f i r a d , w h e n d i d t h a t o n e , t h a t o t h e r s h o t — y o u k n o w , o f
c o u r s e , l a t e r o n y o u l e a r n e d h a d i d f i r a a s h o t ?
Y e s , s i r . R i g h t .
Q. A n d , s o t h a t w a s h i s s h o t ?
A. Y e s , s i r .
0. W h e n w a s h i s s h o t f i r e d ?
A. I t w a s v a r y c l o s e t o t h e t i m e I f i r e d m y t h i r d s h o t .
I d o n ' t k n o w i f i t w a s j u s t b e f o r e o r j u s t a f t e r . Y o u k n o w ,
i t w a s v a r y c l o s e t o m y t h i r d s h o t .
Q. N o w , w h a t , t o y o u r r e c o l l e c t i o n , w a s t h e D e p a r t m e n t '
p o l i c y c o n c e r n i n g t h e u s e o f d e a d l y f o r c e o n J a n u a r y 1 3 , 1 9 7 2 ?
A. A s I r e c a l l , s i r , i t w a s b a s i c a l l y S t a t e L a w .
0. A n d , w h a t w a s t h a t ?
A. T h e u s e o f d e a d l y f o r c e i s p e r m i s s i b l e i n t h e
a p p r e h e n s i o n o f f e l o n s o r a t t e m p t f e l o n s .
0- N o w , h a d y o u h a d s o m . e b o d y e x p l a i n t h i s t o y o u ?
A. Y e s , s i r . W e ' d - - l e t ' s s e e . O f c o u r s e , t h e
A c a d e m y h a d b e e n i n ' 6 9 a n d t h a n I b e l i e v e w e h a d s t a r t e d
i n - s e r v i c e t r a i n i n g a t t h a t t i m e , I b e l i e v e . I n - s e r v i c e
t r a i n i n g , a n n u a l i n - s e r v i c e t r a i n i n g .
0. C a n y o u r e m e m b e r a n y b o d y e v e r e x p l a i n i n g t o y o u
w h a t t h e p o l i c y w a s a n d w h a t t h e S t a t e L a w w a s ?
A. W e l l , i t w a s f a i r l y s e l f - e x p l a n a t o r y . E v e r y o n e
p r i m a r i l y k n e w w h a t i t w a s . I t w a s s o m e t h i n g t h a t w a s , y o u
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1 k n o w , d i s c u s s e d q u i t e a b i t . T h e c o m m a n d i n g o f f i c e r f r o m
t i m e t o t i m e w o u l d t a l k w i t h y o u a b o u t i t .
Q. A l l r i g h t . W h a t I ' m — y o u k n o w w h e n I — I w e n t
t h r o u g h l a w s c h o o l I l e a r n e d s o m . e t h i n g s a n d s o m e o f t h e m I
r e m e m b e r w h e r e I l e a r n e d t h e m .
f l . R i a h t .
0. A n d , s o , y o u k n o w , I c a n r e m e m b e r c e r t a i n
p r o f e s s o r s t r y i n g t o t e a c h m e c e r t a i n t h i n g s .
A. W e h a d a , y o u k n o w —
Q. ( I n t e r p o s i n g ) C a n y o u r e m e m b e r a n v o f t h e s e t i m . e s
w h e n y o u m a y h a v e h a d d i s c u s s i o n s o f a c o m m a n d i n g o f f i c e r a n d
j u s t t a l l m e a b o u t i t ?
A. W e l l , w e h a d q u i t e a b i t o f t h a t w h e n I c a m e t o
t h e A c a d e m y i n ' 6 9 .
0. A l l r i g h t . V T ho d o y o u r e m e m b e r d e a l i n g w i t h t h i s
s u b j e c t i n t h e A c a d e m y ?
A. I t w a s L i e u t e n a n t C o l a t t a .
Q. A l l r i g h t . ^ " T h a t d i d — w h a t d o y o u r e m e m b e r
L i e u t e n a n t C o l e t t a t e l l i n g y o u ?
A A s f a r a s t h e d e a d l y f o r c e p o l i c y ?
a Y e s .
A. T h a t , y o u k n o w , t h e y w e n t o v e r t h e S t a t e L a w S t a t u t e :
q u i t e a b i t a n d e x p l a i n e d i t .
Q. W h a t d i d h e s a y a b o u t i t ?
8<10 -21-
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A. O h , g e e . W h a t d i d h e s a y a b o u t i t ? W e l l , t h e y
t o l d y o u t h e d i f f e r e n t c a t e g o r i e s t h a t w a r r a n t e d t h e p o s s i b l e
u s e o f d e a d l y f o r c e . W e n t o v e r t h e i n g r e d i e n t s o f e a c h o f
t h e s e c a t e g o r i e s . G a v e y o u s o m e e x a m p l e s , e x p l a i n e d t h e m t o
y o u , t h i n g s o f t h a t n a t u r e .
0- A n d , f o r i n s t a n c e , g i v e m s a n e x a m p l e o f w h a t y o u ' r e
t a l k i n g a b o u t , t h e c a t e g o r i e s ?
A. W a l l , l i k e t h e r e ' s h o m i c i d e a n d a t t e m p t h o m i c i d e .
R a p a a n d a t t e m p t r a p s , r o b b e r y a n d a t t e m p t r o b b e r y , b u r g l a r y
a n d a t t e m p t b u r g l a r y a n d , a t t h a t t i m e , a u t o t h e f t a n d
a t t e m p t a u t o t h e f t . A n d , a r s o n , I b e l i e v e , t o o .
0- A n d , s o w h a t — y o u c o u l d u s e d e a d l y f o r c e i n w h a t
k i n d s o f s i t u a t i o n s ? L e t ' s s a y — c a n y o u r e m e m b e r s o m e b o d y
t a l k i n g t o y o u , d o y o u r e m e m . b e r C a p t a i n - - L i e u t e n a n t
C o l e t t a , i s t h a t —
A. ( I n t e r p o s i n g ) W e l l , h e ' s a C a p t a i n n o w . H a w a s
a L i e u t e n a n t t h e n , r i g h t .
0- L i e u t e n a n t C o l e t t a , d o y o u r e m e m b e r h i m g i v i n g y o u
a n e x a m p l e a b o u t s a y a r o b b e r y o r s o m e t h i n g ?
A W o , I d o n ' t . I r e a l l y — l i k e I s a y , i t ' s b e e n
w e l l o v e r t e n y e a r s .
Q. D i d y o u g e t a n y w r i t t e n m a t e r i a l o n t h i s ?
A W e l l , s i r , s i n c e ' 7 2 w e ' v e g o t q u i t e a — w a l l ,
s i n c e r e a l l y ' 7 3 . H o w , I ' m t r y i n g t o r e m e m b e r w h a t I k n e w —
841
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0.
A.
0.
(Interposing) Yes, sir.
(Continuing) — in '72 is, you know,
(Interoosino) I know it's difficult.
A. Right. Some policies have changed now and different
things but, we've gotten tremendous amounts since '73, but,
'72, it's not as easy for me to remember back that far. But,
we've received a tremendous amount of paper work and all since
'73. Seems to be almost on an annual basis. And, of course,
in in-service traininc, they're always gone over.
0. That, that — excuse me. I didn't mean to
interrupt you. Go ahead.
A. Well, in the in-service training each year that we
have, we have a week of in-service trainino each year and
the revisions to the .shooting policy are gone over in great
detail each year.
0. Prior to '73 and certainly prior to this time in
January of '72, you really hadn't aotten any written material
about it, it had been discussed, is that right?
A. Not that I can recall, sir. I'm not really sure.
0. Did you ever, prior to '72, now, prior to January of
'72, did you act as a training officer for any new recruits?
A, Yes, sir.
0. Is "recruit" the right word for new officer?
A. Yes, sir. Yes, sir. That's right.
- 2 3 -
1 0. P r i o r t o J a n u a r y ' , ' 7 2 ?
2 fl. Y e s , s i r .
3 Q. D o y o u r e m e m b e r — c a n y o u g i v e m e t h e n a m . e o f o n e
4 o r t w o o f t h o s e p e r s o n s w h o m v o u a c t e d a s t r a i n i n g o f f i c e r
5 f o r ?
6 A. O n e w a s R . R . J o n e s o r , w a s t h a t — h e w a s a J o n e s
7 a n d t h e n t h e r e w a s a n o f f i c e r n a m e d D i l l , I b e l i e v e . D e a l o r
8 D i l l a n d , . . .
9 0. D o y o u r e m e m b e r e v e r d i s c u s s i n g i t w i t h J o n e s o r
10 D i l l t h e d e a d l y , t h i s p o l i c y a b o u t t h e u s e o f f o r c e ?
11 A. Y e s , s i r .
12 Q. S o , y o u w o u l d r e m e m b e r h o w y o u d e s c r i b e d i t t o t h e m ,
13 i s t h a t r i g h t ?
14 A. Y e s , s i r .
15 Q. J u s t p r e t e n d I ' m J o n a s a n d y o u ' r e t a i l i n g m e a b o u t
16 t h i s p o l i c y , a s b e s t y o u r e m e m b e r n o w , a n d I k n o w i t ' s a l o n g
17 time ago. But, what did vou tell me?
18 A. B a s i c a l l y , t h a t y o u h a v e t h e r i g h t t o u s e d e a d l y
19 f o r c e i n t h e a p p r e h e n s i o n o f a f e l o n i f h e f a l l s w i t h i n a
20 c e r t a i n n u m b e r o f c a t e g o r i e s . A n d , t h o s e w o u l d b e h o m i c i d e
21 o r a t t e m p t h o m i c i d e , r a p e o r a t t e m o t r a p e , r o b b e r y , a t t e m p t
22 r o b b e r y , b u r g l a r y , a t t e m o t b u r g l a r ^ / a n d , a t t h a t t i m e , g r a n d
23 l a r c e n y o f a v e h i c l e o r a t t e m p t g r a n d l a r c e n y o f a v e h i c l e
24 a n d a r s o n . I f y o u k n e w t h a t t h e i n d i v i d u a l v ; a s r e s p o n s i b l e .
-24-
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1 and he refused your orders to halt and there was no other
way you could apprehend him.
0. And, now, you —
fl. (Interposing) Did I — did I add that if, you know,
if your field of fire vras clear? I don't know whether I said
that or not.
0. I don't believe you did.
A Well, your field of fire had to be clear.
0. Now, in this situation here, on January 13, 1972 ,
is it your feelina that you followed the policy that existed
at that time?
A. Yes, sir.
0. And, why was that, why do you feel you follovjed
that policy?
A Well, sir, if he'd have made that corner there, I
was very familiar with the ward and my partner much more so
than I, he had worked in that neighborhood for many years —
0. (Interposing) You said, "familiar with the 'ward'?’
A The geographical area that we were assigned to.
0. Okay. I just didn't understand your word.
A Okay. And, there is an alley that runs — or, at
that time, there was an alley there and, in all probability
still is, that runs back east off Florida a way south of the
intersection where this happened. And, we were back from the
8 4 i -25-
1 c o r n e r a n d I k n e w t h a t i f h a g o t t h a t c o r n e r o n u s t h a t t h e
2 a l l e y w a s j u s t a f e w s t e p s d o w n a n d h e w a s g o n e . A n d , I h a d
3 these three vehicles blocking me. I didn't look over at Lew
4 b u t I d i d n ' t s e e h i m . I d i d n ' t s e e L e w ? m y p a r t n e r . A n d , I
5 had these three vehicles blocking me.
e I s t i l l h a d t h i s o n e m a n i n t h e c a r , r i g h t a t m y —
7 r i c r h t a t m v w a i s t h e r e . I w a s v e r y f r i g h t e n e d a b o u t t h a t
8 b e c a u s e I w a s o b s e r v i n g t h i s m a n t h a t w a s r o l l i n g o u t o n t h e
9 p a s s e n g e r s i d e . I d i d n ' t k n o w w h a t t h i s o n e w a s d o i n g . I
10 h a d t o s t a n d u p a n d t h e w i n d o w w a s r i g h t h e r e ( i n d i c a t i n g ) .
11 A n d , I h a d t h i s m a n t o c o n t e n d w i t h a n d i f t h a t m a n r u n n i n g
12 r e a c h e d t h e c o r n e r , h e w a s a o n e .
13 Q. And vou, since you didn't know what your partner
14 w a s d o i n g , y o u w e r e c o v e r i n g b o t h o f t h e s e —
15 fl. ( I n t e r p o s i n g ) Y e s , s i r . I w a s a t t e m p t i n g t o .
16 T h e l a s t t i m e I s a w m y p a r t n e r , h e w a s o n t h e r a d i o a n d w h e n
17 t h i s m a n r o l l e d o u t , i t w a s a f t e r 1 1 : 0 0 a t n i g h t a n d i t w a s
18 ver̂ ̂cold, I remember the wind was blowing. And, it was
19 q u i t e d a r k o n t h a t l i t t l e s i d e s t r e e t . ^ ' I h e n h e r o l l e d o u t ,
20 I never really got a good look at him. The door flaw open
21 a n d h e w a s o u t . A n d , I c o u l d n ' t r e a l l y s e e a n y t h i n g m o r e t h a i j i
22 a f o r m , r e a l l y . A n d , a f t e r I f i r e d o v e r h i s h e a d , I f i r e d a t
23 h i m a n d t h e c a r w e n t o u t f r o m u n d e r m e a n d t h e n I d i r e c t e d
24 m y a t t e n t i o n t o t h e o n e t h a t w a s s t i l l i n t h e c a r .
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s h o t a t E d d y M a d i s o n ?
A. A b o u t t h a t .
0. A f t e r y o u r t h i r d s h o t . I r e a l i z e V 7 h e n y o u f i r e d
y o u r f i r s t s h o t —
A. ( I n t e r p o s i n g ) R i g h t . R i g h t , s i r . I t w a s a l l v a r y ,
v a r y f a s t . T h e w h o l e i n c i d e n t w a s j u s t a f a v ; s e c o n d s .
0. B e t w e e n t h e t i m e y o u s a v ; t h e d r i v e r ' s d o o r o p e n
a n d E d d y M a d i s o n w a n t o u t o f t h e c a r u n t i l t h e c a r m o v e d , y o u
h a d n o t o b s e r v e d t h e p e r s o n w h o w a s s t i l l i n t h e c a r , i s t l i a t
r i g h t ? B e c a u s e y o u h a d b e a n d i r e c t i n g y o u r s a l f t o w a r d - -
A. ( I n t e r p o s i n g ) R i g h t . R i g h t .
Q. ( C o n t i n u i n g ) - - t h e p e r s o n w h o w a s f l e e i n g . Y o u
h a d f i r e d once a b o v e h i m a n d t h e n t w i c e a t h i m ?
A. Y e s , s i r . I w a s v e r y a p p r e h e n s i v e a b o u t i t . L i k e
I s a i d , i t w a s o n l y a f e w s e c o n d s b u t I d i d n ' t k n o w v / h a t h a
v / a s d o i n g . A n d , h a w a s — h e w a s t h i s c l o s a t o m e ( i n d i c a t i n g )
V J i t h i n a c o u p l e o f f e a t . O f c o u r s e , t h e w i n d o w w a s u p , b u t
s t i l l .
Q. The car went "out from under you" after your third
0. T h e w i n d o w w a s u p ?
A. Y e s , s i r .
Q. A l l t h e w i n d o w s o n t h e c a r w a r e c l o s e d , w a r e t h e y ?
A. I k n o w a l l t h e o n e s o n t h e r i g h t s i d e w a r s . I ' m
n o t s u r e a b o u t t h e l e f t . I a s s u m e t h e y w e r e . I t w a s v e r y
- 2 7 -
1 c o l d t h a t n i q h t . V e r y c o l d .
2 0. I n — t h e f i r s t s h o t y o u f i r e d , w o u l d y o u c l a s s i f y
3 t h a t a s a w a r n i n g s h o t ?
4 A. Yes, sir. I would.
5 Q. A n d , w h a t w a s t h e D e p a r t m e n t ' s p o l i c y o n w a r n i n g
6 s h o t s i n ' 7 2 ?
7 A. T h e r e r e a l l y w e r e n ' t a n y w a r n i n g s h o t s f i r e d . T h a t
8 w a s t h e s t a n d a r d o p e r a t i n g p r o c e d u r e a t t h a t t i m e .
9 0. W h a t d o y o u m e a n , d o v o u m e a n t h e r e w a s a p o l i c y
10 a g a i n s t f i r i n g w a r n i n g s h o t s ?
11 A. Y e s , s i r .
12 0. S o , y o u v i o l a t e d t h a t p o l i c y w h e n y o u f i r e d t h a t
13 w a r n i n g s h o t ?
14 A. T e c h n i c a l l y , y e s , s i r . I t h o u g h t t h a t p e r h a p s t h e
15 m a n w o u l d s t o p a n d I t h o u g h t I h a d a s o l i d b r i c k w a l l a s a
16 b a c k d r o p .
17 Q. B u t , o t h e r t h a n t h a t , y o u — t h a t t e c h n i c a l v i o l a t i o n
18 o n t h e w a r n i n g s h o t , y o u f e e l y o u c o m p l i e d w i t h t h e p o l i c y ?
19 A. O h , y e s , s i r . I k n o w I d i d . O f c o u r s e , t h a t w a s
20 t h e p o l i c y i n J a n u a r y , ' 7 2 . T h e r e ' s b e e n m a n y r e v i s i o n s
21 s i n c e t h e n .
22 0. H a d y o u b e e n i n v o l v e d i n — h a v e y o u f i r e d y o u r
23 w e a p o n a t o t h e r p e r s o n s ?
24 A. Y e s , s i r . B e f o r e o r s i n c e ?
817
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1 a Either.
-A. Y e s , s i r .
0. W h a t a b o u t b e f o r e , h a d y o u f i r e d y o u r w e a p o n a t
o t h e r p e r s o n s —
M R . S H E A : ( I n t e r p o s i n g ) A t t h i s t i m e , I ' m
g o i n g — a t e c h n i c a l o b j e c t i o n t o a n y t h i n g t h a t h a s
t r a n s p i r e d s i n c e J a n u a r y o f 1 9 7 2 .
M R . A R ? T 0 L D : A l l r i a h t .
0. ( B y M r . A r n o l d ) B u t , h a d y o u f i r e d y o u r w e a p o n
b e f o r e ' 7 2 , J a n u a r y , ' 7 2 ?
A. I b e l i e v e o n e t i m e , s i r .
0. V T h a t w a s t h a t i n c i d e n t ?
A. I t w a s - a b u r g l a r y o f a n a p a r t m e n t . I b e l i e v e o n
C o l l e g e S t r e e t i n t h e s u m m e r o f 1 9 7 0 o r t h e s p r i n g o f 1 9 7 0 ,
s o m e t h i n g o f t h a t n a t u r e . A n d , I j u m p e d a n i n d i v i d u a l r u n n i n c
f r o m - t h e a p a r t m e n t c a r r y i n g s o m e f u r n i t u r e a n d c h a s e d h i m a
s h o r t w a y s . H e d r o p p e d t h e f u r n i t u r e a n d c o n t i n u e d t o r u n .
I s h o u t e d a t h i m s e v e r a l t i m e s a n d h e c o n t i n u e d t o r u n . I
f i r e d a t h i m o n e t i m e a n d h e e s c a p e d .
Q. W h e r e i s C o l l e g e S t r e e t ?
A I t c r o s s e s M c L e m o r e b e t w e e n A z a l i a a n d N e p t u n e , I
b e l i e v e , s i r .
Q. I n t h a t s i t u a t i o n , n o w , y o u h a d g o t t e n a c a l l a b o u t
a b u r g l a r a n d y o u a n s w e r e d a c a l l o n t h e r a d i o , i s t h a t w h a t
84S -29-
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1
A.
Q.
A.
a
A.
0.
A.
happened?
Y e s , s i r . R i g h t , s i r .
D i d y o u h a v e t h e s a m e p a r t n e r ?
N o , s i r . N o , s i r .
W h o w a s y o u r p a r t n e r ?
J o h n C . M o o r e .
S - E - Y - M - O - R - E ?
S i r ?
0. S e y m o r e , o r . . .
A ̂ N o , n o . J o h n C . , i n i t i a l , M o o r e .
0. C . i n i t i a l , M o o r e ?
A. R i g h t .
0, T h a n k y o u . H o w d i d t h a t c o m e a b o u t . Y o u g o t a
c a l l a b o u t o f a — a b o u t a b u r g l a r y —
A. ( I n t e r p o s i n g ) Y e s , s i r .
0. ( C o n t i n u i n g ) — i n p r o g r e s s ? I s e e .
A. R i g h t . A n d , w e a r r i v e d o n t h e s c e n e a n d w e d i d n ' t
h a v e t h e w a l k i e - t a l k i e s t h e n , o f c o u r s e , w e ' v e o n l y h a d t h e m
a f e w y e a r s . T h e p e o p l e t h a t c a l l e d u s s a i d t h a t t h e g u y s
h a d a l r e a d y l e f t g o i n g i n t o t h e f i e l d n o r t h w e s t o f t h a t
l o c a t i o n . S o , m y p a r t n e r s a i d t h a t h e w a s g o i n g t o g e t i n
t h e s q u a d c a r a n d p u t t h e b r o a d c a s t o u t a n d c r u i s e i n t h e
s q u a d c a r i n a n a t t e m p t t o c u t t h e m o f f . S o , I w a s t h e
p a s s e n g e r s o I s t a y e d t h e r e a n d s t a r t e d t o t a k e a b u r g l a r y
84'.)
-30-
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1
A t t h a t t i m e , o n a o f t h e p e o p l e v / h o c a l l e d u s , c h a r s
w e r e s e v e r a l p e o p l e t h e r e , o n e o f t h e p e o p l e t h a t c a l l e d u s - -
I w a s a t t h e i r a p a r t m e n t w h i c h w a s c l o s e t o t h e b u r g l a r i z e d
a p a r t m e n t , w h e r e I h a d , c o u l d h a v e a t e l e p h o n e . A n d , t h e y
c a m e a n d s a i d t h a t t h e b u r g l a r s w e r e b a c k g e t t i n g m o r e o f
t h e f u r n i t u r e o u t o f t h e a p a r t m i e n t . A p p a r e n t l y t h e y h a d n ' t
s a w u s a r r i v e a n d t h a n m y p a r t n e r l e a v e .
A n d , I w e n t r u n n i n g o u t a n d t h i s g u y g o e s r u n n i n g
o u t c a r r y i n g w h a t I t h o u g h t a t t h e t i m e w a s s o m . a s p e a k e r s t o
a p h o n o g r a p h . I t t u r n e d o u t t h e y w e r e tx^7o d r a w e r s fco a
c h i f f o r o b s o r a c a b i n e t . A n d , I c h a s e d h i m i n t o t h e f i e l d
s h o u t i n g a t h i m a n d h e d r o p p e d t h e f u r n i t u r e a n d c o n t i n u e d
t o r u n . I f i r e d a t h i m o n e t i m . e a n d h e e s c a o e d .
rsporr.
0.
A
A
0.
A
Q-
A
Q.
A
Y o u o n l y f i r e d o n e t i m e ?
Y e s , s i r .
I m i s u n d e r s t o o d y o u .
R i g h t .
N o w , y o u s a w h i m c o m e o u t o f a h o u s e ?
A n a p a r t m e n t .
A n a p a r t m e n t ?
Y e s , s i r .
A n d , w h e r e w a r s y o u w h e n y o u f i r s t s a w h i m ?
C o m i n g o u t o f — I h a d c o m . e o u t o f a n o c h e r a p a r t m i e n i .
P'ln
-31-
there.
2 0. W a s i t t h e a d j a c e n t a p a r t m e n t o r v ; a s i t f a r t h e r . . .
3 S" W e l l , i t w a s s o m e d i s t a n c e a w a v . H a w a s s o m e
4 d i s t a n c e f r o m m e .
5 Q. T h e n , h e r a n t o w a r d t h e f i e l d a n d i n t o t h e f i e l d ?
6 A. Y e s , s i r .
7 Q. A n d , w h a t d i d y o u d o ?
8 A. W e l l , I s a w h i m . a n d t h e n I l o s t s i g h t o f h i m f o r a
9 s e c o n d b e c a u s e t h e f i e l d d i p s d o w n . G e e , t h i s h a s b e a n t a n
10 y e a r s a g o . I t ' s b e h i n d w h a t a t t h a t t i m . a w a s t h e o l d
11 M c L a m o r e C l i n i c w h i c h w a s a b a n d o n e d t h e n . I d o n ' t e v e n k n o w
12 i f i t ' s s t i l l t h e r e . I t w a s a n o l d a b a n d o n e d d o c t o r ' s o f f i c e ,
13 A l a r g e b r i c k . A n d , I r a n d o w n t h e r e , t h e r e ' s a t r a i l t o
14 w h e r e I l a s t s a w h i m a n d h e w a s r i g h t a t t h e t o p o f a s m a l l
15 r i s e o r a h i l l a n d . t h e t r a i l w e n t a w a y f r o m m e , l o w e r . A n d ,
16 h e w a s r u n n i n g u p b e h i n d t h e c l i n i c , h e a d i n g t o w a r d M c L e m o r e .
17 A n d , h a w a s f i f t y y a r d s , m a y b e . F o r t y - f i v e , f i f t y y a r d s f r o m
18 m e a n d I s h o u t e d a t h i m a c o u p l e o f m o r e t i m e s a n d f i r e d o n e
19 t i m e a t h i m .
20 A n d , a f t e r I f i r e d o n e t i m e , h e w a s a r o u n d t h e
21 c o r n e r o f t h e b u i l d i n g a n d g o n e .
22 0. S o , h o w f a r d i d y o u g o f r o m t h e — v / h e r e y o u s h o t
23 f r o m w h e r e y o u f i r s t s a w h i m ?
24 A. W e l l , s i r , I s a w h i m i n i t i a l l y a n d t h e n l o s t s i g h t
851
- 3 2 -
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1 o f h i m . I s a w h i m a n d s a w — I t h o u g h t h a w a s c a r r y i n g
s p e a k e r s . A n d , t h e n , s e a t h e g r o u n d d r o o s a n d t h e n h e w a s
l o s t t o t h e s i g h t o f m e . I r a n t o t h a t p o i n t a n d s a w h i m
r u n n i n a u p b e h i n d t h e c l i n i c .
Q.
A,
p.
O k a y . H o w f a r d i d y o u r u n ? T h a t ' s w h a t I w a s . . .
O h , g e e . M a y b e f i f t y y a r d s . I d o n ' t r e a l l y r e c a l l ,
I t w a s p a s t w h e r e y o u ' d s e e n h i m c o m e o u t o f t h e
a p a r t m e n t t o —
A. ( I n t e r p o s i n g ) Y e s , s i r .
p. ( C o n t i n u i n a ) — w h a t , t h e e d g e o f t h e f i e l d o r
s o m e t h i n g l i k e t h a t ?
A. R i g h t . L i k e I s a y , . 1 l o s t s i g h t o f h i m a n d I r a n
t o w h e r e I h a d l a s t s a w h i m a n d s a w h i m a g a i n g o i n g u p b e h i n d
t h e c l i n i c . I s h o u t e d a g a i n , I f i r e d a t h i m . H e s t i l l h a d
t h e c l i n i c a s a b a c k d r o p a t t h a t t i m e . T h e o l d a b a n d o n e d
b r i c k c l i n i c . A n d , a f t e r I f i r e d a t h i m , h e r a n u p b e s i d e
t h e c l i n i c a n d t h e r e w a s t r a f f i c o n M c L e m o r e . I m i g h t h a v e
h a d t i m e t o f i r e a g a i n b u t I c o u l d n ' t t h e n . A n d , h e — I
c h a s e d h i m o n b u t h e w a s g o n e . I n e v e r s a w h i m a g a i n . I
d o n ' t t h i n k a n y o n e w a s e v e r a r r e s t e d o n t h a t .
Q. l # i a t — h o w w o u l d y o u d e s c r i b e l i k e a t t h e t i m e o f
t h a t i n c i d e n t o r a t t h e — i n ' 7 2 y o u r p h y s i c a l c o n d i t i o n i n
t e r m s o f . . .
(in')
A F a i r , I g u e s s .
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a n v s p o r t s ?
0. Being able to -- did you ever, did vou engage in
A.
g.
A.
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t h a t t i m e ?
N o , n o , s i r . I d o n ' t . I d i d i n h i g h s c h o o l .
W h a t d i d y o u d o ?
I p l a y e d f o o t b a l l . I P l a y e d a t f o o t b a l l .
Y o u d o n ' t — v o u d i d n ' t t h e n e n a a c a i n s p o r t s a t
A. N o , s i r . N o t a t t h a t t i m e .
n. D i d y o u h a v e a n y t h i n g l i k e a t P h y s i c a l T r a i n i n g a t
t h e A c a d e m y w h e r e y o u d i d t h i n g s l i k e r u n n i n g ?
A N o t s i n c e t h e A c a d e m y i n ' 6 9 , n o , s i r .
g. Y o u d i d s o m e o f t h a t a t t h e A c a d e m y ?
A I n ' 6 9 , y e s , s i r .
g. W h a t d i d y o u d o ?
A O h , w e d i d a l o t o f c a l i s t h e n i c s a n d s o m e r u n n i n g .
P r i m a r i l y c a l i s t h e n i c s b u t s o m e r u n n i n g i n ' 6 9 w h e n w e w e n t
t h r o u g h t h e A c a d e m y .
g. W h e n y o u s a v " s o m e r u n n i n g , " w h a t a r e y o u t a l k i n g
a b o u t ? W h a t d i d y o u d o , d o y o u r e m e m b e r ?
A I ' m n o t s u r e , s i r . I k n o w w e w o u l d r u n a m i l e
o c c a s i o n a l l y . I d o n ' t k n o w h o w o f t e n . I d o n ' t r e m e m b e r
h o w o f t e n . B y r u n I m e a n j o g . I t w a s p r i m a r i l y i n t h e g y m
d o i n g t h e c a l i s t h e n i c s . B u t , I d o n ' t r e m e m b e r h o w o f t e n b u t
o c c a s i o n a l l y w e w o u l d j o g s o m e . W e m a y h a v e r u n s o m e s h o r t
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d a s h a s b u t I c a n ' t r e c a l l .
Q. T h e l a s t t i m e y o u d i d t h a t w a s i n t h e i \ c a d e m y ?
A. W e l l , n o t n o w , s i r . I ' v e t r i e d t o g e t i n s h a p e t h i s
y e a r .
Q. U p u n t i l t h i s y e a r i t h a d b e e n s i n c e t h e A c a d e m y
t h a t y o u h a d d o n a a n y r u n n i n g ?
A. I m i g h t h a v e d o n e a l i t t l e b i t o f j o g g i n g l a s t y e a r ,
I b e l i e v e . B u t , t h i s y e a r I k n o w I h a v e . I ' v e r u n s o m e t h i s
y e a r .
Q. N o w , o n t h e f i r s t — t h e " f i r s t " m e a n i n g t h e o n e
t h a t — w h e r e y o u s h o t a t t h e m a n n e a r t h e c l i n i c , —
M R . S H E A : ( I n t e r p o s i n g ) E x c u s e m e j u s t o n e
s e c o n d .
M R . A R N O L D : C e r t a i n l y .
M R . S H E A : I n e e d t o m a k e a c a l l b y 2 : 0 0 .
M R . A R ^ T O L D : L e t ' s t a k e a b r e a k .
R E C E S S
Q. ( B y M r . A r n o l d ) M r . F a d r i c k , y o u ' v e , s i n c e J a n u a r y
1 3 , 1 9 7 2 , y o u ' v e f i r e d y o u r w e a p o n a t o t h e r p e r s o n s t o o , i s
t h a t c o r r e c t ?
M R . S H E A ; W e l l , w e ' l l o b j e c t t o t h a t b u t g o
a h e a d a n d a n s w e r .
A Y e s , s i r .
g. H o w m a n y i n s t a n c e s h a v e t h e r e b e e n ?
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1
Q. Well, think about it and covint.
A. Five or six probably.
0. Can you remember what the one next in time was after
January 13, 1972?
MR. SHEA: Off the record for a minute, Helen.
(Whereupon, a discussion was held off the
record.)
Q. (By Mr. Arnold) I'm not trying to — there are
documents that reflect the details, Mr. Fedrick.
A Yes, sir.
Q. And, the fact that you m.ight remember a detail or
confuse a detail is not a problem but I want to gat some
general ideas about this while we have this deposition. Can
you remember the next incident in time after January 13, 1972?
A. It would probably be, I'm not sure, sir, it's been
so many years now. It would probably be — I was attacked
by a burglary suspect. I don't remember the time. It was in
south Memphis there at — it's north of Crump.
0. This incident was in self-defense, is that correct?
A. Yes, sir. I was substantially injured. The suspect
was wounded and recovered.
A. There's been several, sir. I don't know.
Did you use — did you fire a pistol or a shotgxin?
Yes, sir,
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1
A- Yes, sir. The individual — what brought about the
confrontations of us all, tha individual was attempting to
escape and I blockad his only avenue and he ran over me and
in the struggle he attempted to get my pistol. It discharged
and he was wounded.
Qi All right. You said there were "five or six tim.es."
Tell me cibout another one.
A. Approximately.
Q. All right.
A Wall, v/hen Patrolman David Clark was killed down on
Kansas Street, I fired my weapon then.
Q. When was that?
A It was in '73, sir., I believe. Wait, wait one —
let me think. Yes, sir. That was in '73 sometime,
g. Where was that?
A 1600 htmdred block of Kansas Street. That's where
the man killed five or six people and wounded five or six
others and then killed Patrolman Clark. And, than, I was
probably the second or third — I think second or third car
on the scene. '
Q. And, you fired what weapon at him?
A Shotgvin, shotgun. Yes, sir. But, I, as far as I
know, I didn't hit him.
Q. Pistol?
85G
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1
A.
rifle.
0.
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He was in a house, sir, firing at us with a 30-30
How far away was he?
Yes.
A. So, I was twenty-five yards, twenty yards there.
Fairly close. But, it did —
Q. (Interposing) Shot from behind the car, did you?
A. Wall, sir, I had worked my — I worked my way
around — well, my partner. Lew and I ware riding together
that day. I don't believe Lew ever fired. Lew and myself
and two other officers got to Clark. He was down on the
northeast corner of the house with the whole right side back
of his head gone. The fellow had hit him right over the right
ear with a 30-30. It took the back of his head off. And,
of course, we were hoping -- we knew he was dead, but we were
hoping he wasn't.
And, Lew, my partner, and the other guys picked him
up and tried to get him behind — there's a concrete block
body shop just to the north of the house where he had taken
refuge in. And, Lew and the other guys picked him up and
were trying to get him behind that and we were wide open to
the house. You know, we were right there at it. And, I
backed up behind them and fired my shotgun to keep the guy’s
head down till we could get Clark in behind the concrete bloc3<
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1 housa and than carry him on over to Kansas Straat to an
ambulance.
Q. Do you remember som.e others — some other times that
you've used your weapon? That's been three, I believe, since
you felt there were five or six other times,
fl. No, sir. That's only two.
Q. Two, that's right.
A. The burglar and then whan Clark was killed. Let's
sea, that I recall, yes, that was '73. '74, it's been so
long. I don't recall anything in '74.
In '75 I remember firing my weapon. In '75, yes,
'75. Yes, '75. That was a hold-up man and I cornered him
up, come up on him. Wa were cruising, there'd been a hold-up
and we were cruising and we found soma people that saw him
head in a certain direction. I went — it was raining and I
went in that direction and I found some tracks in a yard and
they disappeared. But, there was a door, some distance away
that opened into a cellar of a big old three story multi-room
house.
And, I got a flashlight. Couldn't find any tracks
in this cellar but it looked like a good place to check and
I got a flashlight, went down the stairs. There was no light
in there other than the dim flashlight I had. The stairs went
down and they circled back three times. Halfway down, you
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1 could sea up under the house where the pillars were holding
— you could sea the bare dirt, the pillars were holding the
house up and the officer with me, he was right behind me, it
looked like we saw some crawl area going up into the dirt
under the house, and there were boards all the way around
part of the house there. There was no light. And, you could
see the cellar was more of a dugout than anything else. It
was big, but ■t- you could see in it fairly wall with this
dim flashlight and I shined the light.
And, I believe this guy was supposed to have been
armed with a short barrel pistol or something, as I recall.
V7e didn't make the scene, you know, of the hold-up, another
Car'did. And, I told the officer with me, I said, "If he's
down here, he probably made these crawl places in the dirt
going up under the house." I said, "Before we crawl up in
this dirt, let me check under these stairs to make sure he's
not there.". That's the only place he could be unless he's up
under the major portion of the house. And, I came downstairs
and as I did, I went to one knee and I peered up under the
stairs. There was a guy up under there.
He had a sixteen inch piece of two by six with two
nails in it and hit me upside the head with it. When he did
that ha grabbed the barrel of the shotgun with his left hand
and it went off. I fell back and he fall on top of me and ths
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1 gun went off again and I pxmped — fired it again. The office
with me came and got the guy off of me and ha died before the
ambulance got there.
He had the serial — he had the food stamps and with
the same serial number on them as the robbery suspect and the
victim did, I understand, identify him as wearing the same
clothes. Blue jeans and a black jacket. And, I believe, I
believe, I believe I was out of the squad car approximately a
month that time. I had a fairly severe concussion.
0, All right. What do you remember after that, '75?
A. Well, in '75, sir, I was working the evenings
and another car received a disturbance call in an apartment
complex and, on arriving at the scene, this other car — well,
you know, of course, I wasn't there. But, on arriving on the
scene this other car came upon this individual shooting at
his sisters with a pistol and, when they triad to intervene
he fired at them. Of course they, he ran back in an
apartment and they called for help.
And, we arrived on the scene, my partner and I, we
were the first car there. There was one officer on one side
of the apartment and another one on the other side — quite
a ways back on the other side. And, my partner and I ran to
the far side. My partner got behind a tree about thirty feet
out from the door and I got up against the brick of the
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1 apartment itself, down from the door and I was in a crouch
type position.
And, the guy was cursing. I could hear him cursing
i inside. He was — I thought cursing at my partner. And,
we had just arrived. The wooden door was open but the screen
door was closed and he would flip that screen door open a
few inches and he did that three or four times. He flipped
the door open a few inches and I was against the wall down
from the door. And, after doing that several times, he
flipped the door open another time and stuck his left hand
out with an automatic pistol in it and shot me four times,
and spxan me around and I retiirned fire and got back to the
corner of the building. There were no windows in the and of
the apartment. I got back to the corner of the apartment and
we got some help down there and whatnot. And, the guy run
upstairs and fired at us several more times from upstairs on
one side and, there were quite a few officers there by then
and several returned fire at him again. He ran to the other
side and fired at the officers from the other side of the
apartment. He fired quite a few shots. Then he shouted out
he wanted to surrender and he threw his pistol out and ha
came out and surrendered.
That was in '76?
Yes, sir. I'm trying to recall — let's see — when
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1
I can't recall any more. Let's see. I don't
believe I'm forgetting anything, sir. I can't recall any
others at this time, though. But, I hope I'm not mistaken
but I can't recall any more.
0. Wall, I told you that we're going to get docum.entary
.evidence.
A. Right. If I've forgotten something I am extremely
sorry but I can't recall.
Qi All right. The unit you're in now, what was that
acronym?
A. Sir?
Q. What was the . . .
MR. SHEA: Tact, T-A-C.
MR. ARNOLD: That's what I was —
A (Interposing) T-A-C-T.
Q. Tact Unit. Have you had — you mentioned some
additional training you've had as you've been a member of
that?
A Yes, sir.
Qi Have you had additional training — did some of that
additional training involve dealing with deadly force?
A. Yes, sir. It was the major part of one day as I
recall.
I went back to the North Precinct.
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1
Q. And, did you notice any differences in that training
and what you had earlier in the Academy, say?
A Oh, yes, sir. Oh, yes, sir. Well, as I said
earlier, sir, there have been several revisions since I came
to the Academy. And, each year we have one week of in-service
training and any revisions are always thoroughly covered each
year in your annual week of in-service training. We have an
entire week every year of in-service training. About one day
of it is firearms and about four days of it's classroom and
any new laws or any new departmental policy changes are very
thoroughly went over.
But, yes, sir, to answer your question, the —
there's a new policy out. It's only been out, I guess, gee,
a few months. And, that was gone over with us vary, very
thoroughly.
Q. You received no additional training specifically
related to the Tact Unit other than going over the policies
and introducing you to the new policies?
A No, sir. No, sir. We had three weeks of training.
Q. I meant training in deadly force.
A Well, we had some firearms training, yes, sir.
Q. But, in terms of the policy about whan to use
deadly force, there has been nothing different taught to you
recall.
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1 in tha Tact Unit than thare is to other officers in tha
force. Is that your understanding?
A, Basically, that's, yes, sir. That's my understandin
Ql I mean, you mentioned I believe when I asked you
earlier in the deposition or we had some mention about it in
the hallway while we took a break, it may have been there that
you mentioned something about some training dealing with
hostages.
A. Yes, sir. Yes, sir.
Ql Is there special kinds of deadly force policies in
this situation that is not taught generally to tha other
officers?
A. Wall, sir, the hostage situations primarily are
negotiation things, primarily.
Ql When you fire your weapon, we've talked about it as
a "deadly force policy." You — you're aware, are you not,
that it very likely could result in the death of whomever
you're firing at?
A.
Q.
A.
Q.
A.
Qt
There's always that possibility, yas, sir.
Now, this shotgun, this was double ought buckshot?
Yes, sir.
In all four of those —
(Interposing) Yes, sir.
And, that's all that you use, is that right?
8 C A
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1 A Yes, sir.
Q- Now, is there
1972, January, 1972, a
shotgtin?
fl. No, sir. Would you clarify that, sir?
Q. You have mentioned, I believe that — well, I've
gone over with you some instances in which you've used
deadly force?
A. Right.
Q. And, it looks to me like all but the one incident
in which — there were two tines you used a shotgun and
the other times you used your service revolver?
A Yes.
&
A.
Q.
Is that right?
Yes.
Now, the first time the suspect came from the
apartment building and was near the clinic, you had your
pistol for that?
A
0.
A
&
A
Right.
Right?
Right. There's one shotgun in each squad car.
All right.
And, of course, until they started the one-man car
system, partial one-man car system several years ago, you had
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1 two officers and one shotgxin. Usually the driver didn't get
the shotgun. Each partners worked it differently, each sat
of partners. If you had a felony in progress type situation
or a possible armed person, you took the shotgun with you when
you exited the squad car. Usually the passenger took the
shotgun unless possibly the passengar might be a brand-new
man or a green man or something.of that nature.
Q. Now, so, the decision to take the shotgun on the
night in question, or the night in January, '72, was that was
your personal decision?
A. Yes, sir. It was —
0. (Interposing) It was — go ahead.
A- The way my partner and I worked it at that time, if
he was .driving, he drove and he worked the radio and the
shotgun was my responsibility. Now, like I say, it differed
from partners to partners. I've had other partners that
liked to do it a different way. But, in a — basically, in
a felony type situation, the passenger usually would exit
the squad car with the shotgun.
0. You have had other felony situations in which you
were involved and the passenger did not take the shotgun. Is
that what you're telling me?
A. I have seen that, yes, sir. But, I don't really
recall with mvself but I have seen that, yes, sir.
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1
A.
Q.
b u t —
0.
A l l r i g h t , s i r .
I s u p p o s e y o u r h e i g h t w o u l d b e t h e s a m e t h e n a n d n o w
Let me ask you about 1972, January, again.
A.
Q.
A.
Q.
A,
( I n t e r p o s i n g ) Y e s , s i r .
W h a t i s t h a t ?
I ' m a b o u t s i x - t w o , s i r .
A n d w h a t w a s y o u r w e i g h t t h e n ?
W e l l , I w e i g h e d m o r e t h e n t h a n I d o n o w . I ' m n o t
r e a l l y s u r e . I w a s h e a v i e r t h e n , t h o u g h .
Q. D o y o u h a v e a n i d e a ?
O h , p r o b a b l y , I m i g h t h a v e w e i g h e d a b o u t t w o - t w e n t y
I d o n ' t r e c a l l r e a l l y , s i r . I w a s h e a v i e r , t h o u g h , I k n o w
t h a t .
Q. N o w , w h e n y o u c a m e u p b e h i n d t h i s s t o l e n c a r , w h a t
d i d y o u o b s e r v e a b o u t t h e p e o p l e i n i t ? Y o u o b s e r v e d t h e r e
w e r e t w o ?
A. A r e w e s t i l l r o l l i n g o r w h a t ?
Q- Y e s . L e t ' s t a l k a b o u t t h e f i r s t t i m e y o u o b s e r v e d i t
A O b s e r v e d t h e t w o p e o p l e i n t h e f r o n t s e a t .
Q. N o w , w h a t e l s e c o u l d y o u t e l l a b o u t t h e m ?
A T h e y h a d o n d a r k c l o t h i n g . T h e y a p p e a r e d t o b e
m a l e b l a c k s .
Q- C o u l d y o u t e l l a n y t h i n g a b o u t s i z e a t t h a t p o i n t ?
8f r ?
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S. Not really, sir. Like I said, it was 11:00 at night
It was on a little side street and what few street lights theri
were, there was also quite a bit of old trees. It's an old
neighborhood. The wind was blowing.
Q. Well, you could see something because you could
tell there were —
R. (Interposing) There were two —
Q. (Continuing) male blacks. I mean how could you
tall — what gave you an indication they were male blacks?
A. The way they moved, the way they sat.
Q, How was that?
A. I don't know, sir.
Q. You were also in a black neighborhood?
A, Predominantly. Mallory Heights, at that time, still
had quite a few blacks but, predominantly, yes, sir.
Q. Well, what might have told you that they were male
blacks?
A. Well, they appeared to be, sir.
Q. But, can you tell me anything about what — how
they appeared? Did they have "fro" style hair styles or
something?
A. It seems that the driver did. I'm not sure. The
passenger might have had a cap or something but I'm not sure.
0. D i d t h e l i g h t f r o m y o u r h e a d l i g h t s g o i n t o t h e c a r
s ; r , s
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1 t o l e t y o u s e e s o m e t h i n g ? Y o u s a i d y o u c o u l d t a l l t h e y h a d
o n d a r k c l o t h i n g e v e n b e f o r e y o u g o t o u t ?
A, T h e r e w a s s o m e l i g h t , y e s , s i r .
0. W a s t h a t b e c a u s e o f t h e h e a d l i g h t s o f y o u r c a r ?
A. I t c o u l d h a v e b e e n , s i r . I ' m n o t r e a l l y s u r e . T h e ^
d i d p a s s i n f r o n t o f u s .
Ql R i g h t . W h e n y o u f i r s t s a w t h e m t h e y p a s s e d i n f r o n t
o f y o u .
A. A n d , w e s t o p p e d a w a y s b a c k u p t h e s t r e e t a n d
l o o k e d o u t o f t h e c a r . T h e r e w a s — w e l l , I ' m n o t s u r e a b o u t
t h a t . I s t a r t e d t o s a y t h e r e w a s n o s t o p s i g n f o r n o r t h a n d
s o u t h t r a f f i c b u t I ' m n o t s u r e . B u t , I k n o w t h e r e w a s s t o p
s i g n s f o r e a s t a n d w e s t t r a f f i c .
Ql W h e r e ?
A A t S h e l b y a n d . . .
Ql G a g e ?
A G a g e . R i g h t .
Q. O k a y . N o w , w h e n y o u t h e n m o v e d o n u p a n d g o t o u t
o f t h e c a r , y o u t a p p e d o n t h e w i n d o w ?
A R i g h t . F r o m t h e r e a r . I w a s a p p r o x i m a t e l y e v e n
w i t h t h e r e a r d o o r m o r e o r l e s s w h e n I t a p p e d o n t h e w i n d o w .
Q. Y o u t a p p e d o n t h e s i d e — o n t h e p a s s e n g e r d o o r
w i n d o w ?
R i g h t .
8 L V . '
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A. I c o u l d s e e a s i l h o u e t t e , s e e t h e s i l h o u e t t e o f t h e
p a s s e n g e r ' s h e a d .
0. I m e a n w h e n y o u t a p p e d , t h e p e r s o n d i d n ' t t u r n a n d
l o o k a t y o u ?
A. N o t t h a t I r e c a l l . N o t t h a t I r e c a l l . I t s c a r e d
t h e m .
0 T h e n , w h a t d i d y o u s e e n e x t ? E d d y M a d i s o n g e t o u t ?
A Y e s .
0 N o w , a t t h a t p o i n t , w h a t d i d y o u o b s e r v e a b o u t
E d d y M a d i s o n ?
A H e w a s a m a l e b l a c k . H e w a s w e a r i n g a l l d a r k
c l o t h i n g . A l l I c o u l d s e e w a s d a r k c l o t h i n g .
Q. W h a t a b o u t h i s s i z e ?
A. I t s e e m s t h a t h e h a d o n a — I ' m n o t s u r e a b o u t
h i s j a c k e t , s e e m s h e h a d o n a l o n g j a c k e t o f s o m e t y p e . A l l
1 s a w w a s t h a t h e w a s a m a l e b l a c k . H e c o m e o u t t h e d o o r o n
t h e o t h e r s i d e — h e c a m e o u t o f i t r x i n n i n g , j u s t l i k e t h a t
( i n d i c a t i n g ) .
Q. Y o u m a d e n o o b s e r v a t i o n a b o u t h i s s i z e ?
A H e w a s t a l l e r t h a n t h e c a r .
0 T a l l e r t h a n t h e t o p o f t h e c a r ?
A R i g h t . A n d h e c a m e o u t — h a c a m e o u t b e n t o v e r
r u n n i n g , t o a d e g r e e , i f y o u k n o w w h a t I m e a n , s i r . H e c a m e
Q. And, did you see the person there at that point?
-51-
1 o u t o f i t s p r i n t i n g , s o t o s p e a k .
2 0- H o w h i g h u p t h a t b u i l d i n g d i d y o u s h o o t ?
3 A. E l e v e n o r t w e l v e f o o t .
4 Q. D i d y o u e v e r g e t a n y o b s e r v a t i o n s b e f o r e y o u s a w —
5 y o u s a w h i m a f t e r h a h a d b e e n s h o t d i d n ' t y o u ?
6 A. Y e s , s i r .
7 0. H e w a s l y i n g o n t h e s t r e e t ?
8 A. Y e s .
9 Ql D i d y o u h a v e a n y o t h e r — I m e a n d i d h e a v e r s t a n d
10 u p e n o u g h f o r y o u t o s e e h i m ?
11 A. N o , s i r . N o , s i r . H e w a s l a y i n g d o w n w h e n I s a w
12 h i m l a t e r .
13 Q. I m e a n b e f o r e t h a t , w h e n h e w a s r u n n i n g . C o u l d
14 y o u t e l l h o w b i g h e w a s ?
15 A. N o t r e a l l y , n o , s i r . I d i d n ' t . L i k e I s a i d , i t
16 w a s j u s t a f e w s e c o n d s b e f o r e h e w e n t a r o u n d t h e c o r n e r
17 t h e r e .
18 M R . A R N O L D : T h a t ' s a l l I h a v e .
19 --------------
20 C R O S S E X A M I N A T I O N
B Y M R . C A L D W E L L :
21
22 Q. L e t m e a s k o n e q u e s t i o n a b o u t t h e T a c t U n i t . A
23 c o u p l e o f w e e k s a g o , i t m a y h a v e b e e n a s l o n g a s a m o n t h a g o ,
24 t h e r e w a s a s i t u a t i o n w h e r e s o m e g u y w a s a r m e d a n d h e w a s
l i Z l
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1 holed up in a room somewhere and it seems like the Tact Unit
handled that. Were you involved in that?
A.
Q.
A.
No, sir.
Okay.
It was probably one of the other shifts. You know
we have three shifts or, I might — I could have been off.
I don't recall that.
CROSS EXA14INATION
BY MR. SHEA:
Q. One question, l-Tr. Fedrick. I believe you have
stated that you spent two tours in Vietnam?
A.
0.
A
Q.
A
Yes, sir.
Were you ever wounded?
Yes, sir. I was wounded.
How many times?
In September — September and December in '66 and
October and November of '68. Four times.
Q. You got shot four times by this — in this incident
you've told us about?
A In '76, yes, sir. Where I got shot with a thirty-
two automatic? Yes, sir. Shot me four times at the same time
MR. SHEA: I believe that's all.
AND FURTHER DEPONENT SAITH NOT.
872
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(SIGNATURE WAIVED)
S T A T E O F T E N N E S S E E
C O U N T Y O F S H E L B Y
S w o r n t o b e f o r e m e t h i s 2 7 t h d a y o f N o v e m b e r , 1 9 7 9
H e l e n K i m b a l l
M Y C O M M I S S I O N E X P I R E S :
O c t o b e r 1 4 , 1 9 8 1
( S e a l )
C E R T I F I C A T E
S T A T E O F T E N N E S S E E
C O U N T Y O F S H E L B Y
I , H e l e n K i m b a l l , C o u r t R e p o r t e r a n d N o t a r y P \ ± > l i c ,
d o h e r e b y c e r t i f y t h a t t h e f o r e g o i n g p r o c e e d i n g s w e r e r e c o r d e d
b y m e i n s h o r t h a n d , a n d t a p e d , a n d s u b s e q u e n t l y r e d u c e d t o
t y p e w r i t i n g i i n d e r m y s u p e r v i s i o n a n d c o n t a i n s a l l t h e
p r o c e e d i n g s p r o p o u n d e d w h i c h o c c u r r e d o n N o v e m b e r 2 7 , 1 9 7 9 .
I f u r t h e r c e r t i f y t h a t I a m n o t r e l a t e d t o n o r
e m p l o y e d b y c o u n s e l o r a n y o f t h e p a r t i e s c o n c e r n e d i n t h i s
c a u s e o f a c t i o n a n d h a v e n o i n t e r e s t i n t h e o u t c o m e o f s a m e .
W I T N E S S M Y H A N D A N D S E A L , y ' T h i s N o v e m l q f e r 2 7 , 1 9 7 9 .
.//
M Y C O M M I S S I O N E X P I R E S :
O c t o b e r 1 4 , 1 9 3 1
( S e a l ) ___________________________
N O T A R Y P U B L I C & C O U R T R E P O R T E R
-54-
P A R T 6 : D e p o s i t i o n o f
W y e m C h a n d l e r i n M a d i s o n
V. M e m p h i s P o l i c e D e p a r t -
m e n t
o
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OP TENNESSEE
WESTERN DIVISION
IRA LEE MADISON, ET AL,
)
PLAINTIFFS, )
)
V S , NO. C/A C-73-21
MEMPHIS POLICE DEPARTMENT,
ET AL,
D E P E N D A N T S . )
The discovery deposition of f̂ifETH CHANDLER,
taken this 19th day of December 1979, at Memphis,
Shelby County, Tennessee, pursuant to Notice and in
accordance with the Federal Rules of Civil Procedure.
All forms and formalities are waived.
Objections to competency, relevancy, and
materiality are reserved, to be disposed of at or before
the hearing of the cause.
Objections to the form of the questions, and
to leading questions are to be made at the time of the
taking of the deposition.
The signature ofthe witness is waived.
D̂ unljaH & ^£azoui
C .ourt czf^Ejjo’iks’Li.
2577 100
526-7516
APPEARANCES
For the Plaintiff, .Ratner, Sugarmon, Lucas .
Henderson, by
MR. G. PHILIP ARNOLD
Attorney-at-Law
MR. WILLIAM E. CALDITELL
Attorney-at-Law
Suite 525
Commerce Title Building
Memphis, Tennessee 38103
For the Defendant, .Office of The City Attorney, by
MR. ARTHUR J. SHFA
Attorney-at-Law
Room 314
125 North Main Street
Memphis, Tennessee 38103
Uyimijall S ’ ŝaioui
Couii £:Ĵ£poxt£.z±
2377 700 .̂ jy\cdn
'Ẑ/272£ii££ ^10^
526-7516
C
c
I N D E X
EXAMINATION
WITNESS PAGE
WYETH CHANDLER
DIRECT EXAMINATION BY: MR. ARNOLD
CROSS EXAMINATION BY: MR. SHEA.
4
38
E X H I B I T S
NO. DESCRIPTION PAGE
1 - STATEMENT 41
3\Lmijajl ŝarout
Coaii <cf̂ l̂ioxt£.Xi.
2577 100 JB /^ .
526-7516
877
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17YETH CHANDLER,
The witness, being first duly sworn, deposed as
follows, to-wit:
DIRECT EXAMINATION
BY MR. ARNOLD!___
Qi State your name and your position, please.
A Wyeth Chandler, Mayor of the City of Memphis,
ft Mr. Chandler, you have talked with Mr. Shea about
the purpose of this deposition and you know the case that
this is about?
A Briefly. I get confused. May I ask you this?
ft Certainly.
A Is this the one where the — is this the one where
the juvenile was in a car that had been stolen, and ran and
was shot?
ft
A
ft
A
ft
A
ft
Yes, that's correct.
Okay.
This happened on January 12, I believe, 1972.
Okay.
And the person's name is Eddie Madison.
Eddie Madison.
The child who was shot.
Now, you had been Mayor how long at that point?
Twelve days, I assume.
F - S
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Q. You took your oath as Mayor January 1, 19 72?
A. 19 72, that's right.
0. Just for the record, I know we've got it in the
other deposition, and everybody who is going to deal with thi
is going to know it, but prior to that time, you were on the
City Council, is that right?
A. For four years.
Cl And, then, prior to that, what did you do?
A- I practiced law.
CL How long had you practiced law up until the time
you became Mayor?
A. Since 1955.
CL You practiced law during the time you were on the
Council, is that correct?
A. Yes.
Cl N o w , Mr. Shea mentioned, and has handed you a copy
of a previous deposition we've taken of you in another case.
That case was Wiley versus the Police Department. We took
that deposition on January 16, 1975.
I want to start by calling your attention to a few
things you said in that deposition, and, then, ask you some
questions about those.
I believe those statements related to perhaps the
facts of this case and that's why I want to call your attentijon
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to them.
First of all, before we get to that, though, in
January of 1972, there were several shooting incidents that
occurred very quickly after you had become Mayor, is that
correct?
A. I’m not sure how quickly, but there were, it seems
like three or four within a two month period, maybe three
within three weeks.
9. All right. And the incident that we are discussing
is one of those.
A Right.
9 And you remember it as being one of those that
occurred in this short period of time?
A I sure do.
9 Who was the Chief of Police at that point?
A I believe Bill Price was the Chief of Police. As
I recall. Chief Lux had retired before I took office, and I'm
not sure whether — I guess Bill Price was Chief of Police.
I'm not sure. We had no Director. We were waiting on the
appointment of a Director. My recollection is that Bill
Price had been appointed Chief of Police.
9 This was your appointment?
A It was.
9 And I re-read this deposition, and what you
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1 remembered in there was, you think he took office the same
day you did, that is, he took on the duties as Chief the
first of January.
A. I think so. It seems like Henry Loeb put Jack
Wallace in charge in December or something like that, but
everybody knew that Bill Price was going to take over when
I went in office, and I assume he did.
0. All right, sir.
MR. SHEA; It might help clear up the record,
but in Chief Lux's deposition, which you've also
taken. Chief Lux went on sort of a terminal leave
sometime in November of 1971. Actually, went off
the payroll as of December list, and Chief Price
v/as the Chief of Police as of the first of January
1972.
Ql And how had you done that? I mean, you had made
a recommendation for him to be Chief prior to taking the
office of Mayor? Is that how that had happened?
A I'm sure I had. I'm sure that everybody knew that
he would be the Chief of Police, and I appointed him Chief
of Police.
& But he was your appointment, as you've said?
A He was my appointment. It's a Civil Service
appointment, but he was serving in that capacity, whether
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1 he was undergoing his Civil Service examinations or anything.
I think maybe they had. At some point, they took tests of
him, Hutchison took them. Price and Crumby. And we appointed
Price. But whether that had been done or whether he was
serving as interim Chief, he was in fact the Chief of the
Police Department at that time.
0. And how long did he continue, then, as Chief?
A. That, I can't tell you. He left the Police Depart
ment to become the head of the MATCOG, and still is head of
the District — Delta District Law Enforcement Operations for
the State of Tennessee, and still serves in that capacity.
But he was Chief at least, I guess, a year and a half or
something like that.
(X He had been on the Force for a long time?
A Twenty-five years.
Ct Prior to becoming Chief.
Mayor Chandler, if you will, I want to call your
attention to certain statements made in that deposition
perhaps as a way of focusing.
MR. ARNOLD; Mr. Shea, if you want to look at
these as I read them — —
Q. The first one is one page twenty, starting with
line six and going through line twelve. Again, we are
reading from the Wiley deposition taken in 1975.
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A. A l l r i g h t .
0- T h e s e n t e n c e t h e r e s a y s : " F o r e x a m p l e , w e h a v e a
s i t u a t i o n t h a t g r e w o u t o f s o m e d e a l w h e r e w e h a d a s t o l e n
c a r s i t u a t i o n i n w h i c h a c h i l d r a n o u t o f a s t o l e n c a r , a n d I
t h i n k t h e c h i l d e n d e d u p m e n t a l l y o f f o r s o m e t h i n g . I d o n ' t
k n o w w h a t . G o t t e n i n a c a r w i t h s o m e o t h e r p e o p l e a n d t h e y
b a i l e d o u t a n d l e f t h i m h o l d i n g t h e b a g , a n d h e r a n a n d s o
f o r t h . " A n d t h e q u e s t i o n w a s : " A n d t h e s h o t ? " A n d y o u
a n s w e r e d : " A n d t h e s h o t . "
A n d I b e l i e v e t h a t t h a t i s t h e s i t u a t i o n t h a t w e
a r e t a l k i n g a b o u t h e r e i n t h i s c a s e .
A. T h e o n l y t h i n g , o f c o u r s e , I ' m n o t s u r e w h e t h e r h e
w a s m e n t a l l y o f f o r w h a t , b u t I r e m e m b e r , a s t h e s t o r y w a s
t o l d t o m e , t h a t w a s — t h a t w a s t h e w a y I u n d e r s t o o d i t .
0. Y e s , s i r . W e w o n ' t t r y t o p r o v e h i s m e n t a l c o n d i t i o i | i
t h r o u g h y o u r t e s t i m o n y .
A. N o , t h a t w o u l d b e h a r d t o d o .
0- T h i s w a s t h e s i t u a t i o n , t h e n . I ' m t r y i n g t o f o c u s
o n s o m e o f t h e s e p r i o r s t a t e m e n t s .
A g a i n , o n p a g e t h i r t y - t w o , b e g i n n i n g w i t h l i n e
e i g h t e e n , y o u m a d e a s t a t e m e n t a n d t h i s w a s p a r t o f a
p r e v i o u s s t a t e m e n t , i f y o u w a n t t o r e a d t h e w h o l e s t a t e m e n t ,
i t ' s f i n e , b u t t h e p a r t t h a t I t h i n k i s r e f e r r i n g t o t h i s
i n c i d e n t s a y s : " A s I s a y , I t h i n k t h e o n e t h i n g w e d i d m o v e
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1 into this thing you will see is the car thief, that just the
car thief alone, not connected to anything else, but just the
car thief, you run him down, you get in the car, and he jumps
out of the car and runs, you can't connect him to burglaries
or robberies, he's nothing but a car thief, which is a felon,
just never strikes me like a burglar or robber or murderer or
rapist or et cetera. You know, he doesn't fit into that
category with me. That's ray personal opinion. I think I —
I think it is in that area that I found some reason to
relax it. That is because, you know, so many kids joy-ride,
I hate to see them put in the same category with the burglar
and robber and rapist and murderer, that type of guy. But
that is just my personal opinion."
Again, I believe, in this situation you were talking
about a change of policy which occurred after the incident
in which the juvenile was shot as he ran from the stolen car.
Is that correct?
A. That's correct.
0. And, finally, on page thirty-eight, line seventeen,
you said; "I think if you have got a kid, you may have a joy
ride, certainly you don't want to kill the kid, you know, but
the time, January 8, 1972, and that is what I thought you
were going to ask me, did I have a policy to shoot all fleeing
felons, I say, no, they followed the policy of the State Law.
-10- 881
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1 A n d i f I m a y s t o p r e a d i n g a l t h o u g h t h a t ' s i n t h e m i d d l e o f
a s e n t e n c e . A g a i n , y o u w e r e r e f e r r i n g t h e r e t o t h e g e n e r a l
p o l i c y , b u t s o m e d i f f e r e n t f e e l i n g s y o u h a d a b o u t t h e s i t u a t i ( | ) n
o f a k i d j o y r i d i n g i n a s t o l e n c a r , i s t h a t c o r r e c t ?
A Y e s . T h e S t a t e L a w , i n m y o p i n i o n , s a i d t h e y c o u l d
s h o o t f l e e i n g f e l o n s , a n d w e b e g a n t o r e l a x t h a t i n c e r t a i n
a r e a s , n o t o n l y j o y r i d e r s , b u t p r i m a r i l y e m b e z z l e r s , f r a u d
p e o p l e a n d s o f o r t h . I t m a y b e a f e l o n y , b u t I d i d n ' t l o o k
o n i t a s n e c e s s a r y t o s h o o t t h e m i f t h e y w e r e a b o u t t o e s c a p e
Q. N o w , a t t h e t i m e o f t h i s i n c i d e n t , J a n u a r y 1 2 , 1 9 7 2 ,
a g a i n , w e ' r e g o i n g b a c k a l o n g t i m e i n y o u r h i s t o r y a s M a y o r ,
i f y o u w o u l d , I k n o w y o u ' v e j u s t m a d e m e n t i o n t o i t , b u t
t e l l m e i n a s c o m p l e t e t e r m s a s p o s s i b l e w h a t y o u u n d e r s t o o d
t h e p o l i c y o f t h e P o l i c e D e p a r t m e n t t o w a r d s h o o t i n g — t h e
u s e o f d e a d l y f o r c e , w h a t y o u u n d e r s t o o d t h a t t o b e .
A W e l l , I u n d e r s t o o d i t t o b e , a s f a r a s I k n e w i t , I ' < ^
o n l y b e e n i n o f f i c e f o r t w e l v e d a y s , b u t I h a d b e e n o n t h e
C o u n c i l a n d I h a d s o m e k n o w l e d g e , n o t t o t a l k n o w l e d g e , o f t h e
P o l i c e D e p a r t m e n t , m y b e l i e f , i t i s n o w , t h a t i t w a s t h e i r
p o l i c y t h a t y o u d i d e v e r y t h i n g w i t h i n h u m a n p o w e r t o c a p t u r e
a f l e e i n g f e l o n w i t h o u t t h e u s e o f d e a d l y f o r c e . B u t i f i t
b e c a m e a p p a r e n t t o y o u t h a t a f l e e i n g f e l o n w o u l d e s c a p e , i f
n o t a p p r e h e n d e d b y t h e u s e o f f i r e a r m s , t h e r e w a s a p o l i c y
o f t h e P o l i c e D e p a r t m e n t t o u s e f i r e a r m s .
8 8 5 _
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1 0. A n d , t h e n , o f c o u r s e , i n a d d i t i o n t o t h a t , t h e
p o l i c e c o u l d u s e f i r e a r m s i n s e l f d e f e n s e o r d e f e n d i n g a n o t h e j ^ '
o f f i c e r ?
A S e l f d e f e n s e , t h e p r o t e c t i n g o f s o m e o n e e l s e a n d
s o f o r t h .
0- W h e n t h i s — o r w h e n t h e s e i n s t a n c e s o c c u r r e d s h o r t l ' ^
a f t e r y o u b e c a m e M a y o r , y o u t o o k i t u p o n y o u r s e l f t o i n v e s t i
g a t e t h e D e p a r t m e n t ' s p o l i c i e s a n d s h o r t l y t h e r e a f t e r a n e w
s t a t e m e n t w a s i s s u e d , i s t h a t r i g h t ?
A T h a t ' 3 t r u e .
0. N o w , a g a i n , I k n o w I ' m a s k i n g y o u t o g o b a c k a l o n g
w a y , b u t w h a t d i d y o u d o i n t h a t i n v e s t i g a t i o n ? Y o u m u s t
h a v e c a l l e d C h i e f P r i c e i n a n d y o u m u s t h a v e t a l k e d t o s o m e
o t h e r p e o p l e o n t h e F o r c e ?
A I c a n ' t r e m e m b e r w h o a l l I t a l k e d ! , t o . I ' m n o t e v e n
— i f i t ' s a p o l i c e m a t t e r , i n a l l l i k e l i h o o d I r e a d t h e f i l e i i
a s m u c h a s I c o u l d a n d d i s c u s s e d t h e c a s e s b r i e f l y .
Q. W h e n y o u s a y " t h e f i l e s " a r e y o u t a l k i n g a b o u t t h e
t h r e e o r f o u r i n c i d e n t s ?
A T h e , t h r e e o r f o u r i n c i d e n t s w h e r e t h e y w e r e s h o t a t ,
y e s . T h e f i r s t t i m e I r e m e m b e r c o n v e r s i n g a b o u t t h i s p a r t i c u l a r
i n c i d e n t , I b e l i e v e i t w a s a n i n c i d e n t i n v o l v i n g a s i t u a t i o n
t h a t I d o n ' t b e l i e v e t h e p o l i c e h a d a n y f a u l t i n , a n d t h a t
w a s w h e r e t h e y s h o t a m a n w h e r e t h e P e p s i C o l a d r i v e r h a d
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1 c a l l e d a n d s a i d t h a t - - I g u e s s , h a d a n a r m e d r o b b e r y a n d h e
h a d l i e d . A n d a y o u n g s t e r , I b e l i e v e a y o u n g b o y w a s s h o t .
I ' m n o t s u r e h o w y o u n g h e w a s . B u t t h o s e t w o s t i c k o u t i n
m y m i n d . A n d i t w a s s i m p l y m y f e e l i n g t h a t i n c a s e s o f j o y
r i d i n g o r i n c a s e s o f f e l o n i e s t h a t d o n ' t i n v o l v e p h y s i c a l
f o r c e , t h r e a t o f l i f e , r a p e , s o f o r t h , t h o s e — t h r e a t o f
p e r s o n a l h a r m , o r t h r e a t o f — o r c e r t a i n l y o f s t e a l i n g
a n y t h i n g o r b e i n g i n a h o u s e o r p l a c e o f b u s i n e s s w h e r e
o t h e r s m i g h t b e , a n d , t h e r e f o r e , p o s s i b l e v i o l e n c e c o u l d
o c c u r , t h a t w e o u g h t n o t t o u s e f i r e a r m s a t a l l . N o w , t h a t
w a s j u s t m y t h o u g h t s a b o u t i t a n d I e x p r e s s e d t h e m a n d f e l t
t h a t w a y a b o u t i t . I k n o w t h a t i t w a s n o t t i e d i n t o t h e
S t a t e L a w , a n d I k n e w t h a t , y o u k n o w . S t a t e L a w o v e r r u l e d
a n y t h i n g , a n y p o l i c y I m i g h t h a v e , b u t t h a t w a s t h e p o l i c y
I f e l t w o u l d b e b e s t .
Q. N o w , d i d y o u u n d e r s t a n d t h a t i n t h e P o l i c e D e p a r t m e n t ,
i n t h e p a s t , t h a t i s , p r i o r t o t h i s p e r i o d o f t i m e i n J a n u a r y
o f ' 7 2 , t h a t p o l i c e o f f i c e r s h a d u t i l i z e d d e a d l y f o r c e a g a i n s t
a n y s i t u a t i o n w h e r e a f e l o n y m i g h t h a v e b e e n c o m m i t t e d ?
A W e l l , I d i d n ' t k n o w w h e t h e r t h e y h a d o r n o t . I
r e a l l y d i d n ' t m a k e a n y s t u d y o f w h e t h e r , f o r e x a m p l e , t h e y ' d
e v e r s h o t a n e m b e z z l e r w h o w a s f l e e i n g . T h e p r i m a r y t h i n g
I w a s — i t w a s j u s t s o m e t h i n g t h a t w a s b r o u g h t u p i n t h e
d i s c u s s i o n a b o u t t h e F l e e i n g F e l o n y S t a t u t e . I t w a s j u s t m y
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1 f e e l i n g t h a t a s y o u d o n ' t a p p l y i t t o a e m b e z z l e r , t h a t i t
s h o u l d b e i n s o m e w a y , t h e r e f o r e , l i m i t e d . A s f a r a s I k n e w ,
t h e y h a d n e v e r s h o t a n e m b e z z l e r . T o m y k n o w l e d g e , t h e y h a d
n o t . I a s s u m e t h e y h a d n o t . B u t i f y o u h a d t h e r i g h t t o
a n d d i d n ' t , a s a p o l i c y , t h e n w e o u g h t t o e x t e n d t h a t s a m e
r i g h t t o t h e j u v e n i l e i n a j o y r i d i n g s i t u a t i o n . T h a t w a s
b a s i c a l l y t h e i d e a t h a t I — s o , w e l i s t e d t h i n g s t h a t w e
f e l t y o u c o u l d u s e i t f o r a n d l e f t o f f t h o s e t h i n g s w h i c h
w e , e v e n t h o u g h y o u m a y b e a b l e t o u n d e r t h e S t a t e L a w , t h a t
I d i d n ' t f e e l t h a t y o u s h o u l d .
& I n f a c t , w a s n ' t i t c l e a r t o y o u t h a t t h e y w o u l d
n o t h a v e u s e d f o r c e a g a i n s t s a y a n e m b e z z l e r ?
A I w o u l d a s s u m e t h e y w o u l d n o t . B u t i n a s m u c h a s
t h e y w o u l d n ' t d o i t a g a i n s t a n e m b e z z l e r , I j u s t s i m p l y p u t
t h e c h i l d , f l e e i n g f e l o n o r j o y r i d e r i n t h e s a m e c a t e g o r y .
0. T h a t ' s e x t e n d t h a t p r i n c i p l e t o s o m e o t h e r f e l o n i e s ?
A T h a t i d e a , r i g h t .
& A n d I a s s u m e i n f a c t t h a t t h e r e a r e a l o t o f o t h e r
f e l o n i e s t h a t y o u k n e w t h e n t h a t t h e p o l i c e s i m p l y w o u l d n o t
u s e f o r c e t o c a p t u r e s u c h p e r s o n s , a n d t h a t w o u l d b e i n
n o n - v i o l e n t s i t u a t i o n s ?
A W e l l , n o t n e c e s s a r i l y n o n - v i o l e n t . I d i d n ' t n o t —
w a s r e q u e s t e d a n d d i d n o t r e m o v e i t , f o r e x a m p l e , I d o n ' t
t h i n k f r o m b u r g l a r i e s , w h i c h a r e n o t n e c e s s a r i l y v i o l e n t , b u t
- 1 4 -
1 t h a t I h a v e c o n s i d e r e d a l w a y s a s t h e t y p e o f t h i n g s t h a t c a n
2 lead to violence.
3 & W e l l , n o w , I l o o k e d t h r o u g h t h e C o d e , t h e T e n n e s s e e
4 C o d e t h i s m o r n i n g , j u s t l o o k i n g a t a l o t o f d i f f e r e n t
5 f e l o n i e s , t r y i n g t o f i g u r e o u t o n e s t h a t I t h o u g h t w e r e
0 in effect in 1972, and I found a lot that it appears to me
7 t h e d e p a r t m e n t h a s n e v e r u s e d f o r c e w h e n t r y i n g t o a p p r e h e n d
8 such a person. I found one like in TCA 39-1907, it's-a
9 f e l o n y t o i s s u e f a l s e s t o c k c e r t i f i c a t e s . W e c a n a s s u m e
10 t h e y ' v e n e v e r u s e d f o r c e i n a s i t u a t i o n l i k e t h a t ?
11 A A s f a r a s I k n o w , t h e y h a v e n e v e r — I w o u l d a s s u m e
12 so.
13 0- And, in fact, when you were having this discussion,
14 w a s n ' t t h a t t h e g e n e r a l f l a v o r o f t h e ' d i s c u s s i o n , t h a t i t w a s
15 i n c e r t a i n s i t u a t i o n s , f e l o n y s i t u a t i o n s , i t w a s u s e d a n d
18 i n o t h e r s i t j u s t w a s n o t u s e d ?
17 A- T h a t ' s w h y t h e e n d r e s u l t , I b e l i e v e , w a s a p u b l i c a -
18 t i o n o f t h o s e f e l o n i e s t h a t I f e l t y o u s h o u l d u s e i t .
19 0- N o w , p r i o r t o t h a t p u b l i c a t i o n t h a t c a m e o u t a s
20 a r e s u l t o f t h i s m e e t i n g o r m e e t i n g s — w a s t h e r e m o r e t h a n
21 one meeting?
22 A- P r o b a b l y s o .
23 0 - i i a d t h e r e e v e r b e e n a - d e l i n e a t i o n o f w h i c h f e l o n i e s
24 t h e d e p a r t m e n t , i n t h o s e s i t u a t i o n s w h e r e t h e d e p a r t m e n t w o u l d
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1 u s e f o r c e a n d a g a i n s t w h i c h t h e y w o u l d n o t u s e f o r c e ?
A. N o t t h a t I k n o w o f i n w r i t t e n f o r m . I ' m s u r e t h a t
i n u n w r i t t e n f o r m i t w a s o b v i o u s t h a t t h e y w o u l d n o t , y o u
k n o w , i n t h e F r a u d a n d D o c u m e n t S q u a d f o r a g u y t h a t h a d
k i t e d a c h e c k . I d o n ' t k n o w t h a t t h e y e v e r u s e d f o r c e o r
d i d n ' t u s e f o r c e , b u t w h a t e v e r t h e p o l i c y w a s , i t w a s a n
u n w r i t t e n p o l i c y , a s f a r a s I k n o w .
Qi A n d i t w a s t h e p o l i c y , s a y , i n t h a t s i t u a t i o n o r
s i m i l a r s i t u a t i o n s , e v e n t h o u g h i t m i g h t h a v e b e e n a f e l o n y ,
t h e y w o u l d n ' t u s e f o r c e t o a p p r e h e n d a p e r s o n f l e e i n g ?
A. A s f a r a s I k n o w , t h a t w a s a g e n e r a l p o l i c y , u n w r i t
t e n t h a t i t m a y h a v e b e e n . N o w , h a d t h e y u s e d i t , y o u k n o w ,
I d o n ' t k n o w w h a t t h e s t a t u s o f i t w o u l d h a v e b e e n a s f a r
a s w h e t h e r t h e p o l i c e m a n w o u l d h a v e b e e n f i r e d o r n o t . I f
h e w a s a f t e r a m a n t h a t h a d w r i t t e n 5 , 0 0 0 c h e c k s a l l o v e r t h e
c o u n t r y a n d t h e y g u y h a s w h e e l e d o f f a n d a b o u t t o g e t a w a y ,
w h e t h e r t h e y u s e d i t o r n o t , I d o n ' t k n o w . I f t h e y d i d u s e
i t , I d o n ' t k n o w w h e t h e r t h e p o l i c y o f t h e P o l i c e F o r c e w o u l d
b e t o f i r e t h e g u y o r g i v e h i m a d e c o r a t i o n .
0. A n d t h e r e a s o n y o u d o n ' t k n o w t h a t i s b e c a u s e i t w a s
n o t a w r i t t e n p o l i c y , i s t h a t r i g h t ?
A. A s f a r a s I k n o w , i t w a s n e v e r w r i t t e n .
0. A s f a r a s I k n o w , M r . M a y o r , y o u ' r e g o i n g t o b e t h e
o n l y p e r s o n w e a s k a b o u t t h i s m e e t i n g o r t h e s e m e e t i n g s .
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1 w h i c h e v e r i t w a s . W e ' r e n o t g o i n g t o t r y t o d e p o s e s o m e o f
t h e o t h e r f o l k s , I t h i n k , b u t i f y o u c a n , c a n y o u r e m e m b e r
a n y b o d y e l s e b e s i d e s C h i e f P r i c e w h o w a s t h e r e ?
A. I r e a l l y c a n ' t . I t m i g h t h a v e b e e n B i l l C r u m b y . I
d o n ' t k n o w . B i l l C r u m b y , o r H u t c h i s o n , o r s o m e b o d y l i k e t h a t
t h e r e . I p r o b a b l y w o u l d h a v e d i s c u s s e d i t w i t h t h e m a t o n e
t i m e o r a n o t h e r , h e r e a n d t h e r e . I d i d n ' t h a v e a m e e t i n g o n
i t . I j u s t s i m p l y r e a d t h e r e p o r t , p r o b a b l y c a l l e d h i m a n d
s a i d — o r t h e m a n d s a i d " I j u s t w a n t t o t e l l y o u t h a t I
d o n ' t t h i n k i t ' s a g o o d i d e a t o s h o o t y o u n g s t e r s w h o a r e
j o y r i d e r s i f t h e r e ' s n o t h i n g e l s e i n v o l v e d . " N o w , a s I
s a y , I d o n ' t k n o w w h a t y o u r p o l i c y i s o n i t , a n d I ' m s u r e ,
f o r e x a m p l e , c a r t h i e v e s , g r a n d l a r c e n i s t , t h a t i s a m a n w h o
h a s b e e n a n h a b i t u a l c a r — s t e e l s a c a r , t a k e s i t t o S t .
L o u i s , s e l l s i t a n d s o f o r t h , i s g u i l t y o f g r a n d l a r c e n y ,
t h a t m i g h t b e s o m e t h i n g t h a t t h e y h a v e a l w a y s h a d a p o l i c y
t h e y w o u l d p r o b a b l y s h o o t h i m a s a f e l o n a s q u i c k l y a s t h e y ' d
s h o o t a b u r g l a r .
O n t h e o t h e r h a n d , c h i l d r e n , j o y r i d i n g , n o t d o i n g
i t f o r a l i v e l i h o o d , a n d c e r t a i n l y a r e n o t t r y i n g t o , y o u
k n o w , n o t u s i n g i t f o r r o b b e r y o r w h a t e v e r , I l o o k e d o n t h e m
d i f f e r e n t l y . I j u s t t o l d t h e m t h a t ' s m y o p i n i o n o f i t , a n d
t h e y e n d e d u p g o i n g a n d g e t t i n g , I g u e s s , K r e l s t e i n o r
s o m e b o d y t o d r a f t t h e m u p s o m e t h i n g a n d p u t t h a t i n t o w r i t i n g
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1 " T h e s e a r e t h e f e l o n i e s t h a t t h e M a y o r t h i n k s w e o u g h t t o d o
s o m e t h i n g a b o u t . "
0. I h a v e a c o p y o f a d o c t i m e n t I w a n t t o s h o w y o u . I t ' 4
a J a n u a r y 19, 1972 d o c u m e n t t h a t w e n t o u t o v e r y o u r n a m e a n d
I b e l i e v e i t w a s a p r e s s r e l e a s e o r a p u b l i c r e l a t i o n s
r e l e a s e .
A. I d i d n ' t k n o w I m a d e a n y o f t h o s e d u r i n g t h e w h o l e
t i m e I w a s i n . I n e v e r h a v e h a d a n y b o d y t o r e l e a s e t h e m
b u t m e .
Qi W e l l , I ' l l a s k y o u w h a t i t i s , t h e n , a n d l e t y o u
c a t e g o r i z e i t .
A. O k a y .
Q. I t w a s u t i l i z e d i n a n o t h e r c a s e a n d t h a t ' s w h a t t h e
n u m b e r a t t h e b o t t o m r e f e r s t o , b u t e v e r y t h i n g e l s e p u r p o r t s
t o b e s o m e t h i n g t h a t c a m e f r o m y o u r o f f i c e .
( P a s s e d t o w i t n e s s f o r i n s p e c t i o n . )
A. I d o n ' t k n o w w h e r e t h i s c a m e f r o m . I g u e s s i t w a s
a s t a t e m e n t t h a t I ' m s u p p o s e d t o h a v e m a d e t o r e p o r t e r s ?
Qi Y e s , s i r . T h a t ' s w h a t w e u n d e r s t a n d i t t o b e .
M R . S H E A : I ' J h a t c a s e w a s t h a t u s e d i n ?
M R . A R N O L D : I t w a s u s e d i n t h e W i l e y c a s e .
Q. N o w , I h a v e n ' t m a r k e d t h e p l a c e i n t h e p r e v i o u s
d e p o s i t i o n i n w h i c h y o u r e f e r r e d t o t h a t .
A I j u s t h a v e n o r e c o l l e c t i o n o f i t a t a l l .
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0. O n p a g e s i x o f t h e W i l e y d e p o s i t i o n y o u s t a t e d ;
" D u r i n g a s h o r t p e r i o d o f t i m e , I t h i n k t h e r e w e r e f o u r
s h o o t i n g s . " I ' m s o r r y . I s t a r t e d a t l i n e f o u r . " T h r e e
r e s u l t i n g i n d e a t h a n d o n e j u s t a w o u n d i n g . A n d a s a r e s u l t
o f t h a t a n d b e c a u s e I w a s c a l l e d o u t t o t h e m e e t i n g w i t h t h e
N A A C P p e o p l e a n d o t h e r l e a d e r s i n t h e c i t y , s e e m s l i k e w e
f o r m u l a t e d s o m e k i n d o f s t a t e m e n t t h a t m a d e n a t i o n a l h e a d
l i n e s . I k n o w t h e y c a m e i n h e r e f r o m A t l a n t a t o t a p e i t o n
C B S . "
A n o t h e r p l a c e h e r e i n t h e d e p o s i t i o n —
A. ( I n t e r p o s i n g ) O b v i o u s l y , t h i s w a s n o t t h a t s t a t e m e n t
0. A l l r i g h t . Y o u d o n ' t r e m e m b e r r e l e a s i n g s u c h a
s t a t e m e n t t h e n a s t h a t o n e t h a t I ' v e s h o w e d y o u ?
A T h i s o n e h e r e ( i n d i c a t i n g ) ? I p r o b a b l y s a i d t h o s e
w o r d s . I d i d n ' t r e l e a s e a n y s t a t e m e n t t h a t I k n o w o f . T h i s
a p p e a r s t o m e t o b e s o m e t h i n g w h e r e t h e y ' v e c o m e u p t o m e
i n t h e m o r n i n g , a f t e r a p p a r e n t l y o n e o f t h e s e s h o o t i n g s t h e
n i g h t b e f o r e , a n d s a i d " T e l l u s w h a t y o u t h i n k a b o u t t h e
s h o o t i n g . " A t t h a t p o i n t , a l l I k n e w w a s t h a t w e h a d a
s i t u a t i o n i n v o l v i n g a f l e e i n g f e l o n . I m a y n o t h a v e k n o w n
a n y m o r e a b o u t i t t h a n t h a t . A n d t h a t P o l i c e D e p a r t m e n t
p o l i c y a t t h a t t i m e w a s t o s h o o t f l e e i n g f e l o n s , t h a t t h e y
h a d s h o t h i m . T h a t ' s b a s i c a l l y a l l I k n o w a b o u t t h a t . T h a t ' s
w h a t i t a p p e a r s . I d o n ' t r e m e m b e r a n y t h i n g , r e a l l y .
o
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1 0. A l l r i g h t . T h e l a s t p a r a g r a p h i n t h a t d o c u m e n t w h i c l j i
I s h o w e d y o u s a y s : " I p l a n t o g e t w i t h C h i e f P r i c e a n d
m e m b e r s o f o u r L e g a l S t a f f a n d d r a w u p s o m e i n t e r i m g u i d e
l i n e s s u b j e c t t o c o m m e n t a n d r e v i e w a s s o o n a s p o s s i b l e . "
D i d y o u , i n a d d i t i o n t o h a v i n g C h i e f P r i c e a n d
p e r h a p s o t h e r p o l i c e m e n o r m e m b e r s o f t h e P o l i c e D e p a r t m e n t
p r e s e n t w i t h y o u , w a s t h e r e s o m e b o d y f r o m t h e L e g a l S t a f f
t h e r e ?
A. T h e r e m a y w e l l h a v e b e e n . P r o b a b l y K r e l s t e i n . I
t h i n k h e w a s w o r k i n g o v e r t h e r e t h e n . I ' m n o t s u r e .
0
Q. Y o u d o n ' t r e m e m b e r s p e c i f i c a l l y ?
A. I d o n ' t r e m e m b e r . ( P a u s e ) P r o b a b l y . W a s K r e l s t e i n
w o r k i n g t h e n ?
M R . C A L D W E L L : Y e s .
A I j u s t f i g u r e d h e w a s . I ' m s u r e K r e l s t e i n w a s i n
o n t h e s e m e e t i n g s . H e p r o b a b l y d r a f t e d t h e f i n a l s t a t e m e n t .
0. I w o u l d l i k e y o u t o l o o k a t t h i s d o c u m e n t , i t ' s
l a b e l e d " T o A l l P e r s o n n e l F i e l d a n d S t a f f O p e r a t i o n s " f r o m
C h i e f B i l l P r i c e , d a t e d J a n u a r y 2 0 , 1 9 7 2 .
( P a s s e d t o w i t n e s s f o r i n s p e c t i o n . )
A A l l r i g h t . A l l r i g h t . I ' m s u r e t h i s i s p r o b a b l y
t h e s t a t e m e n t , t h e i n t e r i m s t a t e m e n t o r w h a t e v e r t h a t g r e w
o u t o f t h i s e a r l i e r s t a t e m e n t w h i c h g r e w o u t o f o u r c o n v e r s a
t i o n s w i t h P r i c e a n d K r e l s t e i n .
a9-i
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1 N o w , d i d y o u — y o u ' v e s e e n t h i s o n e b e f o r e , h a v e n ' t
y o u ?
A. T h i s s t a t e n e n t h e r e , y e s .
0. T h e l a s t o n e I j u s t h a n d e d y o u .
A. R i g h t . I ' n s u r e I h a v e .
M R . A R N O L D : I ' d l i k e t o m a k e t h a t E x h i b i t 1
t o y o u r d e p o s i t i o n .
( I T h e r e u p o n , s a i d S T A T E M E N T w a s m a r k e d E X H I B I T
1.)
Qt N o w , t h i s i s d a t e d J a n u a r y 2 0 , a n d o n p a g e t h r e e o f
»
t h a t i t s a y s ; " F i r e a r m s — " T h i s i s p a r a g r a p h R o m a n n u m e r a l
V : " F i r e a r m s s h a l l n o t b e d i s c h a r g e d : A . A s w a r n i n g s h o t s ;
o r B . B r o m a m o v i n g v e h i c l e o r t o s t o p a f l e e i n g v e h i c l e
e x c e p t a s p r o v i d e d f o r i n P a r a g r a p h I V . " A n d t h a t l a s t
s t a t e m e n t I r e a d , V - B , r e f l e c t s t h e c h a n g e i n y o u r r : - i n
p o l i c y t h a t r e s u l t e d f r o m t h e s e m e e t i n g s , i s t h a t c o r r e c t ?
A N o , I d o n ' t t h i n k s o . T h a t ' s o n e o f t h e c h a n g e s .
I ' m n o t s u r e a b o u t w a r n i n g s h o t s . I t h i n k K r e l s t e i n h a d b e e n
a g a i n s t w a r n i n g s h o t s a n d h e b r o u g h t t h a t u p .
T h e r e a l c h a n g e i n t h e p o l i c y , a s I r e c o l l e c t i t t o
b e , f i r s t o f a l l , i n w r i t i n g d o w n t h o s e t h i n g s u n d e r A a n d B ,
a n d l i s t i n g t h o s e t h i n g s u n d e r I I , b y l i s t i n g . I n o t h e r w o r d s
b y s a y i n g , r a t h e r t h a n " f l e e i n g f e l o n s , " y o u l i s t t h e f e l o n i e s
t h a t , i f y o u c a n ' t a p p r e h e n d a g u y , y o u l i s t a l l t h e s e t h i n g s
-21-
1 t h a t y o u c a n s h o o t , y o u c a n u s e f i r e a r n s , y o u c a n u s e d e a d l y
2 f o r c e t o a p p r e h e n d h i m . A l s o , I t h i n k f o r t h e f i r s t t i m e
3 t h e y h a d t h i s r e p o r t t o b e m a d e a n d s o f o r t h .
4 0. Yes. I believe Chief Lux perhaps had prohibited in
5 1 9 6 9 t h e u s e o f w a r n i n g s h o t s .
6 A. T h a t m a y b e . T h a t w a s s o m e t h i n g t h a t w a s d i s c u s s e d .
7 & I n S e c t i o n I V - B - 2 , t h e a u t o t h e f t h a s b e e n e l i m i n a t e ^
8 f r o m t h a t l i s t .
9 A G r a n d l a r c e n y h a s n o t b e e n e l i m i n a t e d . I d o n ' t
10 k n o w w h e t h e r a u t o t h e f t i s l i s t e d u n d e r g r a n d l a r c e n y u n d e r
11 t h e l a w o r n o t . I c a n ' t t e l l y o u . I d o n ' t t h i n k , a s I
12 r e m e m b e r , t h a t a u t o t h e f t p e r s e w a s d i s c u s s e d a s n e e d i n g t o
13 b e e l i m i n a t e d . I t w a s t h e j o y r i d e r s t h a t b o t h e r e d m e , n o t
14 t h e a u t o t h i e v e s . I t r i e d t o m a k e t h a t c l e a r e a r l i e r . I
15 d o n ' t c o n s i d e r a p r o f e s s i o n a l a u t o t h i e f a s a n y l e s s t h e t y p e
16 o f g u y t h a t I w o u l d w a n t t o a p p r e h e n d p e r s o n a l l y t h a n a g u y
17 w h o w o u l d s n e a k i n t o J o e ' s B a r b e c u e a n d r a n s a c k h i s b u i l d i n g ,
18 s t e e l h i s m o n e y . O n e o f t h e a r g u m e n t s w a s t o e l i m i n a t e
19 b u r g l a r y a n d t h i s t y p e t h i n g , s o m e k i n d s o f b u r g l a r y , w h i c h
20 I d i d n o t d o . I d i d n o t t h i n k i t s h o u l d b e d o n e . B u t I
21 d o n ' t r e m e m b e r d i s c u s s i n g a u t o t h e f t a s s u c h . I d o r e m e m b e r
22 d i s c u s s i n g c h i l d r e n j o y r i d i n g .
23 0. N o w , y o u u n d e r s t a n d t h e n t h a t t h i s d o c u m e n t w e ' v e
24 l a b e l e d a s E x h i b i t 1 e x c l u d e s t h e s i t u a t i o n w h e r e a p e r s o n
8 9 ^
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1 i s i n a s t o l e n c a r a n d i s j o y r i d i n g i n i t a n d i s n o t t h r e a t
e n i n g a n y b o d y — a n y b o d y e l s e , i s t h a t r i g h t ?
A. T h a t ' s w h a t I t h o u g h t t h e p o l i c y s h o u l d b e , a n d
s t i l l d o .
& I n f a c t , t h a t ' s w h a t t h e p o l i c y b e c a m e a f t e r
J a n u a r y 2 0 , 1 9 7 2 , i s n ' t i t ?
Pu V 7 e l l , a s f a r a s I w a s c o n c e r n e d t h a t ' s w h a t t h e
p o l i c y b e c a m e . Y o u t e l l m e . I w a n t e d t h a t t o b e t h e
p o l i c y . T h e n t h e y v’^ i n t e d t h i s u p . I f e l t i t i n c o r p o r a t e d
i t i n t h e r e . V l h e t h e r t h e o t h e r s d o o r n o t , I d o n ' t k n o w .
B u t I d i d n ' t w a n t j o y r i d e r s s h o t , e s p e c i a l l y p a s s e n g e r s .
0. W e l l , n o w , y o u ' v e b e e n M a y o r c o n t i n u o u s l y s i n c e
t h a t t i m e .
A. R i g h t .
0. A n d t h e r e h a s n ' t b e e n a n o t h e r e x a m p l e s i n c e J a n u a r y
1 2 , 1 9 7 2 o f a y o u n g c h i l d b e i n g s h o t j o y r i d i n g ?
A. N o t a s f a r a s I k n o w . I ' m g l a d i t ' s t r u e .
Ql A n d t h a t ' s a d i r e c t r e s u l t o f y o u r i n v o l v e m e n t a t
t h i s s t a g e ?
A I h o p e s o .
Ql A n d t h a t i n v o l v e m e n t c a m e a b o u t a s a r e s u l t o f t h e
s h o o t i n g a n d k i l l i n g o f E d d i e M a d i s o n , d i d n ' t i t ?
A T h a t ' s r i g h t .
Ql N o w , w h e n y o u w e r e d i s c u s s i n g t h i s , y o u m e t s o m e t i m e
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1 around the 19th or 20th or sonewhere before the 20th?
A. Quite a long while, yes. Two or three hours.
0. You must have discussed law enforcement objectives,
what they were -- what you thought the Police Department oughj;
to be trying to do and they, in turn, told you what would be
problems if policies were changed. Is that how it went?
A. Well, in this particular instance there was no
great discussion about pros and cons. I don't really feel
that the — I'm not sure how the hierarchy of the Police
Department felt. We had a very broad State Law under which
the Police Department operated. In my judgment the policemen
felt secure in the ability to use firearms to apprehend a
fleeing felon, assuming they had exhausted all other ways of
apprehending him, in any felony case. I think that was just
the standard operating procedure, had been, was, and probably
is in many cities to date. All we did was try to say that
we don't do it in certain cases, no matter what the law is.
Now, let's extend that another notch and eliminate the joy
riding. That was basically the idea. I think that's the way
it was perceived by the Police Department.- They perceived
this announcement, the notoriety given to it, the fact that
this came out and didn't list joy riding and all that type of
thing, as eliminating joy riders. And I think basically most
of them probably had never done it. I don't know that it was
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1 b e i n g d o n e a l l t h e t i n e , b u t I ' m d o u b t f u l . I ' m s u r e m a n y a
p o l i c e m a n s a w a j o v r i d e r r u n o f f i n t o t h e d a r k a n d s a i d ,
" O k a y . V 7 e ' l l g e t a r o u n d t o g e t t i n g h i m , t h a t g u y s o m e o t h e r
t i n e . " B u t I ' m n o t s u r e t h a t t h a t w a s — t h a t w a s j u s t t h e i r
o w n p e r s o n a l p o l i c y . I t w a s n o t — I d o n ' t k n o w w h a t t h e y
w e r e t a u g h t w h e n t h e y w e n t t o t h e A c a d e m y a b o u t t h a t t y p e
o f t h i n g o r v ; h a t a n y b o d y t o l d t h e m t o d o , w h a t t h e y w e r e
i n s t r u c t e d t o d o , b u t I ' m s u r e t h a t t h e r e w e r e s o m e p o l i c e m e n
t h a t w o u l d s h o o t a f l e e i n g f e l o n m o r e q u i c k l y t h a n o t h e r s a n d
f e e l , v e r y j u s t i f i e d a n d v e r y h a o p y a b o u t , u n d e r t h e l a w , v e r y
w e l l p r o t e c t e d . I j u s t f e l t t h a t t h a t o u g h t t o b e e l i m i n a t e d
H e s h o u l d n ' t b e g i v e n t h a t o p t i o n o f m a k i n g t h a t d e c i s i o n s o
t h a t g o o d o f f i c e r o r g o o d g u y o f f i c e r s o - a n d - s o V 7 0 u l d l e t t h e
m a n e s c a p e , s a y h e ' s j u s t a j o y r i d e r a n d l e t h i m g o , a n d t h e
o t h e r g u y f e e l i n g h e w a s p r o t e c t e d , h e w a s a f e l o n , h e w a s
a c a r t h i e f , a n d , t h e r e f o r e , w o u l d s h o o t h i m . I j u s t t h i n k
w e o u g h t t o e l i m i n a t e t h a t j u d g m e n t .
0. W e l l , n o w , w e ' v e p r e v i o u s l y d i s c u s s e d t h a t i t w a s
y o u r p e r c e p t i o n t h e n t h a t , s a y i n t h e c a s e o f a n e m b e z z l e r ,
i t w a s k i n d o f a n u n w r i t t e n p o l i c y t h a t f o r c e w a s n o t u s e d
a g a i n s t t h a t p e r s o n . I s i t y o u r p e r c e p t i o n t h a t t h e r e w a s
a g e n e r a l u n w r i t t e n p o l i c y t h a t f o r c e w a s u s e d a g a i n s t j o y
r i d e r s o r w a s n o t ?
A W e l l , I t h i n k p r o b a b l y i t w a s a g e n e r a l — g e n e r a l
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1 u n w r i t t e n p o l i c y , b u t t h a t i t w a s n o t a p o l i c y w i t h t h e
s t r e n g t h w o u l d b e f o r s o m e t h i n g l i k e a n e m b e z z l e r . I n o t h e r
w o r d s , e a c h i n d i v i d u a l o f f i c e r c o n f r o n t e d w i t h a j o y r i d i n g
s i t u a t i o n t h i n k i n g t o h i m s e l f a t t h a t p a r t i c u l a r t i m e " T h i s
m a n ' s g o i n g t o g e t a w a y . " O n e o f f i c e r m a y h a v e n o i d e a t h a t
t h e r e w a s a p o l i c y i n h i s m i n d . I t h i n k i t b e c a m e a n
i n d i v i d u a l o f f i c e r ' s d e c i s i o n . H e c o u l d s h o o t h i m a n d h e
w o u l d b e p r o t e c t e d , h e f e l t . O r h e c o u l d l e t h i m g o b e c a u s e
h e w a s t h e k i n d o f g u y t h a t d i d n ' t w a n t t o s h o o t t h e g u y
f o r j o y r i d i n g . A n d h e w o u l d n ' t b e I d o n ' t t h i n k t h e
P o l i c e D e p a r t m e n t w o u l d h a v e p r o s e c u t e d h i m , y o u k n o w . O f
c o u r s e , m a y b e t h e P o l i c e D e p a r t m e n t w o u l d n e v e r k n o w a b o u t
i t . H e ' d s a y " T h e g u y g o t a w a y " a n d t h a t w o u l d b e t h e e n d
o f i t . B u t I f e l t t h a t s i n c e s o m e o n e w h o f e l t t h a t t h e p o l i c i '
w a s n o t i n e x i s t e n c e , t h e r e w a s n o p o l i c y , o r i f t h e p o l i c y
w a s i n e x i s t e n c e , i t w a s o n l y t h e S t a t e L a w t h a t s e t t h e
p o l i c y , h a d d o n e i t , t h e n i t w a s t i m e t o s a y t o a l l t h e
o f f i c e r s " O u r p o l i c y i s a g a i n s t i t . I t ' s n o t o n e o f t h e
t h i n g s w e t h i n k y o u o u g h t t o u s e f o r c e o n . " I d i d n ' t s a y
" c a r t h i e v e s " b u t I s a i d " j o y r i d i n g . " K i d s o u t r i d i n g a r o u n d
t h e b l o c k , t a k e a c a r a n d r i d e i t a r o u n d t h e b l o c k , n o t
i
c r e a t i n g a n y h a v o c , n o t s t e a l i n g , n o t u s i n g i t t o m u r d e r
s o m e b o d y o r r o b s o m e b o d y . A n d t h a t w o u l d b e j u s t o n e l e s s
o p p o r t u n i t y f o r t h i s t o o c c u r a g a i n , w h i c h I , y o u k n o w , I
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deplore.
Q. Well, actually, the policy was such that it allowed
one officer to use deadly force in that situation and another
officer to — and when I say "policy" we know we're not talk
ing about a written policy, but the way things operated in
the department at that time, it allowed one officer to use
force, deadly force, and another one not to.
A. VTell, I'm not sure that that isn't the policy in
everything in the Police Department today. I'n not sure that
every officer v;ould react, for example, to a fleeing burglar
or fleeing murderer the sane as another. They perceive the
law, and, therefore, the policy to be, if I cannot shoot this
person, if I cannot apprehend him, I have the right to use
force, I have the right to use a firearm to apprehend him.
That doesn't mean, in my opinion, that every policeman will
shoot an escaping person, felon, if they can't apprehend him.
There may be some people over there, I don't know who they
are or anything else, but I believe some would say "I'm just
not going to shoot that fellow. I believe we can catch him.
I believe that he's catchable." And I believe that's true
in this area. But in this area, I didn't want, if I could
avoid it, anyone to have the decision in their mind that I
can or can't. I wanted it eliminated as much as we could by
policy from their decision-making process. I can't make a
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1 decision for a nan to shoot a nurderer. Therefore, I assune
that they nay or may not shoot a murderer, even if he's going
to get away.
Q. But State Law allows the person, the officer to use
all, I mean, it requires that all other means of apprehension
be exhausted first.
A.
C.
A.
That's right.
Before employing deadly force.
Right.
0. And what you're saying is that some officers are
going to look harder for other means of apprehension before
the use of force.
A. Well, I'm not — no, I'm not really saying that.
I'm saying that some officers, if they see a fleeing felon,
not natter what his offense nay be, will hesitate before
they're willing to shoot a fellow man. Some will not. That's
a decision that they make at the moment, under tremendous
pressure. Some will just not do it. That's the decision the^
make with every fleeing felon. Have I used everything? You
know, can I do more? Is there something else I could do?
That guy, while he's thinking, the guy is gone.
Others will use it the moment they feel that the
nan will be gone. That man, that person may be a chauvenistib
pig, but that person will escape, they will feel that that
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1 l i n e h a s b e e n c r o s s e d a n d t h e y w i l l u s e i t q u i c k l y . I t ' s a
j u d g m e n t a l t h i n g .
N o w , I ' m n o t g o i n g o u t h e r e t o t e l l e v e r y p o l i c e m a n
t o s h o o t e v e r y b o d y t h a t , y o u k n o w , a s s o o n a s t h e y f e e l , y o u
k n o w , j u s t q u i c k , m a k e u p y o u r m i n d , n o w a i t i n g . B u t I
d o n ' t w a n t t h e m t o b e a b l e t o u s e i t i n m a t t e r s i n v o l v i n g
j o y r i d i n g . I d o n ' t w a n t t h e m t o h a v e t h a t d e c i s i o n - m a k i n g
p r o c e s s , t h i s i s a j o y r i d e r . I w a n t t h e m t o d o e v e r y t h i n g
t o a p p r e h e n d t h e m t h e y c a n , b u t I d o n ' t w a n t t h e n t o c o m e
t o a t i m e t o v / h i p o u t t h e i r g u n a n d s a y " N o w , h e ' s c r o s s e d
t h e l i n e . " I d o n ' t w a n t t h e m t o m a k e t h a t d e c i s i o n i n a
j o y r i d i n g c a s e .
0- D i d y o u d i s c u s s , a g a i n , w e ' r e t a l k i n g a b o u t a m e e t
i n g a n d i t ' s d i f f i c u l t f o r y o u t o r e c a l l w h o w a s t h e r e , b u t
w h e n I a s k t h i s q u e s t i o n y o u ' r e g o i n g t o h a v e a h a r d t i m e
r e m e m b e r i n g , I k n o w , b u t d o y o u r e m e m b e r w h e t h e r o r n o t y o u
d i s c u s s e d a n y o t h e r f e l o n i e s , a b o u t t h e p o s s i b i l i t y o f e l i m i n a t .
i n g a n y o t h e r f e l o n i e s , t h i r d d e g r e e b u r g l a r y , f o r i n s t a n c e ?
I d o r e m e m b e r t h a t . T h e y d i d d i s c u s s t h a t .
Q. W e l l , t e l l m.e a b o u t t h a t d i s c u s s i o n n o w .
A. I r e m e m b e r , I t h i n k i t w a s m a y b e t h e n i g h t t i m e
b u s i n e s s b u r g l a r y . I s t h a t w h a t ? T h i r d d e g r e e b u r g l a r y ?
I c a n ' t r e m e m b e r . B u t n i g h t t i m e , b r e a k i n g i n t o t o s o m e
g u y ' s p l a c e a t n i g h t , w h e r e t h e y w o u l d n o t a s s u m e t h a t a n y b o d j i
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1 was in there and, therefore, if they v/ent in there, they were
obviously in there just to steal some things and get out. No
life involved, no danger to anybody. There was that as
opposed to going into a home, that as opposed to going into
a place in the day time when people could or could not, may
or may not come in and out. It was my opinion then and still
is at this time that those should not be eliminated from
the fleeing felon policy.
0. Including the person going into the business at
night?
A. Including the place of business at night.
0. Nell, now, you say you remember this coming up. Was
this the opinion that other persons had? Do you remember
Chief Price or others?
a. I'm not sure who had what. There was, as I say, I
believe we discussed this probably with, I think, Maxine
Smith and her group may have come down here, I'm not sure.
And I think that was one of the things that they brought up.
I don't think the Police Department wanted that included or
added to this or eliminated from the policy. Krelstein may
have been for it, I'm not sure.
0. You think that your opinion was consistent with
that opinion generally held by the members of the Police
Department?
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1 5.
0.
I don't recall. It orobably was.
And what is the basis for vour opinion in that area
of just a person burglarizing a business at night?
A Well, rr' opinion of anyone who would break into a
building or enter a building for stealing, that if he's
confronted by a watchman, by someone who comes in at night,
by any person who m.â/ or nay not cone about the place of
business, or a policeman that comes to investigate, the mere
fact that he is willing to go to the extreme of going into a
building where a person may come in and may contront him, in
my opinion, ofttin.es he will and does use deadly force himself
to escape, and that, therefore, he should not be treated as
some guy just sneaking and skulking in the dark. I don't —
I think anybody that will cross somebody else's threshhold
and therefore enter into a situation where someone could be
endangered, an alarm goes off, the owner comes down, he goes
in before the police get there, or he goes in, comes back at
night to check his goods or whatever, and the man's in there,
many times he'll kill. I just don't think we ought to let
people go in and out at will, invade people's homes, business-[
es or anything else, and, then, get away by simply running
away, because even though there wasn't anybody in there today
or tonight, there could be people in there other times and
it could end up in a confrontation and somebody could be
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1 injured or killed.
Q. So, I'm trying to understand from a law enforcement
point of view what policy you have in mind there.
A. Well, I'm not a law enforcement officer. , You asked
ne my opinion. That's my idea of what the policy should be.
You will have to ask others about the law enforcement aspect.
0. V7ell, it does appear, though, that you're saying
that that person is going to, even from a law enforcement
point of view, is going to, by the nature of the act commit
ted, be likely to be committing other kinds of crimes which
nay be more harmful to other people.
A. Well, no, I'm not saying that. I'm saying that a
burglar or a person that comes into this building at night,
everybody's supposed to be gone, he's rifling my drawers, if
he's confronted by a nightwatchman, as we see constantly, as
occurs constantly, he nay kill him in order to escape. There
fore, I don't look on him as just some misdemeanor or some
guy, well, he's just in there just stealing personal property
we won't worry about him, let him go. I look on him more as
a potential — potentially very dangerous person. I'm sure
that I don't have to tell you and I'm sure you don't have to
read the papers often to find out how many times a guy that's
in somebody's house, somebody's business, when confronted by
people,kills them. And they do it all the time. They are
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1 burglars, but they are rapists or murderers as an adjunct of
that burglary. The fact that a man comes into a place of
business or into a building that's not his own shows he'll
do anything, in my opinion, ofttimes to get out of that
situation, if confronted. And I think he should be apprehend
ed, first, legally by being caught, but, second, by putting
an end to it. I don't think he should be allowed to just
burgle at v/ill as long as he can outrun the police. Sooner
or later, he'll get into deeper trouble.
0. Well, for whatever reason. Chief Price was in agree
ment with you on that, wasn't he?
A V7ell, he included it in his policy.
Q. I mean, you didn't prevent him from eliminating nigh^
burglaries of a business in this policy. He would have
included that in his policy. The two of you were in agree
ment on that issue.
A I'm sure we were.
p. Was there a disagreem>ent with you, as far as you
remember, from anybody about changing the policy on joy
riding?
A I don't remember any. I think — I think generally
the people in the Police Department, the Legal Staff, all of
us felt that, I think basically we felt that most times that
had been the quote unwritten policy, and that in view of the
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1 f a c t t h a t i t h a d — t h i s o c c u r r e d , i t s h o u l d b e e l i m i n a t e d
i n a n y w r i t t e n p o l i c y . T h a t w a s t h e p r i m a r y p u r p o s e o f t h i s
n e m o .
0. A n d t h a t t h a t w a s n ' t g o i n g t o c a u s e t h e n a n y
p r o b l e m s , t o e l i m i n a t e t h a t f r o m —
A ( I n t e r p o s i n g ) H o t t h a t I k n o w o f . A s f a r a s I k n o w ,
i t h a s n ' t c a u s e d t h e m a n y p r o b l e m . W h e n I s a y i t h a s n ' t
c a u s e d t h e m a n y p r o b l e m . s , P h i l , I m e a n I ' v e n e v e r h e a r d f r o m
t h e P o l i c e D e p a r t m e n t s i n c e a b o u t i t . I f i t w a s c a u s i n g
t r o u b l e . I ' m s u r e I ' d h e a r f r o m s o m e b o d y .
Q. I ' m n o t t r y i n g t o b r i n g t h e e l e c t i o n i n t o t h e
d e p o s i t i o n . M a y o r , b u t y o u h a v e m a d e s o m e s t a t e m e n t s r e c e n t l y
a b o u t u n i t i n g t h e c o m m . u n i t y , a n d v a r i o u s d i v i s i o n s t h a t m a y
c o n t i n u e t o e x i s t . B a c k i n ' 7 2 , a n d I k n o w i n t h i s o t h e r
d e p o s i t i o n y o u ' v e r e c o g n i z e d s o m e f a i r l y s e r i o u s d i v i s i o n s
t h a t e x i s t e d i n t h e c o m m u n i t y , a n d i n p a r t i c u l a r h o w i t
a p p e a r e d t h e b l a c k c o m m u n i t y v i e w e d t h e P o l i c e D e p a r t m e n t .
W e h a v e t h a t i n t h i s o t h e r d e p o s i t i o n , b u t y o u a r e a l a w y e r ,
y o u k n o w w e ' v e g o t t o g e t i t i n t o t h i s c a s e .
A. R i g h t .
Ql A n d I w a n t t o s i m p l y a s k y o u a b o u t t h a t . I t h i n k
i t ' s a r e i t e r a t i o n . A n d I t h i n k a l s o t h a t i t ' s y o u r f e e l i n g
t h a t t h e r e ' s b e e n s u b s t a n t i a l c h a n g e i n t h a t p e r c e p t i o n o f t h ^
P o l i c e D e p a r t m e n t . B u t i n 1 9 7 2 , i t w a s c o m m u n i c a t e d t o y o u
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1
A. It v/as connunicated to me by the black leaders, but
I was well aware of it. It had been communicated to me by
black people all my life. I've lived here all my life and
I've been talking to people all my life, so I knew how they
felt about the Police Department.
Q. And as Mayor, you utilized that information to try
to do something about it, I assume?
A. I did.
9
Q. And what was that perception that you viewed as
being the perception of the black community in general toward
the Police Department?
A Well, I think, generally speaking, whether justified
or not, the black community felt that the police were the
enemy. I think from the time they were young children, they
had been told by their parents, I was told that if I didn't
behave the boogyman would get me, they were told that they
xvould call the police, to put it in the vernacular. And the
police generally, though they may have risked life and limb
constantly in an effort to assist the black community, were
looked upon as representatives of quote the establishment or
quote the man or whatever, and as being very brutal, being
very racist, and as being just — running them down, doing
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by black leaders what the perception of the black commiinity
x̂ as toward the Police Department, isn't that correct?
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whatever they fait they could do,
0. But there was sone basis for that perception, too,
v/asn't there?
A. Well, there nay have been. I've never lived in
the ghetto with then, but I'n sure that sone of them felt
there was justifiable cause. There may have been.
0. Well, what about when you first cane into office,
during this period of time, January of '72, v;hat about just
the makeup of the departm.ent itself in terms of black and
v/hite officers? There weren't many black officers as
compared to numbers of whites, isn't that correct?
MR. SHEA: I believe I would like to raise an
objection, I know you're going to ansv/er anyway,
but it's a continuing objection into this line of.
questioning.
A Yes, there weren't many.
Q- Were not many black police officers. And the
hierarchy of the department?
A Included no blacks whatever.
Q. None whatsoever?
A The highest ranking black was probably lieutenant.
I'm not sure.
(Off the record discussion.)
"Q- But you've worked on problems yourself and you know
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1 that others when you’ve appointed and v;ith whon you've talked
have also worked on problens of how white police officers
treated blacks. And at this time in '72, there were
justifiable claims of mistreatment of dealing with blacks
in disrespectful m.anners, isn't that correct?
A. I'm not going to say that — you know, I don't know,
just as a broad statement. There were allegations constantly
made. Some perhaps had some justification. Many others did
not. Of both mistreatment and rudeness or whatever, yes.
You know, I don't know what -- I don't knov; what all — what
case you're talking about or what —
0. (Interposing) I'm not talking about a particular cas^
but I — you did have some ideas yourself, you said, that
you developed over a period of tine, as an attorney, as a
councilman?
A. Sure.
Ol Of what the perceptions were in the black community,
and you made some —
A (Interposing) Well, first we can agree on the
perception. And there's no question that we can agree that
there v/ere many complaints about the police over their
conduct, physical and vocal. I can't agree on how many were
justified or what percentage were or whatever. I know that
there were some awfully fine men on the police force.
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1 And I'm not asking you to do that because I don't
have even anything I'd ask you to agree with on that in terms
of percentages. But I am talking about the perception then,
and if that perception existed.
A. It did.
Q. And we agreed it did.
Do you feel that it was likely that a black would
run from the police because he feared the police as well as
because he was trying to not be apprehended?
A I feel there are — there have been many instances
where the blacks have run from police who weren't even guilty
of anything.
0- And that would be because of this perception of the
department or of police and the fear that —
A (Interposing) They could run because of perception
and they could run because they're trying to escape from the
police because they had committed a crime, both are possible.
MR. ARNOLD: Thank you, Mr. Mayor.
CROSS EXAI4INATION
BY MR. SHEA:
Q. Mayor Chandler, you had been Mayor for only twelve
days when this unfortunate occurrence took place. You did
not know nor did you condone all the policies and customs
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1
I d i d n o t .
M R , S K E A : T h a n k y o u .
A N D F U R T H E R D E P O N E N T S A I T ! ! N O T ,
( S I G N A T U P v E W A I I ^ D )
S T A T E O F T E N N E S S E E
of the Police Departnent at that tine?
C O U N T Y O F S H E L 3 Y
S w o r n t o b e f o r e n e t h i s 1 9 t h d a y o f D e c e n b e r 1 9 7 9
H e l e n K i m b a l l
M Y C O M M I S S I O N E l O P I R E S
O c t o b e r 1 4 , 1 9 3 1
( S e a l )
n 1 <A ' *
-39-
C E R T I F I C A
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2
S T A T E O F T E N N E S S E E
: O U N T Y O F S H E L B Y
I , i l e l G n K i i - o b a l l , C o u r t R e p o r t e r a n d N o t a r y
P u b l i c , d o h e r e b y c e r t i f y t h a t t h e f o r e g o i n g p r o c e e d i n g s
’. v e r e r e c o r d e d b y m e i n s h o r t h a n d , a n d t a p e d , a n d s u b s e
q u e n t l y r e d u c e d t o t y p e w r i t i n g u n d e r n y s u p e r v i s i o n ,
a n d c o n t a i n s a l l t h e p r o c e e d i n g s p r o p o u n d e d w h i c h
o c c u r r e d t h i s 1 9 t h d a y o f D e c e m b e r 1 9 7 9 .
I f u r t h e r c e r t i f y t h a t I a m n e i t h e r r e l a t e d
t o n o r e m p l o y e d b y c o u n s e l o r a n y o f t h e p a r t i e s
c o n c e r n e d i n t h i s c a u s e o f a c t i o n , a n d h a v e n o i n t e r e s t
i n t h e o u t c o m e o f s a m e .
W I T N E S S M Y H A N D A N D S E A L , T h i s D e c e m b e r 1 9 , 1 9 7 9 .
N O T A R Y P U B L I C & C O U R T R E P O R T E R
M Y C O M l - l I S S I O N E X P I R E S
O c t o b e r 1 4 , 1 9 8 1
( S e a l )
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1
E X H I B I T 1 - S T A T E M E N T -
I N T R O D U C E D B Y M R . A R N O L D A T P A G E 2 1 -
O 1 Ii)
-41-
P A R T 7 : D e p o s i t i o n o f
W i n s l o w C h a p m a n i n
M a d i s o n v . M e m p h i s P o l i c e
D e p a r t m e n t
9 U ’
n
i : i T H E u r i i T E o .'■'t a t e s d i s t r i c t c o u r t
F O R t h e w e s t e r n D I S T R I C T O F T E N N E S S E E
W E S T E R N D I V I S I O N
I R A L E E N i A D I S O N , E T A L ,
P L A I N T I F F S ,
V S .
M E M P H I S P O L I C E D E P A R T M E N T ,
E T A L ,
D E F E N D A N T S .
C I V I L A C T I O N
N O . C - 7 3 - 2 1
T h e d e p o s i t i o n o f E . W I N S L O W C H A P M A N , w a s t a k e n
o n t h i s t h e 2 7 t h d a y o f D e c e m b e r , 1 9 7 9 a t t h e M e m p h i s
P o l i c e D e p a r t m e n t , A d a m s a n d S e c o n d , M e m p h i s , S h e l b y
C o u n t y , T e n n e s s e e , o n b e h a l f o f t h e P l a i n t i f f s , b y c o n s e n t
o f c o u n s e l , p u r s u a n t t o t h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e
A l l f o r m s a n d f o r m a l i t i e s i n c l u d i n g t h e s i g n a t u r e
o f t h e w i t n e s s a r e v / a i v e d .
O b j e c t i o n s a s t o t h e i n c o m p e t e n c y , i r r e l e v a n c y a n d
i m m a t e r i a l i t y o f t h e t e s t i m o n y a r e r e s e r v e d ; o b j e c t i o n s a s
t o f o r m a n d t o l e a d i n g q u e s t i o n s a r e t o b e m a d e a s t h e y
o c c u r , a l l o f w h i c h a r e t o b e p r e s e n t e d a t o r b e f o r e t h e
h e a r i n g .
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APPEARANCES
F o r t h e P l a i n t i f f ,
F o r t h e D e f e n d a n t .
. R a t n e r , S u g a r m o n , L u c a s a n d
H e n d e r s o n , b y
M R . G . P H I L I P A R N O L D
A t t o r n e y - a t - L a w
M R . W I L L I A M E . C A L D W E L L
A t t o r n e y - a t - L a w
5 2 5 C o m m e r c e T i t l e B u i l d i n g
M e m p h i s , . T e n n e s s e e
. C i t y A t t o r n e y ' s O f f i c e , b y
M R . A R T H U R S H E A
A t t o r n e y - a t - L a w
M R . C H A R L E S V . H O L M E S
A t t o r n e y - a t - L a w
3 1 4 C i t y H a l l
1 2 5 N o r t h M a i n S t r e e t
M e m p h i s , T e n n e s s e e
^ N D E X
E X A M I N A T I O N
W I T N E S S P A G E
E . W I N S L O W C H A P M A N
D I R E C T E X A M I N A T I O N B Y : M R . C A L D W E L L . ,
C R O S S E X A M I N A T I O N B Y : M R . S H E A . . . .
R E D I R E C T E X A M I N A T I O N B Y : M R . C A L D W E L L .
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E X H I B I T S
NO. DESCRIPTION______ ________________________PAGE
1 - POLICY.................................. 91
2 - POLICY.................................. 92
3 - POLICY................................. 9 3
4 - CHART................................. 9 4
5 - DIAGRAM............................... 9 5
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E. WINSLOW CHAPMAN,
T h e w i t n e s s , b e i n g f i r s t d u l y s w o r n , d e p o s e d a s
f o l l o w s , t o - w i t :
DIRECT EXIiMINATION
BY MR. CALDWELL:
Q. Y o u a r e E . W i n s l o w C h a p m a n ?
A. Y e s , I a m .
0. A n d y o u ' r e t h e D i r e c t o r o f P o l i c e S e r v i c e s , i s t h a t
t h e c o r r e c t t i t l e ?
A. T h a t ' s c o r r e c t .
0. I V h i c h p o s i t i o n y o u ' v e h e l d s i n c e S e p t e m b e r , 1 9 7 6 ?
A. C o r r e c t .
0. A n d p r i o r t o t h a t t i m e y o u v / e r e t h e M a y o r ' s
E x e c u t i v e A s s i s t a n t ?
A. C o r r e c t .
g F r o m 1 J a n u a r y , 1 9 7 2 u n t i l S e p t e m b e r , 1 9 7 6 ?
A. C o r r e c t .
g A n d p r i o r t o b e i n g t h e M a y o r ' s E x e c u t i v e A s s i s t a n t
w h a t b u s i n e s s w e r e y o u i n ?
A. I w a s s e l f - e m p l o y e d , f a r m i n g a n d r e a l e s t a t e ,
g A r e y o u a n a t i v e M e m p h i a n ?
A Y e s .
g Y o u a t t e n d e d t h e p u b l i c s c h o o l s o f M e m p h i s ?
A. Y e s .
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Q.
A.
Q.
A.
a
A.
i n ' 6 1 .
V J h a t s c h o o l s d i ' y o u a t t e n d ?
D a r t l e t t .
T h a t w a s i n t h e c o u n t y s y s t e m a t t h e t i m e ?
U h - h u h . C o u n t y s y s t e m .
S t i l l i s . A n d t h e n d i d y o u g o t o c o l l e g e ?
I w e n t t o t h e N a v a l A c a d e m y a n d g r a d u a t e d f r o m t h e r e
0.
A.
Q.
A.
I T h a t d i d y o u d o a f t e r t h a t ?
A. W e n t i n t o t h e A r m y , t o o k a c o m m i s s i o n i n t h e A r m y
a n d s e r v e d i n E u r o p e f o r a l i t t l e o v e r f o u r y e a r s .
0. I n w h a t c a p a c i t y d i d y o u s e r v e i n t h e A r m y ?
A. A b o u t a y e a r a n d a h a l f a s a n a r m o r e d c a v a l r y p l a t o o
l e a d e r , a n d I g u e s s a l i t t l e l o n g e r t h a n t h a t a s t h e P r o v o s t
M a r s h a l o f A n s b a c h , G e r m a n y , U . S . A r m y M i l i t a r y P o l i c e .
A l l r i g h t . T h a t w o u l d h a v e b e e n ' 6 1 t h r o u g h 6 5 .
U h - h u h .
A i n d t h e n w h a t d i d y o u d o a f t e r ' 5 5 ?
I c a m e b a c k i n ' 6 5 a n d w e n t t o l a w s c h o o l f o r a
y e a r . I w o r k e d i n c o n s t r u c t i o n w o r k f o r m a y b e a y e a r o r t w o ,
a n d t h e n w e n t i n t o b u s i n e s s f o r m y s e l f .
Q_ Y o u s a y y o u w e r e i n t h e f a r m i n g a n d
A. ( I n t e r p o s i n g ) F a r m i n g a n d r e a l e s t a t e .
Q. A n d t h e n w h e n M a y o r C h a n d l e r w a s e l e c t e d , o r w h e n
h e t o o k o f f i c e f o r h i s f i r s t t e r m a s M a y o r i n J a n u a r y o f
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1 9 7 2 y o u w e r e — h e h a d a l r e a d y s e l e c t e d y o u a t t h a t p o i n t
a s h i s E x e c u t i v e A s s i s t a n t , i s t h a t e s s e n t i a l l y — h a d y o u
✓
w o r k e d —
( I n t e r p o s i n g ) H e m a d e t h a t s e l e c t i o n i n D e c e m b e r
o f ' 7 1 .
0. H a d y o u w o r k e d w i t h h i m d u r i n g h i s c a m p a i g n ?
A. Y e s .
P- D i d y o u h a v e a n y p r i o r l a w e n f o r c e m e n t e x p e r i e n c e ?
V l o u l d y o u c a l l a n y o f y o u r e x p e r i e n c e s i n t h e A r m e d S e r v i c e s
A. ( I n t e r p o s i n g ) W e l l , I ' d s a y t h a t m y , I g u e s s t h r e e
y e a r s , t w o a n d a h a l f y e a r s a s t h e P r o v o s t M a r s h a l w o u l d b e
l a v / e n f o r c e m e n t e x p e r i e n c e . I w a s i n t h e S h e r i f f ' s R e s e r v e
f o r s o m e l i t t l e o v e r s i x y e a r s .
Q. T h i s w a s d u r i n g t h e ' 6 0 ' s ?
A. U h - h u h .
0. iV n c ' w h a t d i d v o u d o i n t h e S h e r i f f ' s R e s e r v e s ?
A. A c t i v e , y o u k n o w , a c t i v e e n f o r c e m e n t , r i d i n g i n a
s a u a d c a r .
0-
A.
p.
A.
0-
A.
I s t h a t r i g h t ?
Uh-huli.
H o w o f t e n d i d y o u d o t h a t ?
P r o b a b l y t w i c e a w e e k .
A n d y o u ' d m a k e a r r e s t s ?
O h , y e s . Y o u w e r e f u l l y c o m m i s s i o n e d S h e r i f f ' s
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D e p u t y .
Q. Did you ever have occasion to use deadly force?
A. N o .
0. V ' h a t v ; e r e t h e d e a d l y f o r c e p r a c t i c e s o f t h e S h e r i f f
D e p a r t n e n t ? V J h a t w a s t h e i r p o l i c y ?
A. S t a t e l a w .
0. I s t l i a t s t i l l t h e i r p o l i c y ?
A. I ' 1.1 n o t s u r e .
0. Now, since January, '72 have you taken any courses
toward obtaining a degree of any kind?
A. Y e s .
0. I n l a v 7 e n f o r c e m e n t o r s o m e r e l a t e d f i e l d ?
A, I ' r a p r e s e n t l y w o r k i n g , a n d h a v e b e e n f o r t h e p a s t
t h r e e y e a r s , o n - a D o c t o r a t e — I m e a n a b l a s t e r ' s D e g r e e i n
A d m i n i s t r a t i o n o f C r i m i n a l J u s t i c e . I ' l l c o m p l e t e t h a t t h i s
s p r i n g . S o u t h e r n I l l i n o i s U n i v e r s i t y .
Q. I s t h i s a c o r r e s p o n d e n c e c o u r s e ?
A. N o ,
Q, H o w d o y o u w o r k t h i s ?
A. i t i s n o t a c o r r e s p o n d e n c e c o u r s e . S o u t h e r n I l l i n o i ;
n e e d e d a d e p a r t m e n t t o s t u d y , a n d a s — i n a n e x c h a n g e f o r
a l l o w i n g t h e m t o c o m e i n h e r e a n d w o r k w i t h u s f o r t h e
p r a c t i c a l a p p l i c a t i o n o f t h e i r p r o g r a m t h e y e s t a b l i s h e d a n
i n - h o u s e , t h a t i s i n M e m . p h i s c o u r s e t h r o u g h t h e U n i v e r s i t y
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wiiich involves courses given here and then courses given up
there in the summertima,
0. And you'll get a Master's in the Administration of
Criminal Justice?
A.
Ql
A.
&
A
Right.
This coming spring?
Well, probably summer.
Tell me what kind of courses you've taken?
Oh, the history of law enforcement, some statistics,
law enforcement —— I don't know the correct titles, I guess
is what my problem is. I'd have to go back and look at the
catalog. Law enforcement administrative techniques,
corrections, juvenile justice, pretty well the whole smear.
MR. SHEA: Excuse me. This, of course, is a
discovery and I know you have wide latitude, but
since he did not become the Director of Police until
1976 I'm just going to enter a continuing objection
to any of this line of questioning.
0. (By Mr. Caldwell) The courses you're taking with
Southern Illinois are primarily courses geared toward how to
manage a law enforcement agency as opposed to how to be a law
enforcement officer, is that correct?
A That's correct.
& So you're not taking courses designed to train you
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h o w t o b e a p o l i c e o f f i c e r ?
A. N O . I f s a d m i n i s t r a t i v e c o u r s e s .
5 . B u t i n t h e c o u r s e o f t h a t y o u ' r e a l s o s u b j e c t t o -
o r y o u ' r e a l s o p r o v i d e d w i t h i n f o r m a t i o n a b o u t h o w l a w e n f o r c e -
m e n t w o r k s o n t h e s t r e e t ?
^ O h , I m a k e i t my b u s i n e s s t o K n o w a s m u c h a b o u t t h a t
a s p o s s i b l e .
g, B u t d o a n y o f t h e c o u r s e s g o t o t h a t ?
A. Y e s .
L i k e a r r e s t t e c h n i q u e s ?
N o , n o t t h a t b a s i c .
N o t h i n g l i k e h o s t i l e s i t u a t i o n s ?
h . h . t i n t h e — I ' m a w a r e o f s o m e o f t h o s e
W e t e a c h t h a t m t n e
t h e c o u r s e s t h a t a r e g i v e n a t t h e A c a d e m y t o s o m e d e g r e e , b u t
, L e , X h a v e n o t t a k e n s u c h c o u r s e s . X t o o k s u c h c o u r s e s w h e n
, X w e n t t h r o u g h t h e A c a d e m y w i t h t h e S h e r i f f ' s o e p a r t m e n t , b u t
, 8 I ' m n o t n o w p r e s e n t l y t a k i n g t h e m .
g N O W , w h e n d i d y o u g o t h r o u g h t h e A c a d e m y w i t h t h e
S h e r i f f ' s D e p a r t m e n t , do you r e m e m b e r ?
8 . I g u e s s i t w o u l d h a v e b e e n ' 6 5 .
g, N O W , t h e S h e r i f f ' s D e p a r t m e n t h a s a s e p a r a t e A c a d e m y
f r o m t h e P o l i c e D e p a r t m e n t ?
^ I say "Academy", X don't know that it was "Academy"
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1 p e r s e . I t w a s a t r a i n i n g s e s s i o n w h i c h i n c l u d e d b o t h
r e s e r v e s a n d r e g u l a r d e p u t i e s . I t h i n k i t w a s s o m e t w o h u n d
r e d a n d f i f t y h o u r s .
Q. S o y o u w o u l d h a v e t a k e n a s a r e s e r v e c a n d i d a t e t h e
s a m e c o u r s e s t h a t a S h e r i f f ' s D e p u t y r e c r u i t w o u l d h a v e
t a k e n ?
A. W o u l d h a v e t h e n .
Ql R i g h t . H a v e y o u t a k e n c o u r s e s i n c o n n e c t i o n w i t h
y o u r S o u t h e r n I l l i n o i s s t u d i e s o n p o l i c e c o m m u n i t y r e l a t i o n s ?
H a s t h a t b e e n a s u b j e c t ?
A. N o . N o t p e r s e . M a y b e s o m e , y o u k n o w , a s p e c t s a r e
i n t e r m i n g l e d i n o t h e r c o u r s e s , b u t n o t p e r s e . O n c e a g a i n ,
w e g i v e a p r e t t y e x p a n d e d s e g m e n t o f t h a t i n o u r o w n t r a i n i n g
a c a d e m y .
Ql H o w a b o u t d e a d l y f o r c e ?
A. I h a v e n o t t a k e n a n y s u c h c o u r s e s , p e r s e .
Q. T e l l m e w h a t y o u r d u t i e s w e r e w h e n y o u w e r e M a y o r
C h a n d l e r ' s E x e c u t i v e A s s i s t a n t , b e g i n n i n g 1 J a n u a r y 1 9 7 2 ?
A. M a n y a n d v a r i e d , j u s t w h a t e v e r t h e M a y o r d i d n ' t h a v e
t i m e t o g e t t o .
Ql You were sort of his trouble shooter, is that
essentially what it boiled down to?
A H i s E x e c u t i v e A s s i s t a n t , y o u k n o w , I t h i n k t h a t
p r e t t y w e l l c o v e r s i t . J u s t w h a t e v e r a d m i n i s t r a t i v e i t e m s
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Q. You were at Mayor Chandler's deposition which we
took last week, and you heard-him testify about some meetings
he and others were involved in?
A. Correct.
Q. With the aim of revising the deadly force policies
shortly after he took office?
A. Yes.
Q. Do you recall being present at any of those meetings
or having anything to do with that?
A. Definitely not present at any of them and had
nothing to do with it.
Q. How many police officers do you have on the Memphis
Police Department?
A. About twelve thirty now, twelve twenty-five or
twelve thirty commissioned.
Q. And is that up or down from what it's been over the
past years?
A It's fluctuated. It goes up every time we have a
new budget year and a class, and then steadily downward
until we have a new budget year and a new class. We were
scheduled to have a class this spring, but we probcibly won't.
So I'd say it's down overall. It's down considerably from
what it was in '74, '75.
that he didn't have an opportunity to take care of himself.
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1 ^ Is that right? you had over thirteen hundred, four-
2 teen hundred?
3 A- I think they went over fourteen hundred at one point
4 didn't they, Art? I'm not sure. It went up at least in the
5 range of fourteen hundre4 at one point.
6 0- You were appointed Director in September of 1976 at
7 about the time that the Civil Rights Commission was, maybe
8 during the course of its investigation of Police Community
9 Relations in Memphis?
10 A Directly before they came in here, like days before
11 they came in.
12 0- And you presented testimony to the Civil Rights
13 Commission, is that correct?
14 A Yes.
15 Q. One of the big issues with which the Civil Rights
16 Commission concerned itself and which you testified to, I
17 believe, had to deal with the relationship of the Memphis
18 Police Department with the black community?
19 A It was a major part of the issue.
20 0- And you agreed at that time that it was a serious
21 problem?
22 A I did.
23 0. Had it been a serious problem as long as you had
24 been observing the community and the situation?
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y e a r s , y e s .
Ql N o w , f r o m y o u r p e r s p e c t i v e n o w w h a t a r e t h e c o n t o u r s
o f t h a t p r o b l e m ? W h a t a r e t h e d i m e n s i o n s o f i t , a n d w h a t
c a u s e s i t ? H o w d e e p s e a t e d i s i t ? H o w a r e y o u g o i n g t o
r e m e d y i t , a n d I ' m n o t t r y i n g t o s u g g e s t t h a t y o u h a v e n ' t
b e e n t a k i n g s t e p s t o r e m e d y i t .
A. W e l l , I t h i n k i t h a s b e e n a l l e v i a t e d i n l a r g e p a r t
a t t h i s t i m e . A n d I t h i n k t h a t a m a j o r p a r t o f t h a t i s i n ,
f i r s t o f a l l , t h e p e r s p e c t i v e o f t h e b l a c k c o m m u n i t y a s t o
w h a t t h e p o l i c e d e p a r t m e n t i s g o i n g t o d o a b o u t t h e m , a n d
s e c o n d l y , t h e p e r s p e c t i v e o f t h e p o l i c e d e p a r t m e n t i t s e l f a s
t o w h e r e t h e y f i t r e l a t i v e t o t h e b l a c k c o m m u n i t y . Y o u k n o w ,
i t ' s a d i s c u s s i o n t h a t w e c o u l d g o o n f o r s e v e r a l h o u r s i f
w e r e a l l y g o t i n t o i t .
Ql I m e a n i s i t a f a i r d e f i n i t i o n o f t h e p r o b l e m t h a t
h i s t o r i c a l l y t h e b l a c k c o m m u n i t y h a s n o t t r u s t e d t h e M e m p h i s
P o l i c e D e p a r t m e n t , o r M e m p h i s p o l i c e o f f i c e r s i n g e n e r a l ?
A. O h , I t h i n k t h a t ' s a f a i r a n d c o r r e c t s t a t e m e n t .
Q. A n d t h e y a l s o f e e l t h a t t h e y a r e s u b j e c t t o c i b u s e b y
M e m p h i s P o l i c e o f f i c e r s ?
A Y e s .
Q, A n d t h e r e ' s a b a s i s i n f a c t a n d h i s t o r y f o r t h a t ,
i s t h e r e n o t ?
A- My feeling was it had been a serious problem for
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A. Yes. Yes.
0- In fact it hasn't been eliminated to this day?
A. Not completely, no.
Q. Last week you had a situation where you, well, I
guess you forced an officer to resign for passing out racist
literature on company time, so to speak?
A. He chose to resign.
0- But am I correct in that he was passing out racist
literature to fellow officers?
A. I don't know how to describe that literature to you,
but yes, it was — it did have — it was basically racial as
far as its overtone was concerned.
0- According to the descriptions in the press, I don't
know whether it was a pamphlet or a series of papers or what,
but it depicted blacks as still being in the ape age, or the
ape stage of development?
A That basically was what it did, yes.
Q. All right. The Commercial Appeal's article on this
incident also said that other white officers were observed
reviewing this material and laughing. Is that a fact or did
you find out?
A That was as related to us by the black officers
who observed it.
0- So there's still a chance you have racist police
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1 officers?
2 A. O h , y e s , I t h i n k t h a t t h a t ' s a d e f i n i t e p o s s i b i l i t y .
3 Q. A n d a p o l i c e o f f i c e r w h o w o u l d f i n d f u n i n t h i s s o r t
4 o f t h i n g m i g h t a l s o m i s t r e a t a b l a c k p e r s o n , m i g h t n ' t h e ?
5 A W e l l , I d o n ' t t h i n k t h a t y o u c o u l d m a k e t h a t
6 d e f i n i t e a s s u m p t i o n , I r e a l l y d o n ' t . I t h i n k t h a t o b v i o u s l y
7 t h e t r e a t m e n t o f a l l c i t i z e n s , b l a c k a n d w h i t e , b y t h i s
8 d e p a r t m e n t i s n o t e x a c t l y a l l t h e t i m e i n e v e r y i n s t a n c e w h a t
9 I t h i n k i t s h o u l d b e . O n t h e o t h e r h a n d t h e i m p r o v e m e n t h a s
10 b e e n j u s t t r e m e n d o u s o v e r w h a t i t w a s a f e w y e a r s a g o , a n d I
11 t h i n k t h a t t h i s i m p r o v e m e n t i s c o n t i n u i n g .
12 Ql W e l l , I a g r e e w i t h t h a t . I m e a n I a g r e e w i t h y o u
13 t h a t t h e r e h a s b e e n i m p r o v e m e n t a n d i t i s i n c o n t r a s t t o w h a t
14 i t w a s a f e w y e a r s a g o .
15 A I d o n ' t r e l a t e t h e p a s s i n g o u t o f t h a t l i t e r a t u r e a s
16 n e c e s s a r i l y b e i n g r e l a t e d t o a t e n d e n c y t o a b u s e p e o p l e . I
17 t h i n k i t w a s j u s t a v e r y i m m a t u r e , c h i l d i s h , i n e x c u s a b l e , .
18 b u t i m m a t u r e a n d c h i l d i s h t h i n g .
19 Ql W e l l , s o m e o n e w h o f i n d s h u m o r i n t h i s s o r t o f
20 b i g o t r y a t l e a s t h a s a p o t e n t i a l n o t t o t r e a t p e o p l e e q u a l l y
21 b e c a u s e o f t h e c o l o r o f t h e i r s k i n , w o u l d h e n o t ? W e l l ,
22 a n y w a y , t h e f a c t t h a t w e a g r e e t h e r e i s a b a s i s i n f a c t f o r
23 t h i s —
24 A (Interposing) There's a basis in fact for the
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distrust of the black coitununity.
Ql And that would have been true in 1972?
A Absolutely.
Q. And 1974?
A Absolutely,
g. And 1976?
A Yes.
Q. A part of that historical tension between the
Memphis police officers and the black community is related
to incidents of the use of deadly force? That's also been a
part of the overall community relations problem, has it not?
A As far as the perception of some members of the
black community, yes.
Ql Would it be fair to say that in 1972 a black person
is likely to have feared contact with the Memphis police
officers?
A It's possible, yes.
Ql And I saw an article a while back, I keep all kinds
of clippings, but this is — you may recall this situation
where the guy was standing on the corner and the police
arrived and he started running and was shot at. It turned
out that he was totally innocent of anything. He was just
standing on the corner, or were you satisfied that he was
A (Interposing) Well, no. I was not satisfied. I
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was satisfied that that shooting was not within the bounds
of our shooting policy, but no, quite frankly, I think that
it is a distinct possibility that he was involved. As a
scatter of fact we have two eyewitnesses that say he was
involved without question,
g Oh, is that right?
s. But we can't prove he was involved,
g, YOU saw this article in the Comercial Appeal?
Yes. It was something that we never were satisfied
either one way or the other that he definitely was or he
definitely wasn't.
g. W h a t w e r e t h e c i r c u m s t a n c e s i n t h a t s h o o t i n g ,
t h a t a h o l d - u p o r w h a t , I d o n ' t r e m e m b e r ?
I don't recall.
But he was reprimanded?
Yes.
The officer involved for shooting at this suspect?
Yes.
NOW, according to the Commercial Appeal on this
Ur- *79 oaae forty-one. (Reading) incident of 7 November, 79, page
"Deputy Chief John Molnar, head of operations, said the
police officer involved had been cited for violating three
sections of the General Order on the Use of Firearms." And
then he listed three sections. "Be virtually certain that
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1
t h e p e r s o n h e s h o o t s a t i s r e s p o n s i b l e f o r t h e c r i m e . U s e
a l l r e a s o n a b l e m e a n s t o c a p t u r e a f l e e i n g , d a n g e r o u s f e l o n y
s u s p e c t b e f o r e u s i n g h i s w e a p o n . H a v e a c l e a r l i n e o f f i r e
w h e n h e u s e s h i s w e a p o n i n o r d e r t o p r e v e n t i n j u r y t o
i n n o c e n t p e r s o n s . ”
A n d t h e n i t s a y s , " T h e T r i a l B o a r d c l e a r e d h i m o n
t h e f i r s t t w o s e c t i o n s b u t f o u n d h i n r g u i l t y o n t h e t h i r d , "
a p p a r e n t l y b e c a u s e a p e l l e t s t r u c k a h o u s e a n d c o u l d h a v e
i n j u r e d a n o c c u p a n t . S o h e v i o l a t e d y o u r d e a d l y f o r c e p o l i c y
a t t h a t t i m e b y n o t h a v i n g a c l e a r f i e l d o f f i r e ?
A. R i g h t .
Q. B e f o r e h e f i r e d . A l l r i g h t . W h e n y o u t o o k o v e r
t h e P o l i c e D e p a r t m e n t i n S e p t e m b e r o f 1 9 7 6 w h a t w a s y o u r
a c t i o n w i t h r e s p e c t t o m o d i f i c a t i o n s o r c h a n g e s i n t h e
d e a d l y f o r c e p r o c e d u r e ? L e t m e s h o w y o u a d o c u m e n t w h i c h I
b e l i e v e i s t h e l a s t G e n e r a l O r d e r o n D e a d l y F o r c e b e f o r e t h i s
s u m m e r , a n d t h a t ' s d a t e d 5 F e b r u a r y 1 9 7 4 ?
( P a s s e d t o w i t n e s s . )
A U h - h u h *
0- T h a t w a s t h e p o l i c y i n e f f e c t w h e n y o u b e c a m e
D i r e c t o r i n 1 9 7 6 ?
A R i g h t .
0. N o w , y o u m a d e s o m e c h a n g e s o v e r t h e t i m e t h a t y o u ' v e
b e e n D i r e c t o r i n t h e d e a d l y f o r c e p o l i c i e s a n d p r o c e d u r e s ,
n
1 a n d r e p o r t i n g p r o c e d u r e s a n d s o f o r t h ?
2 A. No, I don't think so. I think I've made changes in
3 t h e r e p o r t i n g p r o c e d u r e s . I t h i n k I h a v e c l a r i f i e d , I h o p e ,
4 y o u k n o w , s u f f i c i e n t l y w h a t t h e p o l i c y i s , b u t a s f a r a s
5 I ' m c o n c e r n e d I c h a n g e d n o t h i n g a s f a r a s t h i s b a s i c — w e l l ,
6 I h a v e t a k e n c e r t a i n s t a n d i n g r u l e s u n w r i t t e n , s u c h a s f i r i n g
7 a t j u v e n i l e s , w h i c h I d o n ' t t h i n k y o u w i l l f i n d w r i t t e n
8 a n y w h e r e , b u t i t w a s a p o l i c y , u n w r i t t e n , b u t n e v e r t h e l e s s
9 a p o l i c y o f t h e d e p a r t m e n t . M y i n s t r u c t i o n s w h e n t h a t 1 9 7 9 -
10 Q. ( I n t e r p o s i n g ) N o w , h o w d i d y o u k n o w a b o u t t h i s
11 p o l i c y ? L e t m e i n t e r r u p t y o u a m o m e n t . H o w d o y o u k n o w i t
12 w a s a p o l i c y ?
13 A. T h r o u g h s t a f f d i s c u s s i o n s . T h r o u g h s t a f f d i s c u s s i o n
14 Q. H o w l o n g d o y o u t h i n k t h a t h a d b e e n a p o l i c y ?
15 A. I d o n ' t k n o w . M y i n s t r u c t i o n s t o L i e u t e n a n t K e n o n
16 w e r e t o t a k e a l l t h e e x t a n t p r o c e d u r e s , p o l i c i e s , w r i t t e n
17 a n d u n w r i t t e n , t o c o m e u p w i t h t h e m , t o d i s c u s s t h e m w i t h
18 m y s e l f a n d t h e c o m m a n d s t a f f , a n d t h e n f r o m t h a t w e g a v e h i m
19 t h e i n s t r u c t i o n s o f h o w w e w a n t e d t h e n e w G e n e r a l O r d e r
20 w r i t t e n , w i t h a f u r t h e r i n s t r u c t i o n t h a t i t w a s t o b e w r i t t e n
21 i n s u c h a w a y t h a t i f a t a l l p o s s i b l e t h e r e c o u l d b e n o
22 q u e s t i o n a b o u t w h a t i t m e a n t , b e c a u s e I t h i n k t h a t t h e p r o -
23 b l e m s t h a t w e h a d f o u n d i n t h e p o l i c y w a s , y o u k n o w , s o m e
24 q u e s t i o n a s t o w h a t — a t t i m e s a s t o w h a t t h e p o l i c y w a s , s o
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1 we wanted to make it as clear as possible. But I don't feel
that I changed anything.
& The substance of the policy?
ft. No.
& All right. And in fact the — let me show you
another document which is dated 16 July 1979, and this is
the policy that resulted from your instructions to Lieutenant
Kenon?
A Right. Right.
Q. Now, how did — when you arrived at this policy tell
me who all was involved in formulating this policy in additioiji
to Lieutenant Clyde Kenon is your legal advisor, is that
right?
A Right.
Q- And who else was involved?
A Oh, I would say for sure the entire Command Staff
which I refer to as being Chief Inspector and above, probably
some Inspectors and some Captains. What we do on a major —
& (Interposing) Let me interrupt you one second.
How many people are involved in the Chief Inspector and abovef
A Twelve.
Qi Twelve.
A But what we do on something of this sort, we'll tell
the staff person what we want; that is my Command Staff will
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1 t e l l t h e s t a f f p e r s o n w h a t w e w a n t ; t h a t i s , m y C o m m a n d
2 S t a f f w i l l t e l l t h e s t a f f s u p p o r t p e r s o n , w h i c h i n t h i s c a s e
3 w a s K e n o n , w h a t w e w a n t . T h e n h e m i g h t g o t a l k t o a n
4 I n s p e c t o r , o r h e m i g h t t a l k t o t h e H o m i c i d e B u r e a u C o m m a n d e r ,
5 o r h e m i g h t — h e w o u l d g o t h r o u g h a v e r y e x t e n s i v e p r o c e d u r e
6 o f g e t t i n g i t r e a d y i n d r a f t f o r m . T h e n w h e n i t w a s r e a d y
7 i n d r a f t f o r m — t h i s i s t r u e i n a n y m a j o r O r d e r l i k e t h i s —
8 i t w o u l d c o m e b a c k a r o u n d a n d i t w o u l d c o m e b a c k u p t h r o u g h
9 t h a t C o m m a n d S t a f f , a n d i t w o u l d b e i n i t i a l e d b y e a c h C h i e f
10 I n s p e c t o r , e a c h D e p u t y C h i e f , t h e D e p u t y D i r e c t o r , a n d
11 f i n a l l y i t w o u l d c o m e t o m e , a n d o n i t i t w o u l d n o t o n l y
12 h a v e t h e i r i n i t i a l s b u t i t w o u l d h a v e a n y c h a n g e s a n d a n y
13 s u g g e s t i o n s , a n y p r o b l e m s t h a t t h e y m i g h t h a v e w o u l d b e
14 w r i t t e n i n l o n g h a n d . T h e n I w o u l d t a k e t h a t , I w o u l d r e v i e w
15 i t m y s e l f , p r o b a b l y , a n d I t h i n k i n t h i s c a s e I r e v i e w e d i t
16 w i t h t h e D e p u t y D i r e c t o r a n d t h e t w o D e p u t y C h i e f s . W e w o u l d
17 r e v i e w t h e t h i n g i t s e l f — a n d p r o b a b l y K e n o n w a s i n t h e r e ,
18 I d o n ' t r e m e m b e r b u t I b e l i e v e h e w a s . W e w o u l d r e v i e w t h e
19 r e m a r k s a n d t h e n w e w o u l d g i v e i t b a c k t o h i m w i t h i n s t r u c t i o h s
20 i n r e g a r d t o w r i t i n g t h e f i n a l d r a f t . T h e n t h e f i n a l d r a f t
21 w o u l d d o e x a c t l y t h e s a m e t h i n g a n d c o m e b a c k u p t h r o u g h a n d
22 b e i n i t i a l e d b y a l l p e o p l e , a l l p e r s o n s , a l l C o m m a n d S t a f f ,
23 a n d t h e n a f t e r t h e f i n a l i n i t i a l , m y o w n i n i t i a l , i t w o u l d
24 g o t o b e p u b l i s h e d , a s t h i s i s n o w .
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1 & The 1974 policy listed — you wrote the new policy
we just talked about, the '79 policy?
A. Right.
0. And let me read the list of crimes with respect
to which policy officers can use deadly force to effect
arrest. (A) Kidnapping. Is that on the '79 policy?
A Yes.
& And I'm reading from the '74 policy. (B) Murder
in the First or Second Degree. Is that on there?
A Yes.
0-
A
(C) Manslaughter?
Yes.
0- (D) Arson including the use of fire bombs?
A It just says Arson.
0. (E) Rape?
A It says Criminal Sexual Assault, which I think goes
with the new Criminal Code description of it. It is rape,
but that's what they call it.
Q. Assault and Battery with Intent to Carnally Know a
Child Under Twelve Years of Age?
A I think that comes, once again, under the Criminal
Sexual Assault. You're an attorney and you're more feimiliar
than I am with the new descriptive thing that was issued by
the Legislature.
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0- I don't do any criminal defense work, so I'm not as
familiar with all these crimes —
A- (Interposing) I think it all comes under that.
Q. Assault and Battery with Intent to Commit Rape?
A That once again, I think comes under the Sexual
Assault.
0- Burglary • in First, Second or Third Degree?
A That's on here,
0. Assault to Commit Murder in the First or Second
Degree?
A Okay. Once again I'm not sure. Aggravated Assault
is on here, and I think Aggravated Assault, under the new
Code, includes with intent to commit murder.
Q. And Assault to Commit Voluntary Manslaughter —
A (Interposing) And I think that is under that, also.
Q. And then Armed and Simple Robbery?
A And I think that — it's here as Robbery, but I
think that that also is in line with the new Criminal Code.
O’ ' All right. So the list is basically the same?
A Yes, it is.
Ql The list of crimes?
A Yes, sir.
0. Now, did anyone propose to add to the list any crimesi
which aren't on there that you recall?
0*̂ 0 - 2 3 -
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A.
&
A.
Q.
A.
Qt
A.
0.
A.
&
A.
N o .
They didn't propose to put Grand Larceny back in?
No.
Nobody proposed that?
No.
Or Auto Theft as a separate offense or anything?
No.
Or embezzlement or any of these others?
No.
The major change —
(Interposing) I believe that the original rough.'
draft might have had reference to the fact that those are
felonies, but \ander practice of the Police Department, and
I m not sure that anything is spelled out other than Auto
Theft anywhere in writing, but once again, my instructions
to Kenon were to come up with both the written —— everything
that was written in previous Orders and what the, I guess
you'd say unwritten policy, the standing procedure was. It
seems to me that either in — either verbally or it might
possibly have been written on the draft that it was discussed
that all those were felonies, that they were not felonies
for which this department would use deadly force. This was
a several week procedure to come up with this thing, and we
had many meetings on it, and I'm not sure what was said at
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e a c h m e e t i n g .
0. I n y o u r s t u d i e s a t S o u t h e r n I l l i n o i s h a v e y o u
f o r m e d a n o p i n i o n a b o u t t h e v a l i d i t y o f u n w r i t t e n p o l i c i e s ?
I m e a n i s t h a t a n e f f e c t i v e w a y t o r u n a l a r g e P o l i c e D e p a r t
m e n t ?
A. I h a v e a n o p i n i o n b u t i t w a s n ' t n e c e s s a r i l y f o r m e d
b y S . I . u .
& T e l l m e w h a t y o u r o p i n i o n i s ?
A. W e l l , m y o p i n i o n i s t h a t e v e r y t h i n g , i f a t a l l
p o s s i b l e , s h o u l d b e w r i t t e n d o w n a n d a s c l e a r a s p o s s i b l e ,
Q. T h e r e c o r d s t h a t w e h a v e s h o w t h a t o v e r t h e y e a r s
d e a d l y f o r c e h a s b e e n u s e d a g a i n s t j u v e n i l e s , a n d y o u k n o w ,
y o u ' d h a v e t o l o o k a t e a c h f a c t s i t u a t i o n a n d d e c i d e w h e t h e r
t h e y s h o u l d h a v e k n o w n h e w a s a j u v e n i l e o r n o t , b u t m o s t o f
t h e o f f i c e r s t h a t w e ' v e t a l k e d t o a b o u t t h i s c a s e b a c k i n
1 9 7 2 a n d t h o s e i n a n o t h e r c a s e t h a t w e h a d , t h e W y l i e c a s e ,
w e r e n o t a w a r e t h a t t h e r e w a s a n y p o l i c y a g a i n s t i t , a n d I
k n o w t h a t C h i e f L u x , y o u k n o w , u s e d t o s a y t h a t e v e r y b o d y h a d
t h a t u n d e r s t a n d i n g , b u t e v e r y b o d y d i d n ' t s e e m t o h a v e t h a t
u n d e r s t a n d i n g .
A. I t h i n k t h a t y o u w i l l f i n d i n t h i s d e p a r t m e n t t h e r e
w e r e m a n y a r e a s t h a t w e r e f a r f r o m c l e a r , a n d t h i s i s o n e o f
t h e r e a s o n s t h a t I w a n t e d t h i s t o i n c l u d e e v e r y t h i n g i n
w r i t i n g , c l a r i f i e d t o t h e f i n e s t p o i n t , a n d t h a t i t b e i s s u e d
I M i
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1 t o a l l m e n . T h i s d o c u m e n t h a s b e e n i s s u e d t o e v e r y o n e i n
t h i s d e p a r t m e n t .
Q. N o w , w a s t h a t t h e c a s e w i t h t h e p r e v i o u s p o l i c i e s ?
A. N o . P r e v i o u s l y t h e y w o u l d h a v e b e e n r e a d a t r o l l
c a l l a n d p u t o n t h e b u l l e t i n b o a r d .
Q. I s t h a t y o u r g e n e r a l p r a c t i c e n o w w i t h r e s p e c t t o
G e n e r a l O r d e r s ?
A, G e n e r a l O r d e r s w o u l d o n c e a g a i n b e r e a d a t r o l l c a l l
a n d p u t o n t h e b u l l e t i n b o a r d u n l e s s i t w a s s o m e t h i n g t h a t
I c o n s i d e r e d t o b e v e r y , v e r y s e r i o u s , a n d t h e n I m i g h t a l s o
i n s t r u c t t h a t w e d o e x t r a c o p i e s a n d p a s s t h e m o u t .
Q. B u t t h i s o n e — e a c h p o l i c e o f f i c e r h a s b e e n i s s u e d
a c o p y o f t h i s G e n e r a l O r d e r , o n t h e u s e o f d e a d l y f o r c e ?
A. S u p p o s e d l y , y e s .
Ql A n d h a v e y o u r e v i s e d t h e c u r r i c u l u m a t t h e T r a i n i n g
A c a d e m y i n a n y w a y i n l i g h t o f t h i s n e w p o l i c y y o u h a v e ?
A. Y e s , w e h a v e .
Ql D o y o u i n s t r u c t t h e m c i b o u t t h i s p o l i c y w h e n t h e y g o
t h r o u g h t h e t r a i n i n g c l a s s n o w ?
A. W e l l , w e ' l l d o m u c h m o r e t h a n i n s t r u c t t h e m i n t h i s
p o l i c y . W e h a v e a p l a n t o m a k e o u r o w n " S h o o t - D o n ' t S h o o t
f i l m w h e r e i n w e w i l l t a k e f r o m o u r s h o o t i n g r e c o r d s t h o s e
c a s e s w h i c h c a u s e u s t h e m o s t p r o b l e m , e i t h e r b e c a u s e o f
s e v e r i t y o r b e c a u s e o f b e i n g r e p e a t e d , a n d w e w i l l p l a y - a c t
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n 1 them into a film. I guess you're familiar with a "Shoot -
2 Don't Shoot" firm.
3 Q. Now, that' s a ■—
4 A. (Interposing) That's where an officer is shown a
5 set of circumstances on screen and he has a gun with
6 blanks, and he had to make up his mind whether to shoot or
7 not shoot.
8 0- Did Sixty Minutes run a program on one of these?
9 A. Yes. Yes. But we'll make our own.
10 Ql Did you have any kind of film prior to this Order
11 that you —
12 A. (Interposing) We have the standard "Shoot - Don't
13 Shoot" film, but I don't like it because I don't think it
14 applies itself to what our problems are. It has some situa-
15 tions in there that are just totally removed from anything
16 that we would encounter, but we will require in the future,
17 probably during this next in-service class, that the officer
18 not only pass the P.P.C., which is the straight marksmanship
19 course, he will also have to pass our "Shoot - Don't Shoot"
20 course, which once again will have those situations which we,
21 and that's the Command Staff and the Training Staff, perceive
22 to be our most serious problems. It could be because it's a
23 very, very serious shooting, or because it's one that
24 continues to pop up and cause us problems.
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1 & Does the present "Shoot - Don't Shoot" film- that
you use — who publishes that, by the way?
A. I think it's Riverside Police Department, but it's
very poor and I have objected to this on a national scale.
It's something that is just very, very poor from a lot of
different aspects.
Q. Because it doesn't cover the kinds of situations
that a particular police department might confront, or becausa
it just —
A* (Interposing) Because it covers situations in such
a way that I think it's just a — I think it's a problem.
0- So you're going to revise that? You're going to
come up with your own film?
A. We're going to do our own, and we have a commitment
from the Justice Department that we build — and Doctor
Klyman is presently building a plan format around which any
department can do the same thing, and we've been asked by
Justice to give technical assistance to other departmsnts to
help them develop a combination of P.P.C. and "Shoot - Don't
Shoot" courses. And it will be built basically around this
General Order.
0. The Memphis Police Department has historically and
still does use deadly force essentially in three situations;
self-defense of your officer, defense of other citizens by
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1 t h e o f f i c e r , a n d t o e f f e c t a r r e s t ?
2 A. R i g h t . A f l e e i n g f e l o n .
3 Q. A f l e e i n g f e l o n s i t u a t i o n . A n d a s y o u k n o w t h i s
4 c a s e c o n c e r n s t h e t h i r d c a t e g o r y ?
5 A R i g h t . W e l l , I ' v e g o t t o b e h o n e s t w i t h y o u . I ' m
6 n o t f a m i l i a r a t a l l . I k n o w n o t h i n g w h a t s o e v e r a b o u t t h e
7 c a s e w e ' r e d i s c u s s i n g . I w a s , y o u k n o w , I d o n ' t h a v e a n y
8 h i s t o r i c k n o w l e d g e o f i t , a n d I g e n e r a l l y h e a r d t h e M a y o r
9 d i s c u s s i t , a n d t h a t ' s t h e e x t e n t o f m y k n o w l e d g e o f i t .
10 Ql V 7 e l l , y o u k n o w , i t w a s a n a u t o t h e f t s i t u a t i o n w h e r e
11 s o m e t e e n a g e r s h a d —
12 A ( I n t e r p o s i n g ) I ' v e h e a r d t h a t d i s c u s s e d i n h i s
13 o f f i c e .
14 Q. S o y o u k n o w t h a t m u c h a b o u t i t . I m e a n I ' m n o t
15 g o i n g t o g e t i n t o t h e f a c t s o f t h i s c a s e w i t h y o u . N o w ,
16 w h a t i s t h e p u r p o s e o f u s i n g d e a d l y f o r c e t o a r r e s t s o m e b o d y ?
17 L e t ' s a s s u m e t h a t i t d o e s n ' t h a v e a n y o f t h e o t h e r t w o e l e m e n t s
18 i n i t . T h e r e ' s n o e l e m e n t o f s e l f - d e f e n s e i n v o l v e d . T h e r e ' s
19 n o e l e m e n t o f d e f e n d i n g a n o t h e r c i t i z e n i n v o l v e d .
20 A Y o u a n d I d i s c u s s e d t h a t a t l e n g t h i n t h i s v e r y
21 r o o m s o m e t i m e b a c k , b u t I ' l l r e i t e r a t e .
22 Q. A l l r i g h t .
23 A W e f e e l a d a n g e r o u s f e l o n i s a p e r s o n w h o b y v i r t u e
24 o f h i s a c t i o n s a n d h i s t e m p e r a m e n t a n d h i s p r o p e n s i t y i s a n
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1 individual who, if allowed to escape from whatever crime you
encounter him in, is subject to cause danger, is subject to
be in a situation which will be dangerous in the future.
Q- To either the police officer or to who?
A. Well, to both the police officer and the citizens,
primarily the citizens, but I think you'd have to say to both
that he is a potentially dangerous person, that by virtue of
commiting one of these acts he has proved himself to represen-:
a danger to -the community, which the community I would hope
would include both police and the citizens. It should.
Therefore, if allowed to escape he represents a very clear
future danger. That's the rationale.
0- So the purpose is to —
A. (Interposing) The purpose is to apprehend him.
Q- But when you use deadly force you're also risking
his life?
A. Yes .
Q. And it's not for what he's doing right then, but
it's what he might do in the future, is that essentially what
you're saying?
A No. I think you've got to take it in steps. We're
saying -that we're using deadly force, and we may use a lot of
o-ther methods with deadly force being the last resort to
apprehend this person. And we're saying that the reason we
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1 would go as far as deadly force is because if allowed to
escape this person would represent a danger to the community
in the future, and therefore we would do all of the things
that we would do in some other circumstances> for instance,
if it's someone who's a DWI and driving in a reckless manner,
we would try to cut him off. We would try to call in help.
We would do everything we could to stop him. We would not
use deadly force.
In the case of a fleeing felon who we consider to be
a basically dangerous individual, a person who by virtue of
committing a felony has proved himself to be a basically dan
gerous person, we would go one step further, assuming all
other means were exhausted and use deadly force to apprehend
him. Now, the use of deadly force relates to what he's done
only that by doing whatever he's done he has placed himself
in the category of being a dangerous felon, of having committfid
a felony and therefore being a dangerous person who has to be
stopped with everything up to and including deadly force.
Ql All right. Now, some of the felonies on the list
are inherently dangerous felonies?
A. Yes.
Q. Burglary in the First or Second Degree?
A Right.
Ql But others may not be inherently dangerous felonies,
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d o y o u a g r e e w i t h t h a t ?
A. W e ' v e d i s c u s s e d t h a t , t o o , y e s .
Q. A n d w e ' v e t a l k e d a b o u t T h i r d D e g r e e B u r g l a r y ?
A R i g h t .
Q. A n d h o w t h a t f r e q u e n t l y a c r i m e i s c o m m i t t e d b y
j u v e n i l e s , f r e q u e n t l y u n a r m e d , I ' m n o t s a y i n g a l l t h e t i m e
b u t i t d o e s h a v e a h i g h d e g r e e o f f r e q u e n c y t h a t t h e s e p e o p l e
a r e n ' t a r m e d . T h e y ' r e n o t b r e a k i n g i n t o s o m e b o d y ' s h o u s e ,
t h e y ' r e b r e a k i n g i n t o a b u s i n e s s e s t a b l i s h m e n t .
A W e l l , a s I s a i d t o y o u p r e v i o u s l y , u n f o r t u n a t e l y w e
d o n ' t h a v e s p e c i a l i z e d b u r g l a r s , a n d w e d o n ' t h a v e b u r g l a r s
w h o s p e c i a l i z e i n T h i r d D e g r e e b u r g l a r i e s o n l y , n o r c a n w e
s a y w i t h a n y a c c u r a c y w h a t s o e v e r t h a t t h e f a c t t h a t a n
i n d i v i d u a l i s a j u v e n i l e d o e s n o t — a u t o m a t i c a l l y m a k e s h i m
n o t a d a n g e r o u s p e r s o n . I t h i n k s t a t i s t i c s a n d f a c t s w o u l d
d e f i n i t e l y n o t b e a r t h a t a s s u m p t i o n o u t . S o w h a t w e ' r e
s a y i n g i s t h a t a b u r g l a r , a p e r s o n w h o w o u l d b r e a k i n t o a
b u i l d i n g , w e a r e n o t p r e p a r e d t o s a y t h a t a p e r s o n w h o i s
e n c o u n t e r e d e s c a p i n g f r o m a T h i r d D e g r e e B u r g l a r y i s s i m p l y
a T h i r d D e g r e e B u r g l a r . W e ' r e s a y i n g h e i s a b u r g l a r , a n d
t h a t b u r g l a r s a r e d a n g e r o u s p e o p l e . A n d t h i s o b v i o u s l y c o u l d
b e d e b a t e d , a n d y o u a n d I h a v e d e b a t e d i t . B u t w e ' r e s a y i n g
h e ' s s u b j e c t t o c o m m i t a F i r s t D e g r e e B u r g l a r y m a y b e t o m o r r o w
n i g h t , m a y b e n o t , b u t t h e c h a n c e s a r e t h a t a t l e a s t a n d I
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1 think I could run you through a series of situations. For
example, the burglars who broke into Mrs. Dorris' home, Mrs.
Jewel Dorris' home sexually assaulted her in unspeakable ways
left her tied spread-eagled to a bed for some forty-eight,
fifty hours. She escaped with her life by the hardest. They
were in fact guilty of Third Degree Burlaries before that
event and were apprehended in the course of a Third Degree
Burglary after that event. So I don't think you can cate
gorize persons involved in Third Degree Burglaries as a non-
dangerous person. They may not be.
Ql I agree. Now, what did you do with these people
when you caught them? You didn't take them out and shoot
them, you took them to a jail and charged them with a criminafL
offense —
A. (Interposing) Yeah. Right. Hopefully we don't
take anyone out and shoot them.
Q. Well, I agree that I'm not — I didn't mean to over
state my point. You couldn't just go through your records,
your arrest records, or your conviction records and pick out
an individual with a high degree of Third Degree burglaries
on his card and go out and arrest him because he might
commit another one tomorrow night, although the statistics
are very good that he might?
A. Right.
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1
arrest warrant?
Q. You couldn't go arrest him? You couldn't get an
A.
Q.
A.
No, I could not.
On the basis of that information?
No, I could not.
Q. But what you're telling me is that you shoot him for
that purpose because if he gets away he might commit another
one tomorrow night? Now, isn't that what you're saying?
A. I'm saying we apprehend him and we authorize the
use of deadly force to apprehend him.
& Unless he's thought to be a juvenile, now?
A. Unless he's thought to be a juvenile. That is a
policy which brings about considerable conversation because,
once again, juveniles are increasingly subject to be dan
gerous people themselves.
& But if they're being dangerous in a way that the
officer believes presents a threat to his life or the life
of some other person —
A. (Interposing) Right.
Ql (Continuing) — he's authorized to use deadly force,
isn't he?
A. Absolutely.
Q. But it's only that he's not allowed to use deadly —
the officer is not allowed to use deadly force solely on the
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1
A. Solely on the basis that he's a fleeing felon.
Q. In one of these felony categories that's listed?
A. Right.
Q. Do you think-: you ought to shoot auto theft suspects
if there's no other way to apprehend them?
A. Do I think so? Probably not but I have mixed
emotions on that.
Ql How about embezzlers?
A. No. Statistics would show you that embezzlers very
seldom harm anyone in the course of embezzlement, and the
reason I said I have mixed emotions on auto theft is because
of the fleeing in an automobile representing a clear and
inherent danger, and I — as I say, I'm saying "no", but I'm
telling you I have a reservation about it. By the same
respect I would tell you that I'm not sure in terms-of, and
I think we're talking about danger, in terms of how dangerous
a DWI is, but I would say in the case of DWI or traffic or an
auto theft, and they all three basically fit in the same
category as far as danger is concerned, is that there is
almost always another way to stop them.
Ql But these are — you're talking about people who are
in automobiles who are fleeing?
A. Right.
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basis of the fact that he's commited a crime?
o 1 Q- A l l r i g h t . W h a t a b o u t a f t e r t h e y g e t o u t o f t h e i r
2 a u t o m o b i l e ? L a s t w e e k I t h i n k —
3 A ( I n t e r p o s i n g ) I t o l d y o u w e s h o u l d n ' t — I d o n ' t
4 t h i n k w e s h o u l d . I j u s t s a i d I h a d , y o u k n o w , s o m e t h o u g h t s
5 a b o u t t h a t , t h e s a m e w a y I d o a b o u t j u v e n i l e s .
6 & I u n d e r s t a n d , b u t I m e a n I ' m j u s t t r y i n g t o e x p l o r e ,
7 y o u k n o w , j u s t w h a t i t i s t h a t m a k e s t h e d i s t i n c t i o n . I
8 m e a n t h e b a s i c t h i n g t h a t m o t i v a t e s y o u t o t h i n k t h a t y o u
9 s h o u l d n ' t s h o o t t h e m i s t h a t t h e y ' r e n o t e n g a g e d i n a c r i m e
10 w h i c h o r d i n a r i l y r e s u l t s i n a t h r e a t t o h u m a n l i f e ?
11 A R i g h t .
12 Q. E x c e p t m a y b e t h e D W I ' s m i g h t c o m e c l o s e r t h a n a n y -
13 b o d y i n t h i s c a t e g o r y t h a t w e ' r e t a l k i n g e i b o u t ?
14 A Right.
15 0. B u t a t l e a s t a u t o t h e f t s u s p e c t s o r d i n a r i l y a r e
16 e i t h e r d o i n g i t f o r p r o f i t , o r t h e y ' r e d o i n g i t f o r j o y - r i d i n
17 o r p r a n k s o r s o m e t ^ h i n g , b u t t h e y ' r e n o t o r d i n a r i l y u s i n g a n
18 a u t o m o b i l e i n o r d e r t o t h r e a t e n s o m e b o d y ' s l i f e ?
19 A T h a t ' s c o r r e c t .
20 Qi A n d y o u r e c e n t l y r e p r i m a n d e d a n o f f i c e r . I t h i n k i t
21 w a s m o r e s e v e r e t h a n t h a t . M y c l i p p i n g f i l e h e r e s h o w s t h a t —
22 t h i s i s a C o m m e r c i a l A p p e a l a r t i c l e o f 2 0 D e c e m b e r 1 9 7 9 , t h a t
23 t h e P o l i c e T r i a l B o a r d s u s t a i n e d t w o o f t h r e e a d m i n i s t r a t i v e
24 c h a r g e s a g a i n s t P a t r o l m a n S t e v e B a n d u r a i n c o n n e c t i o n w i t h a n
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2 s u s p e c t t h r e e w e e k s a g o . A r e y o u f a m i l i a r w i t h t h a t c a s e ?
3 N o ? W i t h o u t h a v i n g t o r e a d t h e w h o l e a r t i c l e d o y o u r e m e m b e r
4 w h a t —
5 A ( I n t e r p o s i n g ) W e l l , h e d i d n ' t f i r e t h e s h o t s b e c a u s
6 t h e m a n w a s a f l e e i n g a u t o t h e f t s u s p e c t . T h a t ' s n o t w h y h e
7 w a s r e p r i m a n d e d . H e f i r e d t h e s h o t s b e c a u s e a c c o r d i n g t o h i m
8 t h e m a n w a s t r y i n g t o r u n o v e r h i m w i t h t h e a u t o m o b i l e .
9 0- W h y w a s h e r e p r i m a n d e d ?
10 A H e w a s r e p r i m a n d e d b e c a u s e o f t h e f a c t t h a t t h e y
11 h a d a l l o w e d t h e v e h i c l e t o s t o p a n d t h e i n d i v i d u a l t h e y e n -
12 c o u n t e r e d w a s n o t a c t u a l l y t h e i n d i v i d u a l t h e y w e r e l o o k i n g
13 f o r .
14 Ql B u t i f h e h a d u s e d d e a d l y f o r c e , j u s t t o g i v e y o u
15 a h y p o t h e t i c a l , i f a n o f f i c e r d o e s u s e d e a d l y f o r c e t o t r y t o
16 a r r e s t a n a u t o t h e f t s u s p e c t h e g e t s c h a r g e d —
17 A ( I n t e r p o s i n g ) I d o n ' t t h i n k h e w a s , a s I r e c a l l ,
18 a n d I ' d h a v e t o g o b a c k i n c a s e , t h i s i s o n e o f t h e o n e s t h a t
19 j u s t r e c e n t l y h a p p e n e d , a n d I h a v e a l o t o f o t h e r t h i n g s . A s
20 a m a t t e r o f f a c t i t w a s b e i n g c o m p l e t e d t h a t a f t e r n o o n I h a d
21 t h e m e l e e o n t h e r a c i a l l i t e r a t u r e . I d o n ' t t h i n k h e w a s
22 r e p r i m a n d e d f o r h i s u s e o f d e a d l y f o r c e . I t h i n k h e w a s
23 r e p r i m a n d e d f o r t h e w a y t h e y c o n d u c t e d t h e m s e l v e s i n t h e
24 a p p r h e n s i o n o f t h e i n d i v i d u a l , b u t h e w a s n o t u s i n g d e a d l y
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incident in which he fired five shots at an auto theft
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1 force because the man was an auto theft. He was using
deadly force because according to him the man was trying to
run over him. He was reprimanded, as I recall, for the way
they treated the man once they took him into custody, not for
using deadly force.
Q. I was just exploring a hypothetical, and I didn't
even mean to mention this officer's name because I wasn't
trying to get into the facts of his case, since I don't
represent anybody involved in that.
I've lost my question' now. All right. We were
talking about the purpose behind using deadly force, and
you're telling me that the basic purpose is to prevent him
from getting away and commiting another similar crime or a
worse crime?
A. Commiting a dangerous act in the future.
0- In the future. And this would be even though he
hasn't commited a crime inherently dangerous to people at the
time, at least so far as the police officer on the scene knows
from all the facts that he observes? Even if this suspect --
let's assume he's breaking out of a warehouse or a school at
night, or something. That's a Third Degree burglary, he's
guilty of a felony and he's tried and convicted. But you
authorize the officer to use deadly force in those circum
stances because statistically you think that a lot of people
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n
1 i n t h i s c a t e g o r y c o i m n i t m o r e v i o l e n t c r i m e s i f t h e y d o n ' t
2 g e t a p p r e h e n d e d ?
3 A. I t h i n k t h a t t h a t i s n o t a n i n h e r e n t l y n o n - d a n g e r o u s
4 crime. Suppose he encountered a guard or an individual in
5 t h a t ? T h e f a c t t h a t t h e w a r e h o u s e h a p p e n e d t o b e e m p t y a n d
6 t h e r e f o r e h e e n c o u n t e r e d n o o n e , a n d t h e r e f o r e n o h a r m w a s
7 d o n e t o a n y o n e d o e s n o t m a k e h i m a n y l e s s a d a n g e r o u s p e r s o n .
8 The propensity to commit an act. Suppose that we caught
9 s o m e o n e b u r n i n g d o w n — a r s o n i s a l s o o n t h e t h i n g , s u p p o s e
10 w e c a u g h t s o m e o n e b u r n i n g d o w n a b u i l d i n g w h i c h h a d n o o n e
11 in it, and it was a building away from everything else. He
12 w o u l d s t i l l b e a n a r s o n i s t , b e c a u s e t h e p r o p e n s i t y t o b u r n
13 d o w n b u i l d i n g s , t h e f a c t t h a t t h a t ' o n e b u i l d i n g h a p p e n e d t o
14 b e u n o c c u p i e d , t h e p r o p e n s i t y t o d o t h a t m a k e s h i m a n i n h e r e n j b l y
15 d a n g e r o u s i n d i v i d u a l , a n d I t h i n k t h a t i s t h e i s s u e , i s t h a t
16 what is a dangerous felon? An embezzler is not a dangerous
17 f e l o n . H e i s a f e l o n b u t n o t a d a n g e r o u s f e l o n . A b u r g l a r ,
18 a n d w e d o n ' t — w e d o n ' t s p e c i a l i z e b u r g l a r s i n c a t e g o r i e s .
19 B u r g l a r i e s m a y b e s p e c i a l i z e d , b u t b x i r g l a r s w e d o n ' t f e e l a r e
20 A b u r g l a r i s a d a n g e r o u s f e l o n .
21 Ql Although there are non-dangerous burglars?
22 A N o , I d o n ' t t h i n k s o . I t h i n k a p e r s o n w h o w o u l d
23 commit burglary, you know, is subject to — he is an inherent|.y
24 d a n g e r o u s p e r s o n b y v i r t u r e o f t h e f a c t t h a t h e c o m m i t s
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b u r g l a r i e s .
Q. 1 u s e d t o l i v e i n P a r k w a y V i l l a g e . I ’ v e n e v e r b e e n
r i p p e d o f f a s m u c h i n m y w h o l e U i f e a s I w a s d u r i n g t h o s e
t w o o r t h r e e y e a r s I l i v e d o u t t h e r e , b u t i t w a s m o s t l y k i d s .
T h e y b r o k e i n t o h o u s e s . T h e y b r o k e i n t o — s t o l e m y t o o l s .
M R . S H E A ; T h i s i s o f f t h e r e c o r d .
(Off the record comment.)
& ( B y M r . C a l d w e l l ) T h e r e w a s n e v e r a s i t u a t i o n w h e r e
d e a d l y f o r c e w a s c o n s i d e r e d . I m e a n i f w e c a u g h t t h e s e k i d s
t h e y w e n t t o J u v e n i l e C o u r t . W e g a v e t h e m a l a w y e r . W e g a v e
t h e m a l l t h e d u e p r o c e s s i n t h e w o r l d , a n d t h e n t h e y g o t p u t
i n t h e c u s t o d y o f t h e i r p a r e n t s w h e r e t h e y w e r e t o b e g i n w i t h ,
a n d t l i a t ' s a l l t h a t h a p p e n e d t o t h e m . W e d o n ' t k i l l t h e m .
B u t y o u ' r e s a y i n g t h a t p o l i c e o f f i c e r s a r e a u t h o r i z e d t o k i l l
t h e m i f t h e y ' r e e s c a p i n g — n o t n o w b e c a u s e t h e y ' v e j u v e n i l e s ,
b u t i f t h e y ' r e a d u l t s h e ' s a u t h o r i z e d t o k i l l t h e m ?
A W e l l , I t h i n k t h a t y o u h i t o n a v e r y i m p o r t a n t p o i n t
t h e r e , a u t h o r i z e d t o u s e d e a d l y f o r c e . " W e r e s t o u r c a s e i n
t h e j u d g m e n t o f p o l i c e o f f i c e r s . A p o l i c e o f f i c e r i s s u p p o s e d
t o h a v e j u d g m e n t . A n d I t h i n k t h e i s s u e h e r e i s n o t t h a t h e
i s r e q u i r e d t o u s e d e a d l y f o r c e i n t h e c a s e o f a n e s c a p i n g
b u t t h a t h e i s a u t h o r i z e d t o d o s o , I t h i n k t h a t
y o u w o u l d f i n d m o r e c a s e s o f e s c a p i n g b u r g l a r s w h o i n e f f e c t
s u c c e s s f u l l y e s c a p e d a n d w h o d i d n o t h a v e d e a d l y f o r c e u s e d
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1 a g a i n s t t h e m . I t h i n k t i i a t i f y o u r e s t r i c t t h e o f f i c e r
f r o m t h e u s e o f t h a t d e a d l y f o r c e t h e n y o u ' v e g o t a p r o b l e m .
Qi A l l r i g h t . L e t ' s t a l k a b o u t t h a t . D o y o u k n o w
w h a t p e r c e n t a g e s o f a r r e s t a r e e f f e c t u a t e d b y t h e u s e o f
d e a d l y f o r c e ?
A. W e l l , v e r y f e w b e c a u s e y o u w o u l d f i n d t h a t d e a d l y
f o r c e i s t h e e x c e p t i o n r a t h e r t h a n t h e r u l e . A n d a s I s a y ,
s t a t i s t i c s w o u l d e a s i l y b e a r y o u o u t t h a t — j u s t o f f h a n d ,
j u s t a j u m p a t a n u m b e r , I ' d s a y m a y b e o n e p e r c e n t o r l e s s
o f a l l a r r e s t s i n v o l v e t h e u s e o f d e a d l y f o r c e i n a n y w a y .
M R . . S H E A ; E x c u s e m e . C o u l d y o u c l a r i f y w h a t
y o u m e a n b y " t h e u s e o f d e a d l y f o r c e " ? I s t h a t
u n h o l s t e r i n g y o u r r e v o l v e r o r i s t h a t a c t u a l l y —
Q. ( B y M r . C a l d w e l l ) ( I n t e r p o s i n g ) D i s c h a r g i n g t h e
f i r e a r m i s w h a t I ' m t a l k i n g a b o u t . Y o u k n o w , w e ' v e g o t
s t a t i s t i c s i n t h e W y l i e c a s e c o v e r i n g a b o u t a f o u r y e a r
p e r i o d , a n d I ' d s a y t h a t a t l e a s t n i n e t y p e r c e n t o f t h e m t h e
s u s p e c t e s c a p e d . N o w , h e m i g h t h a v e b e e n a r r e s t e d l a t e r
b e c a u s e o f o t h e r i n f o r m a t i o n t h a t h e h a d .
A. B u t w h a t I ' m s a y i n g t o y o u — t h a t ' s n o t t h e
s t a t i s t i c I ' m r e f e r r i n g t o . W h a t I ' m r e f e r r i n g t o , o f a l l
a r r e s t s m a d e h o w m a n y i n v o l v e t h e u s e o f d e a d l y f o r c e , I
w o u l d s a y i t w o u l d b e l e s s t h a n o n e p e r c e n t , p r o b a b l y l e s s
t h a n a h a l f p e r c e n t . I d o n ' t h a v e t h a t s t a t i s t i c , b u t I k n o w
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1 how many arrests we make, and if you want to even boil it
down to arrests of felons I think you'd still find it less
than — well, let's say you'd find it a minute percentage
point.
Q. That's true. I think when we compile these statistijcs
something like, you know, I don't know exactly, it was
something like a hundred instances of the use of deadly force
against property crime suspects during the same period of
time fifteen thousand property crime arrests were made.
A. I would say that.
0. So we're talking about a very small percentage of
arrest situations in which deadly force is even used. Now,
my question is, let's say there is a hundred in a given
period of time in which deadly force is actually used. Still
a small percent, less than half of those actually result in
the arrest of a suspect. In other words they miss more —
A. (Interposing) You're saying in other words do we
hit at what we shoot at? The chances are, you know, probably
more likely, under the circumstances where deadly force is
used, he will not hit. I agree with that.
Qi I mean if we just look through the incidences that
get coverage in the paper over the past six months, one or
two of those the suspects were hit, but in other instances
like this police officer who was involved in the auto theft
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1 investigation, he didn't hit anybody. I mean that just
happens more often than they hit somebody?
A. Right.
O' All right. So we're down to where — maybe we're
down to a tenth of a percent now of arrests that are actually
made by the use of deadly force?
A Yes.
Q. And a high percentage of those are made because the
victim is killed or seriously wounded?
A Yes.
Q. Now, I'm just talking about the non-violent property
crime suspects, or at least the unarmed property crime
suspects.
MR. SHEA; Excuse me. When you say "unarmed",
does the officer know that he is unarmed at the
time the property crime is being —
Q. (Interposing) Well, these statistics are ones that
Captain Coletta compiled for us and were separated into
those in which he used it for self-defense and defense of
others, and in those in which he just used it for arrest
purposes. He wasn't using it because he thought the suspect
was armed, and all those instances were unarmed. So you know,
I'm not trying to get any general agreement on unarmed or
non-violent or inherently not dangerous property crime suspec|ts
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But given a small percentage of people actually
arrested through the use of deadly force, what I want to know
is what — how does this serve effective law enforcement?
What objective is served by this kind of policy?
A. I think that you can make the exact same argument':
in terms of the fact that — of marksmanship, that if, in
terms of whether or not you hit what you're aiming at, should
you say policemen shouldn't carry guns. I think that that's
the same type of argument, and I think once again what we're
saying-is the officers' prerogative to use deadly force, and
that prerogative covers a whole bunch of other possibilities
also/ most of which are employed. I'm saying as a police
administrator I would be unwilling to remove that prerogative
from the officer, and I said, I think to you before, I've
certainly said it to many others, that if you were to run
a referendum in this city, in this community, overwhelmingly
black and white would not only approve what we now use deadly
force for, they would probably vote to expand it.
Q. In the abstract?
A. In other words I don't — I think that the, you
know, we started the conversation with the feeling of the
black community. I think you could run a referendum in the
black community in regard to a police officer's use of deadly
force in regard to felons, and there's no question in my mind
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1 it would overwhelmingly pass that deadly force should continu
to be used for all felons^ and I don't think they would
restrict it to the ones wa have. That's just an opinion.
Q. Well, it would be a difficult referendum to conduct
and have any meaning to it. If you gave them a fact situatioji
like kids breaking into Snowden School or some public school
and ask them if they thought the police officer ought to use
deadly force with those kids that ran from the police — it
would be a different response than if you asked them if they
ought to shoot a fleeing murder suspect?
A. I'm not so sure that you correctly interpret the
feeling of the community, the black community and the white
community in regard to kids who do something like that. I'm
not sure we agree on that, but that's something we neither
one of us will know. I think, once again, I reiterate that
persons who commit burglaries have proved themselves to have
a propensity to be dangerous and therefore they are dangerous
felons, and therefore we allow the officers' prerogative to
̂use deadly force. We do not require him to use deadly force,
and he probably does not use it more often than he uses it,
but he nevertheless has that right.
Q. Before you got off onto the referendum answer, we
were talking about what a small percentage of arrests are
actually effected by using deadly force in the property crime
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— unarmed property crime suspect category.
A. I would concede it as a very small percent.
Ql And I want to get back to this question because I
want, I really want to press you on just what legitimate law
enforcement objective is served by that policy. Now, it can'
be capturing criminals because you don't capture many that
way,
A
0.
A
Well, nevertheless that's what it is.
That's it? Capturing criminals?
Right.
Ql, Chief Lux used to argue that it deterred other
people from fleeing, the use of —
A (Interposing) I think in a degree it does deter
them. I think that the absence of it would be whatever the
negative of deter is, encourage, I suppose.
Ql And is that still a purpose of the —
A (Interposing) No. You just said it did. That's
not the purpose of the policy. I'm just saying that I agree
with that.
Ql I say Chief Lux argued that it did have a deterrent
effect.
A And I would agree with you that it does, but I'm
saying that's not the purpose of the policy.
Ql You would agree with Chief Lux?
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1 ^ A g r e e w i t h — e x c u s e m e , a g r e e w i t h C h i e f L u x .
2 I t h o u g h t I h a d y o u o n m y s i d e t h e r e .
3 & N o . I n f a c t I ' v e n e v e r s u b s c r i b e d t o t h a t , t h a t i t
4 d e t e r s p e o p l e f r o m c o n u n i t i n g c r i m e s b y u s i n g d e a d l y f o r c e
5 a g a i n s t f l e e i n g s u s p e c t s . I a l w a y s t h o u g h t t h a t w a s a h a r d
6 w a y t o — o n e t i m e t h e d e p a r t m e n t , I d o n ' t k n o w i f y o u ' r e
7 familiar with this, in 1969 Chief Lux issued the first Order
8 p r o h i b i t i n g w a r n i n g s h o t s , a n d y o u s t i l l — y o u r p o l i c y
9 s t i l l i n c o r p o r a t e s t h a t p r o h i b i t i o n ?
10 A Right.
11 & A n d h e d i d t h a t a f t e r s o m e s t u d y i n d i c a t e d i t j u s t
12 w a s n ' t h a v i n g a n y e f f e c t ?
13 A R i g h t .
14 0- I t h i n k o n e p o l i c e d e p a r t m e n t r e p o r t e d t h a t t h e y
15 t h o u g h t i t j u s t m a d e t h e s u s p e c t s r u n f a s t e r .
16 A W e l l , I c o u l d g i v e y o u a p e r s o n a l e x p e r i e n c e o f t h a t
17 0- G i v e m e t h a t .
18 A I w a s c h a s i n g a m a n t h r o u g h a f i e l d a n d s o m e b o d y
19 i n t h e b a c k o f t h e c r o w d s a i d " H a l t " a n d s h o t u p i n t h e a i r
20 a n d I w a s j u s t a b o u t t o c a t c h h i m , a n d h e r a n o f f a n d l e f t
21 m e . I w a s r u n n i n g j u s t a s f a s t a s I c o u l d g o .
22 Ql T h i s w a s w h e n y o u w o r k e d f o r t h e S h e r i f f ' s D e p a r t -
23 m e n t ?
24 A Y e s . I w a s w i t h i n t w o s t e p s o f c a t c h i n g h i m a n d h e
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just ran off and left me.
Q. Now, suppose he'd shot at him and missed?
fl. I suspect that would have probably made him rvm.
& Had the same results?
A. Yes.
0. Chief Lux testified for us in the Wylie case, and
of course, he's dead now, but he felt that there was — one
of the biggest problems he had in curtailing the use of
deadly force by police officers was what he called "peer
pressure." You know, it seemed to be a sort of a macho kind
of thing to use deadly force. Is that a problem in your
judgment now?
A. No.
Q. And that's because you have had more effective
publication of the rules and regulations?
A. I think so.
Q. Does this General Order — do the officers get
reminded of that periodically at roll call?
A No, not at roll call, but they'll get a pretty
extensive course on it each year during in-service training
to include, as I say, the "Shoot - Don't Shoot" film.
0- Would you be satisfied just to have the State law
authorizing the shooting of fleeing felon suspects without
any written orders of any kind?
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A. I'm satisfied with our written orders. I wouldn't
want to go back strictly to State law.
Q. Why?
A. Well, I think State's law is too vague. I think
that State law is not specifically spelled out and therefore
represents a problem or a danger to the police officer that
in a situation he might do something which caused him to be
liable or him to have a problem, and that's one of the reason
that we wanted it spelled out, I wanted it spelled out in
just as fine a detail as possible. So, no, I think the State
let's face it, the State law is mainly, in regard to fleeing
felons, is not in fact a law. It's a series of case Opinions
and therefore it's very, very complicated, and you've almost
got to take it case by case to know what the State law is.
0. But there aren't that many decisions? I think it's
only four or five.
A. No, but they're very complicated decisions, you know
0. Most of them arise in the criminal context, too,
when a police officer is being charged with manslaughter or
something?
A. No. I think that the responsibility of carrying a
weapon and using that weapon is awesome. It's an awesome
responsibility, and therefore we should very closely regulate
it, very closely monitor it, and insure that every officer
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1 w h o i s e m p o w e r e d t o d o t h u s i s v e r y c l e a r u n d e r w h a t c i r c u m
s t a n c e s . I t h i n k t h a t ' s w h y I w o u l d b e , y o u k n o w , I w o u l d
n o t w i s h t o g o a w a y f r o m t h e G e n e r a l O r d e r .
Q- A r e y o u f a m i l i a r w i t h t h e P r e s i d e n t ' s C o m m i s s i o n o n
L a w E n f o r c e m e n t a n d t h e A d m i n i s t r a t i o n o f J u s t i c e a n d t h e
r e p o r t s t h a t w e r e i s s u e d b a c k i n ' 6 7 ?
A. Y e s .
Q. O n e o f t h e m w a s c a l l e d T a s k F o r c e R e p o r t , t o P o l i c e ?
A. R i g h t .
Q- A n d t h e o t h e r w a s c a l l e d t h e C h a l l e n g e o f C r i m e
i n a F r e e S o c i e t y ?
A. I h a v e a c o p y o f b o t h .
Q. A n d b o t h o f t h o s e r e c o m m e n d e d t h a t p o l i c e d e p a r t m e n t s
s h o u l d h a v e d e t a i l e d g u i d e l i n e s o n t h e u s e o f d e a d l y f o r c e ?
A R i g h t .
0- A n d f o u n d t h a t t h e l a c k o f s u c h g u i d e l i n e s i n p o l i c e
d e p a r t m e n t s —
A ( I n t e r p o s i n g ) C a u s e d p r o b l e m s .
0- W a s a p r o b l e m ?
A R i g h t .
Q- A l l r i g h t . W e l l , I u n d e r s t a n d t h e p u r p o s e n o w . T h e
p u r p o s e o f d e a d l y f o r c e , a s f a r a s y o u ' r e c o n c e r n e d i n t h e
c a t e g o r y t h a t w e ' r e t a l k i n g a b o u t , t h a t ' s n o n - s e l f - d e f e n s e
o r d e f e n s e o f o t h e r s , i s t o c a p t u r e t h e p e r s o n b e c a u s e h e
2
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1 might commit a more violent crime the next day or in the
future?
A- Well, because he is a dangerous person and repre
sents a clear danger in the future.
& And it's not because you think it will prevent him
from committing a crime, and it's not even because you think
it will deter him from escaping if you have this kind of
policy?
A. I'n not sure I understand your question. Obviously
you re not going to prevent him from something because he is
in fact fleeing at the point that you have employed that. As
far as deterring him, no. That's not the purpose of the
policy.
0. And it doesn't even —
A (Interposing) And it wouldn't deter him at that
point. I think the deterrent that Chief Lux was referring
to was that it might deter others or it might deter him in
the future, the thought that force might be used against him,
but that once again -- the purpose of the use of deadly force
is to apprehend a dangerous felon when all other means have
been exhausted.
Q. And you identify the dangerous felons by the list
of categories?
A Yes. Right.
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Q.
Pi.
Q-
A.
And auto theft is not among those?
It is not.
And you don't think it should be?
No.
0. What year was your year in law school? Did you go
to Memphis State?
A For one year, and I guess I was there the year of
'66, but I'd have to go back and check that out. I lose track
of time.
Q. It was the year before I went there. The Civil
Rights Commission criticized the curriculum at the Police
Academy for not including programs on community relations and
race relations. Did you accept that as a legitimate criticism?
A Absolutely legitimate.
Q. Have you taken steps to include such courses?
Oh, absolutely. I think that our training, both
as it is being administered and our plans for training —
well, I not only think it, I can tell you they are right at
the verge of being a national model on police training.
& In terms of police —
A (Interposing) But that's my — in every aspect. My
thesis for my Master's Degree will be in the training, be the
use of electives in in-service training. And there's no
question that — I don't think that there is an area of
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1 training that we don't stand out, and I think we're far
ahead of every department, including those on the West Coast
in terms of our programs that will be implemented during
the next year or year thereafter.
Q. And these include programs on race relations?
A. Absolutely. Race relations, pxablic relations,
stress training, bringing the public in and letting them
take part in group discussions. In other words, what we've
done is to get persons from the community, particularly from
the minority community in. They come in with the class of
policemen and actually watch a film on some sort of stressful
situation between the police and the community, between the
police and the minority, and then they discuss from both
sides; the policemen saying, "Look, you know, if they had
just cooperated with us," and the community person saying,
"Well, if you hadn't been so arrogant," whatever. And then a
lot of other things, too. Our training, I think some twenty
to forty hours is now one way or the other related to that.
The Civil Rights Commission and the Justice Depart
ment have both reviewed our present curriculum and find them
not only acceptable in terms of whatever those criticisms
were, but as being, as I say, as being models for the nation
Q. And these are things that you've moved to recently
that you haven't done in the past?
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A. Yes. We hired a professional educator to head up
the training academy, a non—police person, a person well
versed in police training but not a career policeman. I
specifically have instructed and encouraged that we expand
the scope of our training. We now bring people in from out
side of this coxKitry for the command training. Now, I think
command training is just as important as what you give the
patrolman because I think the patrolmen reflect what they
see and feel in the upper ranks, and we have a man here from
the National Police College in England last year, and we'll
have a man here from Israel this year.
As I say. I'll put my training program against any
police chief in this nation. I don't think any of them can
even come close to it. It will be even finer than that.
It will be a national model in every aspect, community
relations, shooting, "Shoot - Don't Shoot", diversity.
0. Do you get any L.E.A.A. money?
A We've got some L.E.A.A. money for our video equip
ment to do our "Shoot - Don't Shoot". I think we will get
some L.E.A.A. money indirectly through main Justice for
development of a format so that these can be employed by
other departments. We get the standard — no, that's not
L.E.A.A. money. We get the standard State supplement.
I'm hopeful that we can get some L.E.A.A. money in
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1 some of these other areas that we're looking at because I
think — and I told the Civil Rights Commission this, I
think training is the key to the elimination of the problems
that we're talking about, whether it be. some shooting that
there was a problem with,and very detailed training on the
General Order makes that purely a problem of policy, and I
hope that we're not — I hope that you're not necessarily
proceeding from a problem of policy but rather from a problem
in regard to a case. Policy is something that the City says,
"Here's the way we want to do it," and then hopefully we
train our policemen:so they follow it. But I do think that
training is the key to it.
0. You've also set up a — since you became Director,
a Police Advisory Commission?
A Right.
0. That's where you and I discussed this subject
before?
A Right.
0- And that's a broad based group of civilians who
meet with you periodically?
A Primarily people who are critical of the department,
or who were.
Q. Have you pursuaded them?
A No. I think they've seen some changes. I think
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1 that they've been a part of some changes. You see, many of
these changes that we're talking about have been, if not
directly, certainly indirectly by virtue of our discussions
and their encouragement and whatever, many of them.
0- Oh, I think you're doing an effective job. The
people who are critical traditionally of the police depart—
ment give you high marks for progress.
MR. CALDWELL; Can we take a short recess?
RECESS
Q. (By Mr. Caldwell) Director Chapman, I just have a
couple more short questions which Mr. Arnold has called to
my attention, some things I want to get kind of specific
about, and we're not just using this as an opportunity to
get to spend the day with you, even though we don't get to
spend much time with you.
We talked about the fact that there was a basis in
fact historically for the animosity, or whatever we want to
call it between the black community and Memphis police
officers?
A Right.
Q. We didn't talk about many examples of what, you
know, what forms that basis, and I'm sure it's a very complex
problem, but you were aware that in 1970 the N.A.A.C.P. had
an Ad Hoc Committee of black elected representatives which
held hearings on the police department?
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1 A. N o . I w a s n o t h e r e .
2 O' T h a t C o i n i n i t t e e ' s r e p o r t , y o u k n o w , m a d e a n u m b e r o f
3 r e p o r t e d f i n d i n g s , o n o ' o f w h i c h w a s t h a t t h e m o s t c o m m o n
4 f o r m o f a d d r e s s b e t w e e n a M e m p h i s p o l i c e o f f i c e r a n d a b l a c k
5 p e r s o n a p p e a r e d t o b e " N i g g e r " o r " B o y " . I n f a c t M a y o r
6 C h a n d l e r s a i d i n o n e o f t h e s e d e p o s i t i o n s t h a t w e ' v e t a k e n
7 f r o m h i m t h a t h e t h o u g h t , y o u k n o w , h e h o p e d t h i s — t h i s
8 w a s , I g u e s s t h e W y l i e d e p o s i t i o n b a c k i n ' 7 5 , a n d h e h o p e d
9 i n t h e f u t u r e t h a t t h e b l a c k c o m m u n i t y w o u l d c o m e t o t h e
10 p o i n t w h e r e i t w o u l d n ' t v i e w t h e p o l i c e o f f i c e r a s j u s t ,
11 y o u k n o w , " H e y , b o y , c o m e o v e r h e r e " k i n d o f r e s p o n s e , b u t ,
12 y o u k n o w , a s a f r i e n d . A n d I s u p p o s e t h a t ' s y o u r g o a l .
13 B u t t h o s e k i n d s o f t h i n g s a r e t h e t h i n g s w e ' r e
14 t a l k i n g a b o u t w h i c h h a v e g i v e n t h e r e l a t i o n s h i p a b a s i s i n
15 f a c t , y o u k n o w , t h e " H e y , b o y , c o m e o v e r h e r e " k i n d o f
16 a p p r o a c h .
17 A Y e s , a l t h o u g h r e a l l y I t h i n k t h a t ' s a n o v e r - s i m p l i f i
18 c a t i o n . I t h i n k t h e r e l a t i o n s h i p b e t w e e n t h i s d e p a r t m e n t
19 a n d t h e b l a c k c o m m u n i t y i s a d i r e c t r e f l e c t i o n o f t h e
20 r e l a t i o n s h i p b e t w e e n t h e w h i t e a n d b l a c k c o m m u n i t y h e r e i n
21 M e m p h i s . I t h i n k t h a t t h e " H e y , b o y " s y n d r o m e e x t e n d e d f a r
22 b e y o n d t h e M e m p h i s P o l i c e D e p a r t m e n t . I t m a y b e l a s t e d t h e r e
23 l o n g e r , b u t l a s t e d t h e r e o n l y b e c a u s e i t w a s p e r c e i v e d b y
24 t h e d e p a r t m e n t a s b e i n g a c c e p t e d b y t h e m a j o r i t y o f t h i s
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1 c o m m u n i t y . I w o u l d l i k e t o t a k e c r e d i t f o r a l l t h e c h a n g e s ,
b u t I t h i n k t h a t t h e c h a n g e s a r e i n f a c t r e f l e c t i v e o f w h a t
w e h a v e a t l e a s t c o n v i n c e d t h e p o l i c e o f f i c e r s t h a t t h i s
c o m m u n i t y e x p e c t s o f t h e m a n d t h e f a c t t h a t t h e y b e l o n g t o
t h e c o m m u n i t y . I m e a n t h a t l i t e r a l l y , b o t h b l a c k a n d w h i t e .
S o I t h i n k t h a t y o u c o u l d t a k e t h o s e p r o b l e m s a n d
w o r k t h e m i n t o t h a t c o n t e x t , b u t I t h i n k t h a t t h a t ' s a n o v e r
s i m p l i f i c a t i o n o f t h e r e a l p r o b l e m .
Q. T h e r e a l p r o b l e m i s t h e c o m m u n i t y p r o b l e m b e t w e e n
t h e w h i t e a n d b l a c k c o m m u n i t i e s ?
A. Y e s .
& A n d o f c o u r s e , d u r i n g m o s t o f t h e t i m e w e ' r e t a l k i n g
a b o u t t h e p o l i c e d e p a r t m e n t w a s a l l w h i t e , o r v i r t u a l l y a l l
w h i t e ?
A C e r t a i n l y r e p r e s e n t a t i v e o f t h e w h i t e m a j o r i t y .
Q- A n d i t ' s s t i l l d i s p r o p o r t i o n a t e l y w h i t e b u t y o u ' v e
m a d e s o m e f a i r l y s i g n i f i c a n t e m p l o y m e n t a n d p r o m o t i o n a l g a i n s
i n t h e l a s t f e w y e a r s , i s t h a t c o r r e c t ?
A W e l l , y e s . B u t o f c o u r s e , a n d I s u p p o s e s o m e p e o p l e
w o u l d a r g u e t h i s ; I t h i n k t h a t t h e r e a l k e y i s t h e p e r s p e c t i v ( j
o n t h e p a r t o f t h e i n d i v i d u a l p o l i c e o f f i c e r a s t o w h a t h i s
r e s p o n s i b i l i t i e s a r e a n d h i s p e r s o n a l v i c e s , p r e j u d i c e s ,
f e e l i n g s m a y n o t e n t e r i n t o t h e p e r f o r m a n c e o f h i s d u t i e s
p r o f e s s i o n a l l y a n y m o r e t h a n t h e b i a s o f a n a t t o r n e y , t h e
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1 b i a s o f a n d o c t o r c a n e n t e r i n t o h i s i f t h e y ' r e g o i n g t o b e
t h e p r o f e s s i o n a l s t h a t t h e y c l a i m t o b e . I t h i n k t h a t t h e
i n d i v i d u a l p o l i c e o f f i c e r h a s a t l a s t c o m e t o t h e r e a l i z a t i o n
t h a t h e i s i n f a c t t h e s e r v a n t o f t h i s e n t i r e c o m m u n i t y
a n d t h a t t h i s d e p a r t m e n t b e l o n g s t o t h e e n t i r e c o m m u n i t y .
A n d I t h i n k t h a t t h e s e a r e t h e r e a l k e y s , n o t t h e r a c i a l
m a k e - u p o f t h e d e p a r t m e n t , a l t h o u g h I t h i n k t h a t t h e r a c i a l
m a k e - u p o f t h e d e p a r t m e n t i n r e t r o s p e c t w a s r e f l e c t e d i n t h e
p r o b l e m s m e n t i o n e d . I t h i n k t h a t t h e r a c i a l m a k e - u p
o f t h e d e p a r t m e n t i s i m p o r t a n t , b u t I t h i n k t h a t i n t e r r a s o f
w h a t y o u ' r e t a l k i n g a b o u t a n d t h o s e p r o b l e m s , I h a v e h a d e q u a l
p r o b l e m s w i t h t h e b l a c k o f f i c e r s i n t e r m s o f t h e b l a c k
o f f i c e r s t r y i n g t o o u t r e d - n e c k t h e w h i t e o f f i c e r s , a n d t h a t ' s
a v e r y p o o r w a y t o p u t i t , b u t I m e a n t h a t ' s l i t e r a l l y w h a t
w e h a d . S o w h a t w e n e e d i s a r e a l i z a t i o n o n t h e p a r t o f a l l
o f f i c e r s , b l a c k , w h i t e , m a l e o r f e m a l e , o f w h a t t h e i r r o l e
i s , a n d o f c o u r s e , t h a t ' s w h a t w e ' v e t r i e d t o d o .
N o w , I ' m n o t s a y i n g t h a t w e ' v e c o m p l e t e d t h a t g o a l
o n e h u n d r e d p e r c e n t , a n d I d o n ' t t h i n k t h a t w e w i l l o v e r a
p e r i o d o f y e a r s b e c a u s e I t h i n k a t t i t u d e c h a n g e s a r e s l o w i n
c o m i n g , b u t I t h i n k w e ' r e o n t h e r o a d , a n d I t h i n k t h a t t h e y
d o r e a l i z e a t t h i s p o i n t . W h e t h e r t h e y d o i t i n p r a c t i c e o r
n o t , b y g o l l y t h e y r e a l i z e w h a t t l i e y ' r e s u p p o s e d t o d o a n d
t h e y k n o w , j u s t a s t h e y f o u n d o u t t h e o t h e r d a y , t h e y k n o w
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1 that when they are caught not doing that, action — remedial
action will be taken. So I don't know — I've talked around
the bush, but I dislike the thing of saying the racial make-u
of the department solves the problems.
Q. I find your answer acceptable, that the racial make
up of the department —
A. (Interposing) It's a fact. It's a fact.
Q- (Continuing) — and what was going on in the
community, and in the community law enforcement was used
primarily as something for white people and black people
were treated as second class citizens historically, is that
correct?
A. Yes, I think, we could say that.
Q. Your answer sort of prompts another question on a
sort of different level, but you talked about you thought
now one of the most important things you were doing in terms
of bringing officers into line with what you want them to be
and what the community wants them to be is their perception
of the Command Staff, and what their policies are, and how
important that is, to communicate with the officer* on the
beat?
A. Right.
Q. And this is also why policy should be written as
opposed to word of mouth and unwritten sorts of policies?
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1
0- So that it will be clear that the people in charge
of law enforcement have this as their policy and that you're
supposed to be carrying out that policy, isn't that correct?
A. Right.
Q. And when you talk about this superiority of written
policies as opposed to word of mouth policies, it's
essentially that kind of thing that we're talking about?
A. Yes. The slipped con.
Q. The what?
A, Slipped con. I Word of mouth.
Q- You were talking about this unwritten policy, I
don't know whether that was your word or mine, but your
feeling was when you developed this policy last summer, this
new General Order on deadly force, now as I understand you
didn't develop this policy, it's sort of a combination of all
of the previous policies?
A. It's evolutionary.
0. Evoluntionary. But your understanding from the
people you talked to was that it had always been sort of an
unwritten policy that you shouldn't shoot at juveniles?
A. It's not my impression. That is a fact that that
was the general impression in this department. Once again,
when you talk about an unwritten policy you can not say for
A. Right.
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1 an absolute fact that every person in the department sees
it or understands it that way, and I suspect that you could
find as many variations of that part of it as you could any
other, but there is no question — from a variety of sources
that that is what it was supposed to be. Whetheruit was
understood that way by everybody I couldn't say.
& Now, the sources you're talking about —
^ (Interposing) We didn't come up with that as a
revolutionary new thing. In other words, my instructions to
Kenon were to take everything, written and unwritten, and to
present it to us, and then for us to sort it out and say
"We'll have this and not have that." Basically we wound up
with the exact same thing except some portions were perhaps
-more minutely gone into than they had before, almost to the
point of change. In my opinion they weren't changed. In
someone else's opinion they might say they were changed,
because I suspect you could find someone on the subject of
juveniles that said, "Well, yeah, it wasn't the policy to
shoot juveniles in this, that and the other situations, but
other ones it was." But nevertheless, that's just a problem
which you mentioned in terms of unwritten policy.
0- The people you got this general impression from were
your Command officers, people who had been aroiind a long time;
A. Command Staff plus Kenon and I don't — as I say,
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1 there were so many meetings on this specific item and the
formation of the shoot team and the training, and you know,
it all goes together, and I can't tell you who was in each
meeting, but it was the overall impression of the Command
Staff that that had been a general — well, maybe policy is
too strong — a general understanding maybe is better.
Qi For ten years, for the last ten years, fifteen years’
A. I don't know that we necessarily discussed a time.
Kenon could probably — he was so intimately involved in
sorting these things out he could tell you.
Ql Well, you know, I've uncovered almost everything in
writing that the City Attorney's office will let me uncover
and I've never seen anything in writing about policy prior .
to this policy which you issued, this General Order you
issued last July.
A. That came from people saying —
Ql (Interposing) That's always been the way — the
understanding?
A, I don't know that I knew about it or didn't know
about it, but it came forward in terms of Kenon's original
general up—draft of policies, written and unwritten.
Q. Did you discuss when you were formulating this new
General Order any differences in the use of deadly force when
it involves using the shotgun as opposed to when it involves
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A. No. But I think that the restrictions — restrictio
is the wrong word. The fact that we investigate each shoot
ing so closely has as a spin-off effect, just statistically
I can show you that the officers are less inclined to use
the long gun now. I mean we just have — well, I say that's
what it is. I'm not sure but I just notice that they seem
less inclined to use the long gun.
0. The shotgun you're talking about?
A. Yes. There are less incidents where a long gun has
been used, and of course, there are less incidents of force
being used, deadly force being used. I think that this is a
direct result of the fact that everyone understands it would
be very closely investigated under a very clear set of guide
lines. There's no "who shot John" about it. It's very clear
Ql I don't recall whether this new policy — while
I'm talking about that let me make these two — maybe I can
make all three of them — this is the first written policy
here? That's dated —
the service revolver?
ns
A.
0.
A.
yes
&
(Interposing) '72. January 20, '72.
You recognize that as the first one?
I recognize it as one of the things that I've seen.
And then the 5 February '74 policy was the last
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1 General Policy on the use of force, the use of deadly force
prior to your policy of 16 July 1979?
Yes. Of course, I think the real key to the con
trol of this thing —
MR. CALDWELL: (Interposing) Excuse me. I'd
like to make these three dociiments exhibits to the
deposition.
(Whereupon, said POLICIES were marked EXHIBIT
1, EXHIBIT 2, and EXHIBIT 3 to the testimony of the
witness.)
A. A real key in addition to what's in there, how
specifically it's spelled out is the formation of a shoot
team and the way that shoot team operates which is virtually
3. mystery homicide. I mean that's the way they investi
gate every shooting even if it's as we had here a while back
where some guy stumbled and his gun tore out of his holster
and in the process of picking it up it discharged. We still
go through it. The only other place that I know of that they
have always done that on a regular basis is on the West Coast
where they virtually do a mock-up of it. It's just like a
mystery homicide. That's the way we look at it.
Q. And that's a wholly separate unit of the police
department down there?
A Yes.
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A.
& How long has that unit been in operation?
Oh, I can't tell you when, months.
Less than a year?
Yes.
Q. So it sort of goes along with the —
A. (Interposing) Well, we had it in part sort of. We
were kind of feeling our way on the thing as to how we wanted
to do it, and then in the course of re-organizing our investi
gative bureau we decided that we would form a full-fledged
shoot team which would not only investigate the discharge of
firearms by an officer, but would also investigate whatever
crime went along with that. For instance, if a suspect is
shot in the course of an armed robbery of a 7-1 1 , they will
investigate the shooting of the suspect, but they will also
investigate the robbery of the 7-11, so that it becomes all
one package with whatever charges or whatever about anyone
who's in that, whether it be the officer, suspect, or what
ever. So it comes under Kenon and Captain Jackson, the head
of Violent Crimes, and it's an integral part. They take
command of a scene when they go there, and the units, as
spelled out in here, are responsible for maintaining that
scene for them.
& Traditionally shootings were investigated by — well
all the ones I know of were the ones that resulted in death,
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1 and they ware investigated by homicide. Were the non-death
shootings also investigated by homicide, or do you remember
how that was handled?
A- Well, since I've been Director they have been
investigated by really a semi-shoot team, a forerunner of
what this is. Prior to that time I don't have any knowledge
of how they were investigated.
Q Are you gathering information now in some sort of
way that you can retrieve it easily and make statistical
analyses? Do you have a computer that you feed in this
information to?
A. We haven't been but we intend, and I've asked them
to put this information on the Crime Analysis Computer, and
hopefully when we get computerated dispatch it will have a
program developed which will spit out the very things you're
talking about; how many times we've discharged, what type of
crimes, how often did we hit, how often did it result in an
apprehension, whatever. It ought to be able to give us that
whole story, which ought to also give us a very clear picture
of what we're doing right or wrong.
̂ impression from some article I read on one
of your visits with the Justice Department that there was some
sort of computer information that they had looked at, or maybe
It was just hand compiled information that they looked at on
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1 the use of deadly force?
2 ^ I don't think there's any.
3 Q- Do you get any periodic reports from your Shoot
4 Team?
5 ^ No. I get reports from the Shoot Team but they're
6 not computer reports.
7 0- Then you don't get like a six month report that says
8 how many instances?
9 A. Yeah, I get that.
10 Q- You get' those?
11 A. Yes. That comes from Kenon. Plus the fact
12 virtually every shooting that has any -- what would be the
13 word I'm looking for, that is extraordinary any way. I mean
14 I don't look at them myself if it's some guy that tripped and
15 discharged his weapon, but if anyone is hit, if an officer
I
18 is hit, if it has anything extraordinary at all the shoot
17 team is advised to notify me immediately. So I pretty much
18 know about everything except the routine deals.
19 & But do you have personnel records on computer now?
20 ^ We're getting ready to have. We have a Federal
21 grant to put personnel records on the computer but we don't
22 have them on yet. I know of no computer records that are
23 capable of giving us anything to do with shootings. First of
24 all, because the records — and it's a real problem with the
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1 records that you've asked for. Kenon, I know, has advised
2 me that they're just simply — they're either non-existant
3 or they're very hit or miss. I mean we'll obviously get what
4 we have, but there are no — see, now each shooting — each
5 time a weapon is discharged, each Shoot Team investigation
6 has its own file number, and it is a file inlitself just like
7 a homicide investigation. Okay. We will then enter those on
8 a computer, but that's from now forward, or at best — well,
9 I suspect we can give you pretty good records back to about
10 the latter part of '76 when I began to tighten down on the
11 keeping of the records. Prior to that time I think you're
12 going to find it very sketchy.
13 & How did I get off on this — talking about shotgun
14 versus the pistol — I mean is the shotgun viewed as a more
15 dangerous weapon?
16 A- No question.
17 Q. It is?
18 A. Absolutely.
19 Q- I think it's one of the old firearms —
20 A (Interposing) Well, I think that no one would
21 argue that with you. A shotgun is probably one of the most
22 dangerous weapons there is.
23 0. Does your new policy speak to the situation about
24 when the officer thinks that he has sufficient information to
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1 apprehend the suspect by means other than the use of deadly
force
A- (Interposing) Yes.
Q. (Continuing) — even if it means the next day?
A. Plus the fact that we go into that pretty specifi
cally. It was gone into in the briefing on this policy, and
it will be gone into even further in terms of the training
they receive. For instance, just what you're addressing,
because you know who the guy is, or you have someone who says
they know who he is, or you have his partner and two others
escape, or whatever, yes.
0. Let me just give you a hypothetical. Let's say you
have a burglary and the officers arrive on the scene and
they catch one guy. They apprehend him coming out the front
door, let's |say, and they've got him in custody. Then they
find out his partner is going out the back door. What would
the policy tell them to do in that situation?
A. The policy would tell them, you know, that there is
another means to apprehend him.
Q. And so they shouldn't use deadly force even if he
might get away in that instance, since they have another
means of identifying who he is?
A. Right. I was just looking to see if — well, just
at a glance I don't see that specific set of circumstances
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1 spelled out in here but xt is spelled out in our training
and in our explanation of what all of it means, encompasses.
Q- We were talking about this collection of cases
which comprise the State law, and as I recall some of those
cases specifically talk about the fact that an officer should
not use deadly force if he can otherwise apprehend the suspecb
even if that means at a later time?
A. Right. I don't see it specifically spelled out.
Q. Is that your professional judgment, too, that an
officer should, in those situations where you have other
means of identifying who the other suspect is, like where
you've got his partner or something —
A. (Interposing) Right.
0- Then it shouldn't be used in those circumstances?
A. Right. It should be very clear. We hope it is.
Q. All right. Now, tell me about what ought to be done
in terms of running down — let's assume you've got a suspect
who has no partner in crime that you've apprehended, and
he's a lone suspect and he's fleeing from you. I mean is
the officer supposed to chase him first? How do you —
A (Interposing) To a degree, but the officer is not
required to beat him in a foot race. I would say certainly
an officer who makes no attempt whatsoever to pursue would,
you know, certainly he would not have exhausted all other
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2 Q. E v e n u n d e r S t a t e l a w ?
3 A. I f h e a t t e m p t s t o p u r s u e a n d t h e i n d i v i d u a l i s
4 o b v i o u s l y f a s t e r t h a n h e i s , o r c o u l d c l i m b a w a l l t h a t h e
5 c a n ' t c l i m b , o r w h a t e v e r . S o h e w o u l d h a v e t o m a k e a n
6 a t t e m p t t o c a t c h t h e p e r s o n . I f h e s a w h i m g o i n g — w e h a d
7 a c a s e w h e r e h e w a s l o o k i n g i n t h e b a c k w i n d o w a n d s a w h i m
8 g o i n g o u t t h e f r o n t a n d h e d i d n o t m a k e a n a t t e m p t t o g o
9 a r o u n d t o t h e f r o n t , h e w o u l d b e w r o n g .
10 Q. H e w o u l d b e w r o n g i n t h a t c a s e ?
11 A. Y e s .
12 Q. L e t m e g i v e y o u t h i s h y p o t h e t i c a l . L e t ' s a s s u m e
13 t h a t a u t o t h e f t i s a c r i m e u n d e r w h i c h d e a d l y f o r c e i s —
14 f o r w h i c h d e a d l y f o r c e i s a u t h o r i z e d t o a r r e s t t h e f l e e i n g
15 s u s p e c t . T h e p o l i c e o f f i c e r s s t o p t h e c a r a n d t e l l t h e
16 p a s s e n g e r s o f t h e c a r t o g e t o u t w i t h t h e i r h a n d s u p , a n d
17 o n e o f t h e s u s p e c t s f l e e s .
18 A. A n d h e h a s t h e r e s t o f t h e m i n c u s t o d y ?
19 Ql H e h a s t h e o t h e r o n e i n c u s t o d y . L e t ' s s a y t h e r e
20 w e r e t w o i n t h e c a r . H e h a s t h e o t h e r o n e i n c u s t o d y .
21 S h o u l d a i i o f f i c e r u s e d e a d l y f o r c e i n t h o s e c i r c i i m s t a n c e s ?
22 A. I ' v e a l r e a d y s a i d , y o u k n o w , i f h e h a s o n e i n
23 c u s t o d y h e w o u l d n o t .
24 Q. A l l r i g h t . N o w , l e t ' s s u p p o s e h e ' s b y h i m s e l f , t h e
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1 person who stole the automobile is by himself. He's driving
the car and the officer stops the car and says, "Get out
your hands up," and he jumps out and takes off running.
Now, what should the officer do in that circumstance?
A. He makes, you know, an attempt to catch him. If he
does not see another reasonable way to stop him, that is
another car, he knows another one is around the corner, he
knows he's going to run into a dead end alley, or whatever,
then he would be authorized to use deadly force.
Q- But after he exhausts these other alternatives?
A- He has to exhaust the other alternatives either by
act on his part or by reasonable elimination of them.
0- Well, let's suppose in a hypothetical, the last
hypothetical I gave you, there is a single person in the car.
The police officer approaches the car from the passenger side
of the stolen vehicle and tells the driver to get out. The
driver jumps out and runs and the police officer then has a
number of options. I'That are those options he has?
A. Well, I was going to say you'd have to give me more
than that. I'd have to know where the car was stopped, where
the guy was running to, who else was there, and who. else was
subject to be there. You know there are all — I'm just
saying that the officer in his explanation to the Shoot Team
at this point has to explain why he felt those reasonable
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1 means had been exhausted. I don't think that I could
immediately come back and tell you he was right or wrong
without knowing every detail, you know, like I say, where
was he running to? Was he running into some bushes, was he
running down the street, was he running into an apartment
building?
& Well, let's try to narrow it. Let's say he was —
let me just use a drawing here. Allright. Let's say this
was a stop sign here. (Indicating) And I'll make this west
and this will be east, this will south and this will be north
MR. SHEA: Which one is Florida and which one
is Gage?
MR. CALDWELL: No, this is a hypothetical.
A What really matters is what else is around there,
what time of the day or night.
0- (By Mr. Caldwell) There are buildings down this
street here, the street going to the south.
A Just business buildings?
0. Business buildings, right. Now, right down here
there's an alley. (Indicating)
A Okay.
0- It goes back. The suspect's car stops here at this
stop sign. At some point in there there was a car in front
which pulled off while the whole thing was going on. The
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1 police officers come up behind this car, and the officer —
A. (Interposing) Goes to the passenger side.
& Comes to the passenger side.
A. Okay. He has another officer with him?
0- He has another officer with him who is using a radio
to communicate. He was getting out of his car and was using
the radio to give the dispatcher' a location and what's going
on report. The driver suspect leaps from his car and starts
running down this street. (Indicating)
A. Down the sidewalk?
0- Down the sidewalk.
A. And the other officer is still behind the wheel in
the squad car?
Q. This officer is still on —
A. (Interposing) But the other officer is still behind
the wheel of the squad car?
0- Well, he's outside but he also fires one shot.
A. Well, it makes a difference.
O’ All right. Let's assume this officer is out of his
car, the officer who's driving the squad car.
A He's not behind the wheel of the squad car?
0 He's not behind the wheel. Let's assume he's out of
his car. This officer runs up to the side of the car, says
Get out with your hands up." The driver of the car jumps out
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1 and starts running in the southerly direction that I've
indicated.
MR. SHEA: Well now, wait a minute. Let's
put this in the proper perspective. The corner of
the building is between this officer and where the
suspect is running, and if he gets around that
corner he's gone.
A I'm judging this case is what you're telling me.
MR. SHEA: Now, this man —
MR. CALDWELL: (Interposing) You know this
is my hypothetical. You're going to get your hypo
thetical .
MR. SHEA: All right. Well, I get the hypo
thetical' later.
A I think Shea is definitely guilty. All right. Did
either one try to chase him?
Q. (By Mr. Caldwell) Neither one, in the circumstances
or not in the hypothetical I'm giving you. Neither one tried
to chase him. The officer on the passenger side of the stolejn
car, by the time the suspect has reached this sidewalk here
fires a warning shot into the side of this building, and the
building survived, but you know, it was no small miracle
apparently, and then shot twice at the fleeing suspect as he
continued to run without making any effort to chase him.
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1
& N e i t h e r o n e . A n d i n t h e m e a n t i m e t h e o f f i c e r w h o
w a s d r i v i n g t h e c a r w h o I h a v e s i t u a t e d h e r e s t a n d i n g o u t
b e s i d e t h e c a r f i r e d o n e s h o t a t t h e s u s p e c t b e f o r e h e r o u n d e |
t h e c o r n e r h e r e o u t o f t h i s o f f i c e r ' s l i n e o f v i s i o n ?
A. W e l l , I w o u l d s a y t h a t u n d e r t h e G e n e r a l O r d e r t h a t
w e i s s u e d , u n d e r t h e w a y t h a t t h a t c a s e w o u l d b e j u d g e d t o d a y ,
p r o b a b l y t h e o f f i c e r s w o u l d h a v e b e e n a t f a u l t , b u t I t h i n k
t h a t t h e r e a r e u n d o u b t e d l y a n y n u m b e r o f , y o u k n o w , p o s s i b l e s
t h a t — a s I s a y , t h a t ’ s t h e p u r p o s e f o r h a v i n g i t i n v e s t i
g a t e d i n s u c h m i n u t e d e t a i l . I m e a n m i n u t e d e t a i l , t h a t
c o r n e r s a n d p r o j e c t i o n s a n d o n - c o m i n g t r a f f i c , a n d I m e a n a n y
n u m b e r o f t h i n g s w o u l d a l l b e e x h a u s t e d . I w o u l d s a y i n t h e
v e r y s i m p l e h y p o t h e t i c a l y o u ' v e g i v e n m e , n e i t h e r o n e o f t h e m
a t t e m p t e d t o r u n a f t e r h i m , n e i t h e r o n e o f t h e m a t t e m p t e d t o
g o j u m p i n t h e c a r . N o , y o u k n o w , I ' d s a y j u d g e d b y o u r
d e a d l y f o r c e p o l i c y t o d a y t h e y w o u l d b e w r o n g .
0- W o u l d t h a t a l s o b e i n a c c o r d a n c e w i t h y o u r p r o f e s s i o n a l
j u d g m e n t a b o u t w h a t o u g h t t o b e d o n e i n a s i t u a t i o n l i k e t h a t ?
W e l l , n o w , t h a t ' s a n o t h e r t h i n g . P r o f e s s i o n a l j u d g -
T i e n t i s g a u g e d b y t h e r u l e s e x t a n t a t t h a t t i m e a n d w o u l d b e
s o m e t h i n g e l s e a g a i n .
X I u n d e r s t a n d , b u t I ' m t a l k i n g a b o u t w h a t y o u —
ft- ( I n t e r p o s i n g ) I w o u l d s a y t h a t t h e y w e r e w i t h i n t h e -
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A- Neither one tried to go get in the car?
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deadly force and all the study you've done on the subject is
that or is that not a proper use of deadly force, in your
judgment?
MR. HOLMES: Are we talking about today or
are we talking about 1972?
Ql (By Mr. Caldwell) Any time, talk about 1816.
A Well, I would say that the two things that bother
me about it is neither one of them attempted to give chase,
neither one of them tried to go jump in the car, which if
he's running down the street, that would be my first
inclination, but there may have been a reason they couldn't
do that. I don't know. I'm looking at it as you gave it to
me.
Ql All right. But as I gave it to you you think it was
an improper use of deadly force?
A Well, I wouldn't go that far but I would say that
there are a couple of things that I would be very troubled
that they didn't do, and so I, you know, I'd have to say
"̂’Jhy didn't you do it?" and they might have the best reason
in the world why they didn't do that, and if they didn't —
you know, that's why I say I don't think that you — I think
that the use of deadly force is something that being judged
proper or improper is based on all the factors, and I think
Ql (Interposing) Given what you know about the use of
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1 t h a t w h a t w e d o i s c o m e u p w i t h a s e r i e s o f q u e s t i o n s . " W h y
2 d i d n ' t y o u d o t h i s ? W h y d i d n ' t y o u d o t h a t ? W h a t d i d y o u
3 t h i n k ? " F o r i n s t a n c e , I c a n g i v e y o u a c a s e , t h e S n o w d e n
4 S c h o o l c a s e i s a p e r f e c t e x a m p l e , w h e r e h a d y o u s h o w e d m e
5 t h e S n o w d e n S c h o o l c a s e , w h i c h t h e y d i d o n a p i e c e o f p a p e r ,
6 h e w a s w r o n g , c o l d t u r k e y w r o n g i n t h e u s e o f d e a d l y f o r c e .
7 B u t w h e n y o u h e a r d t h e o f f i c e r ' s e x p l a n a t i o n , a n d i f y o u
8 b e l i e v e d t h e o f f i c e r , w h i c h t h e T r i a l B o a r d d i d , a s t o w h a t
9 h e b e l i e v e d , s e e — i n o t h e r w o r d s , i f I c o m e u p t o y o u a n d
10 I h a v e m y h a n d i n m y p o c k e t a n d t e l l y o u t h a t I ' m g o i n g t o
11 k i l l y o u , i f y o u r e a l l y b e l i e v e t h a t I ' v e g o t a g u n i n m y
12 p o c k e t a n d t h a t I r e a l l y a m g o i n g t o k i l l y o u , t h e n t h a t
13 p u t s i t i n a w h o l e d i f f e r e n t p e r s p e c t i v e . S o I ' d s a y t h a t ,
14 y o u k n o w —
15 Q. ( I n t e r p o s i n g ) O h , I a g r e e . B u t h e r e n o b o d y i s
16 c l a i m i n g i n m y h y p o t h e t i c a l , o r i n f a c t , t h a t t h e y w e r e i n
17 f e a r o f t h e i r l i v e s .
18 A. O h , I d o n ' t t h i n k t h a t . I ' m j u s t s a y i n g t h a t t h e
19 t w o i m m e d i a t e q u e s t i o n s t h a t I w o u l d a s k , a n d I ' m s u r e t h e
20 S h o o t T e a m w o u l d a s k , w o u l d b e w h y d i d n ' t t h e y g i v e c h a s e
21 a n d w h y d i d n ' t t h e o t h e r o f f i c e r r u n b a c k t o t h e c a r ? N o w ,
22 t h e r e m a y b e a r e a l g o o d r e a s o n f o r t h a t .
23 Ql A l l r i g h t . N o w , l e t m e g o a s t e p f u r t h e r i n r a y
24 h y p o t h e t i c a l . L e t ' s s u p p o s e t h i s o f f i c e r h e r e w h o I ' v e s h o w n
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1 at the driver's side of the stolen — I mean the passenger
side of the stolen automobile, when you ask him the question
"Why didn't you chase after the suspect before you opened
up with your shotgun?" He says "Because the car was between
me and the suspect. I would have had to run around the car."
Now, does that add —
A- (Interposing) Not really.
Q- That doesn't add anything?
A. No.
Q. Suppose that's his sole explanation? Is it a proper
use of deadly force?
A. Not under today's policy I don't think. In all
honesty I don't think that's a good shooting, giving it to me
f
as you've given it to me, but there may be other things.
Q- All right. Now, you're going to go and ask this
officer here, "Why didn't you chase after him?" i mean the
one standing beside the —
A (Interposing) Well, I would say this, that in a two
man car it would not seem reasonable to me for both officers -
you know, in other words — and that makes a big difference,
it's a big difference between a one man car and a two man
car. It would seem to me that the proper procedure is this
one give chase, the other one get in the car and help him to
chase, and then if he rounds the corner in the alley and he
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1 s t i l l h a s n ' t s t o p p e d a n d t h e y d o n ' t t h i n k t h e y ' r e g o i n g t o
2 c a t c h h i m b e c a u s e t h e a l l e y i s b l o c k e d a n d t h e c a r w o n ' t g o
3 t h r o u g h i t o r w h a t e v e r , t h e n t h a t w o u l d b e a n o t h e r m a t t e r .
4 N o , I d o n ' t t h i n k i t ' s a g o o d s h o o t i n g a s y o u ' v e e x p l a i n e d
5 it.
6 & Y o u m e a n y o u d o n ' t t h i n k i t ' s g o o d p o l i c y t o s h o o t
7 i n t h o s e c i r c u m s t a n c e s ?
8 A. I don't think it would fit under the policy of our
9 p r e s e n t r u l e s .
10 Q- N o w , i f t h i s o f f i c e r h e r e t o l d y o u , t h e o f f i c e r
11 d r i v i n g t h e p o l i c e c a r , a s I t o l d y o u i n m y h y p o t h e t i c a l , h e
12 f i r e d o n e s h o t a t t h e s u s p e c t j u s t b e f o r e h e w e n t o u t o f
13 s i g h t a r o u n d t h e c o r n e r . N o w , h i s e x p l a n a t i o n , a s s u m e f o r
14 t h e p u r p o s e s o f m y q u e s t i o n , i s t h a t " I m i g h t h a v e r u n a f t e r
15 h i m b u t I w a s a f r a i d I ' d g e t s h o t b y m y p a r t n e r w h o w a s
10 o p e n i n g u p w i t h t h e s h o t g u n . " N o w , w o u l d t h a t m a k e y o u f e e l
17 A. ( I n t e r p o s i n g ) N o w , t h a t ' s a d a m n g o o d e x p l a n a t i o n .
18 H o w e v e r i t s t i l l d o e s n ' t e x p l a i n w h y h e d i d n ' t g o g e t i n t h e
19 car.
20 & N o w , l e t m e a d d o n e m o r e f a c t t o m y h y p o t h e t i c a l .
21 T h e d r i v e r o f t h e s t o l e n a u t o m o b i l e i s n o t a l o n e b u t h a s a
22 p a s s e n g e r i n t h e f r o n t s e a t w i t h h i m , w h o d o e s n o t g e t o u t
23 a n d r u n . T h a t w o u l d n ' t f i t t o d a y ' s p o l i c y a t a l l t o u s e
24 d e a d l y f o r c e i n t h o s e c i r c u m s t a n c e s , w o u l d i t ?
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M R . C A L D W E L L : I w a n t t o m a k e t h i s c h a r t t h a t
I ' v e b e e n u s i n g h e r e a n e x h i b i t .
( W h e r e u p o n , s a i d C H A R T w a s m a r k e d E X H I B I T 4 t o
t h e t e s t i m o n y o f t h e w i t n e s s . )
M R . C A L D W E L L : N o f u r t h e r q u e s t i o n s .
No.
C R O S S E X A M I N A T I O N
B Y M R . S H E A :
0- L e t m e e x p l a i n m y h y p o t h e t i c a l t o y o u , w h i c h i s a
f a c t u a l s i t u a t i o n t h a t ' s u n d e r d i s c u s s i o n . T h e p o l i c e o f f i c e r
t h e r e w a s a n a u t o m o b i l e , u n k n o w n a u t o m o b i l e s t o p p e d a t t h e
i n t e r s e c t i o n o f G a g e a n d F l o r i d a .
A R i g h t .
Q- T h e a u t o m o b i l e t h a t h a d b e e n s t o l e n a n d o c c u p i e d b y
t w o i n d i v i d u a l s s t o p p e d b e h i n d i t . T h e p o l i c e o f f i c e r i n
t h e i r s q u a d c a r s t o p p e d b e h i n d i t . I 'J h e n t h e o f f i c e r g o t o u t
o n t h e p a s s e n g e r s i d e a n d w e n t u p t o t h e p a s s e n g e r s i d e
t h e r e w a s a p a s s e n g e r s e a t e d t h e r e , a n d t h e o f f i c e r d i d n ' t
k n o w w h e t h e r h e h a d a g u n , w a s g o i n g t o s t a b h i m i n t h e b e l l y
o r w h a t —
A ( I n t e r p o s i n g ) R i g h t .
Q. ( C o n t i n u i n g ) — a n d h e t a p p e d o n t h e g l a s s w i t h t h e
s h o t g u n a n d s a i d , " Y o u ' r e u n d e r a r r e s t . H a l t " o r w h a t e v e r
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it was. The driver gets out and —
A. (Interposing) Bolts.
Q. (Continuing) — runs in the direction of the
buildings.
A. Right.
Q. This vehicle somehow or another at some time decamps
The officer who is standing on this side doesn't know whether
the car is there or not. He can't run front, he can't run
behind because he doesn't know, according to him.
The officer fires a warning shot into what he
thought was a blank wall but it turns out it was the upstairs
window that was boarded over. The second shot was when the -
A. (Interposing) When he was rounding the corner.
Q. When he was rounding the corner, and the third shot
was after he had gotten around the corner. This officer was
working the radio in the car. He got out and was giving
their position and everything like that when this incident
was taking place. He then was afraid that if he pursued
that he would run into the line of fire of this officer.
This automobile after the driver exited, pulled away and
the officer was under the impression that the passenger had
gotten under the wheel and was driving away. He then turned
and fired at this vehicle which was leaving. He did not have
this passenger in custody.
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A. That makes a bia difference.
Q. Then after the — well, under that factual situation
based on the policy that was in effect in 1972, did the
officer operate — act in accordance with instructions?
A. Probably so, yes.
MR. SHEA: That's Exhibit 5.
(Whereupon, said DIAGRAM was marked EXHIBIT 5
to the testimony of the witness.)
MR. SHEA; That's all.
R E D I R E C T E X A M I N A T I O N
B Y M R . C A L D W E L L :
Ql There are several flaws in Mr. Shea's hypothetical,
one of which is that this kid who was the passenger in the
stolen vehicle did not immediately take control of the car
and drive it away. I mean it doesn't seem very likely that
he could have been in the same place the passenger was, so
he did that while all hell was breaking loose outside. That'
when he tried to get away with the car, after this officer
was shooting. The question is should that officer have used
deadly force to try to stop this fleeing suspect when he had
the passenger in the stolen automobile right under his car?
I mean he was standing right next to the window with his
shotgun where this other passenger was situated.
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1 Well, I've got to tell you that — back to the
Snowden School thing and all the drawings notwithstanding,
a lot would depend on the officer's statement, and I think
the Shoot Team relies heavily on both officer's statements
as to what they saw, what they perceived was going on, and
as I say, you know, you give it to me one way, it's a bad
shooting, but the officer might explain to you that he really
didn't feel that he had that person in custody and that, you
know, they're going in different directions. I've got to say
that it would depend on the officers' statements and what
the actual situation was as they saw it, not what the actual
situation was, but the situation as they saw it.
I've got to tell you under our rules today I think
there would be a lot of questions about that shooting. My
knowledge of the rules in '72 though’, I don't.
MR. CALDWELL; No more questions. Thank you.
AND FURTHER DEPONENT SAITH NOT.
(SIGNATURE WAIVED)
STATE OF TENNESSEE
COUNTY OF SHELBY
Sworn to before me this 27th day of December, 1979.
d l
Linda Thomas
MY COMMISSION EXPIRES:
May 24, 1980
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1001
CERTIFICATE OF COURT REPORTER
STATE OF TENNESSEE
COUNTY OF SHELBY
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I, Linda Thomas, certify that the above and
foregoing deposition was taken by me in shorthand, and
taped, and the questions and answers thereto were reduced
to typewriting under my supervision and that the foregoing
represents a true and correct transcript of the deposition
given by said witness.
I further certify that I am not related to nor
employed by counsel or any of the parties in this cause
of action and have no interest in the outcome of same.
/ • ?' ..
NOTARY PUBLIC & COURT REPORTER
MY COMMISSION EXPIRES;
May 24, 1980
mo::
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1
EXHIBIT 1 - POLICY - INTRODUCED AT PAGE 69
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C3TY OF E P H
1 iS3T E F - O F F s C E
iV̂ E W O R A rj 0 U W
I O: Aijij PERSONI'iiijL
FIELD & STAFF OPERA.TIONS
FROM; CHIEF BILL PRICE
DATE: January 20, 1972
SUBJECT: "USE OF FIREAR̂ -'IS"
Order 0-72-6
I. PURPOSE - The purpose of this departmental order is to defiiie
the circumstances under which deadly force and non-deadly force may be
used to prevent an offense from being committed and to effect an arrest.
As used in this order, DEADLY FORCE means force calculated to cause
serious physical injury or death. NOU-DEADLY FORCE is any other physi
cal force including the use,of the night stick and chemical mace or
similar v̂ eapons.
II. PROCEDURE - The discharge of any firearm by police personnel
accidental or intentional v/ill be reported by letter to the commanding
officer as soon as possible after such discharge, vfhether it be on duty
or off duty. A copy of this letter shall be sent to the Chief of Police,
Chief of Field and Staff Operations, Internal Affairs Bureau, and the
Firing Range.
In the event of an injury or death, the officer involved will
notify his commanding officer immediately. It shall be the responsibility
of the cormianding officer to notify immediately the Homicide Bureau and
the Internal Affairs Bureau. The commanding officer shall secure the
scene.
The officer involved will report to the Police Range v;ithin
three days, unless health prevents it, for the purpose o-r b̂ in̂ - inte-̂ -
1^0-4 ^
Page 2 - "USE OP FIREAPS^S"
vie'ved as to the circumstances of the discharge. This policj' applies
only to the discharge of firearms covered by this order.
NOU-DEADLf r'DRCE - An officer may use non-deadly force '.■/hlch is
reasonably necessary to effect an arrest or prevent or attempting to pre
vent the escape from custody of a person whom he reasonably believes to
have committed an offense; reasonable force may be used to the extent trial
the ofj.icer reasonably believes such to be necessary to defend himself or
a third person from what he reasonably believes to be the use or imminent
use by the suspect of non-deadly physical force.
IV. DEADLY FORCE - Deadly force may be used v;hen after an officer has
exhausted all other reasonable means to apprehend or otherwise prevent
the commission of an offense and;
A, 1) It is in defense of himself from death or serious bodilv
injury when attacked or,
2) It is in the defense of another person from death or
serious bodily injury when attacked or,
3) There is a substantial rxsk that the person whose arrest
is sought will cause death or serious bodily harm if his apprehension is delayed.
B, The offense committed or being coimnitted by the suspect is:
C,
1) “ lelony or an aooempt to commit a. felony involving the
use or attempted us.e or threatened imminent use of physi
cal force against any person or,
2) Kidnapping, murder in the first or second degree, voluntary
manslaughter, arson, arson involving the use of firebombs,
rape, assault and battery v/ith intent to carnally knov; a
child under twelve years of age, assault and battery with
intent to commit rape, burglary in the first, second or
third degree, grand larceny, assault to commit murder in
the first or second degree, assault to commit voluntary
mianslaughter, armed robbery, robbery, or any attempt to commit such crimes.
The offense committed or attempted by the suspect is a felon •
in the course oi resisting arrest or attempting to escaoe
froiu custody the person is armed v/xth a firearm or other deadly
v/eapon or the officer reasonably believes the suspect to be
armed with a firearm or other deadly weapon.
Page 3 -- "USE OF FIREAPaMS'
V. FIRiijAî j’iS - f ii’earms shall not be discharp’ed;
A.
B.
C.
As warning shots; or
Froma moving vehicle or to stop a fleeing vehicle exceot a- proviaed for in Paragraph IV; or
The officer does not have a clear field of fire and cannot be
reasonably certain that the suspect will be hit and the ooten-
tial for harm to innocent bystanders or their pronert’̂ is great. ^ ^
VI. Deadly force shall not be used in the follov/ing circiuTistances :
A.
B. arrest of any person for any misdemeanor offense;
lo ex fee o an arresu of any person for escape from, the commissio of any misdemeanor offense.
BILL PRICE
CHIEF OF POLICE
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E X H I B I T 2 - P O L I C Y - I N T R O D U C E D A T P A G E 6 9
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M E O V i P H i S P C U C a D E P A R T M I I N T
&7\, n
NUMBEP: 5-74 DATS: 5 February 1974
SUBJECT; USE OF FIREARMS AND DEADLY FORCE
1. PURPOSE. ' j. .
To de f ine circumstances under which DEADLY FORCE and N0N-*DE^L_Y.
FORCE may be used to prevent the commission Pf an of fense an^^to
e f f e c t an a r r e s t .
2. BACKGROUND.
a. Def1n 1 t io n s .
As used In th is o rde r , DEADLY FORCE means the discharge of
a f i r e a rm ; or the use o f force by o ther means ca lcu la ted to
I n f l i c t ser ious b o d i ly I n ju r y or death.
NON-DEADLY FORCE means the use o f force by methods, i n c lu d
ing a n ig h t s t i c k or s im i la r weapon, not ca lcu la ted nor intended
to I n f l i c t ser ious b o d i ly I n ju r y or death.
b. Add!I c a b l l l t y . ,
The procedures def ined In th is order apply to the use of
f i rearms under the fo l lo w in g clrcumstances i\
(1) S i tu a t io n s Invo lv in g the use o f f i rearms by d e p a r t
mental personnel In the l i n e o f duty In vo lv in g the preven
t io n o f a n of fense or apprehension o f an o f fender whether
or not death or a wounding occurs as a r e s u l t .
(2) In any case In vo lv in g the acc identa l or neg l igen t
discharge o f f i rearms In vo lv in g departmental personnel in
the l i n e o f duty not covered under sub-paragraph (1) above.
ACTION.
a. Non-deadly Force.
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(1) E f fe c t an a r r e s t ;
(2) Prevent the escape from custody o f a person who is
reasonably suspect o f having committed an o f fense ; or to
(3) Defend one's s e l f or another In cases not Invo lv in g
ser ious bod i ly I n ju r y or death.
b. Deadly Force.
DEADLY FORCE may be used in the fo l lo w in g circumstances only
a f t e r a l l o ther reasonable means to apprehend or otherwise prevent
the o f fense have been exhausted:
(1) Self -Defense.
An o f f i c e r may use DEADLY FORCE when i t is in the
defense o f h imse l f or another from ser ious bodily i n j u r y or
death and the th re a t of serious bod i ly i n ju r y or death is
rea l and immediate.
(2) Felonies Invo lv in g the Use or Threatened Use of Physical
Force.
An o f f i c e r may use DEADLY FORCE when the offense invo lves
a fe lo ny and the suspect uses or attempts to use or threatens
the use of physical force against any person.
(3) Other Felonies Where Deadly Force is Author ized.
A f te r a l l reasonable means o f prevent ing or apprehending
a suspect have been exhausted, DEADLY FORCE is author ized in
the fo l lo w in g crimes:
(a) Kidnapping o . ^
(b) Murder in the 1st or 2nd degree
(c) Manslaughter , \
(d j Arson ( Inc lu d ing the use o f f irebombs;
( f ) Assault and b a t te ry w i th in te n t to c a rn a l ly know
a c h i ld under 12 years o f age
(g) Assault and b a t te ry w i th in te n t to commit rape
(h) Burglary in the 1s t , 2nd, or 3rd degree
( i ) Assault to commit murder in the 1st or 2nd degree
( j ) Assault to commit vo lun ta ry manslaughter
(k) Armed and_s im p l^ robbery
c. Use^of Deadly Force P ro h ib i t e d .
The use o f DEADLY FORCE is p ro h ib i te d when:
(1) A r res t in g a person fo r any misdemeanor o f fense ; or
lOO:)
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(2) E f fe c t in g an a r re s t o f any person fo r escape from
the commission o f any misdemeanor o f fense. i
i
d. Use o f Firearms P ro h ib i t e d .
(1) As warning shots;
(2) From any moving veh ic le or to stop any f le e in g v e h ic le ,
except In cases o f se l f -de fense or cases In v o lv in g :
(a) Murder In the 1st or 2nd degree
(b) Rape
(c) Assault and b a t te ry w i th In te n t to c a rn a l ly know
a c h i ld under 12 years o f age
(d) Armed or simple robbery
(3) In any case where an o f f i c e r does not have a c le a r f i e l d
o f f i r e and cannot be reasonably c e r ta in th a t on ly the sus
pect w i l l be h i t and tha t the p o te n t ia l f o r harm to innocent
persons or t h e i r property is minimal.
e . N o t i f i c a t i o n Procedures.
(1) Once the s i t u a t io n Is under c o n t r o l , any member who dis
charges a f i rea rm in the l i n e of duty w i l l immediately report the
f a c t to the Dispatcher who w i l l have the cognizant watch or
squad commander n o t i f i e d . The l a t t e r w i l l Inform the precinct
or bureau commander o f the event ,w i thou t delay. As soon as
p ra c t i c a b le , the o f f i c e r who f i r e d a weapon w i l l submit a written
n a r ra t i v e o f the c ircumstances, via the chain o f command, to the
Chief o f P o l ice , w i th copies to the Senior Member o f the Firearms
Review Board and to the Commanding O f f i c e r o f the Firing Range.
In a d d i t i o n . Form F2100.149 sha l l be f i l l e d out and forwarded to
the F i r in g Range.
(2) In any case re s u l t in g In death or wounding, the cognizant
watch o r squad commander,or his designated re p re s e n ta t iv e , will
proceed to the scene and w i l l r e l ie v e the o f f l c e r ( s ) concerned
pending completion o f the In q u i ry tha t w i l l be conducted by the
Firearms Review Board. In a d d i t io n , the Dispatcher w i l l notify
the Homicide Squad and the In te rn a l A f f a i r s Bureau as rapidly
as p o ss ib le . Preservat ion o f the scene w i l l be the r e s p o n s ib i l i t v
of the sen io r commander present.
4. SELF-CANCELLATION.
This o rder sha l l remain In e f f e c t u n t i l I t s p rov is ions have h;:o:i
incorpora ted in to the department 's Manual o f P o l i c i e s , Procedures ■’ns'
Rules and Regula t ions.
Hubbard
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E X H I B I T 3 - P O L I C Y - IN T R O D U C E D A T P A G E 6 9
- 9 3 -10 U
M E M P H IS PO LIC E DEPAHTM EiSJT
^ ~ laa AOAMB AV*IMUa-.MKMP>4ia,TBJ*JNEat3ElI 30-103.
SUBJECT: DEADLY FORCE POLICY
1. PURPOSE.
To establisn uniform policies regarding the use of deadly force by members of this
derartment and to establish procedures for t^e investigation and review of police
shooting incidents. This order rescinds General Orders 18-75, 13-76, 13-77, 4-74, and
72-6 and Conmand Bul le t in 9-77.
ACTION.
a. USE OF DEADLY FORCE
Defin i t ions:
(1) DANGEROUS FELONY - A dangerous ^elony is any felony wherein the
suspect has used, threatened to use, or attempted to use deadly
force in the commission of a crime. Dangerous felonies include
the following crimes:
(a) Kidnapping
\b) Murder in the 1st or 2nd degree
(c) Manslaughter
(d) Arson
(e) Criminal Sexual Assault, 1st, 2nd, or 3rd degree (Rape and Attempt Rape)
■(f) Aggravated Assault
i'g) Robbery
Burglary, 1st, 2nd, or 3rd degree
, ̂ ' Any attempt to commit tne above crimes.
'2'' 7E.-DL'' ” OPCE - ’"'nat amount ^zrze that 's suf'^'c'ent to, intended
to. may oe ■'easonao'y expected to ' " " i ' c t serious :od'"!y ■''njur/ and/O'-
: e a f . Th-? '-c'.joes t-e t ’ 3o''a'*C8 at
f ' J e t t o n 0* i’'•/ ■-.•I’ '/■ cual.
101‘)
c -
(4; REASONmEL- belief - Such belief as would anoear reasonable to the
ordinary and prudent police o f f ice r of similar experience in l ike
circumstances. Such belief is not reasonable i f the o f f ice r is
reckless or negligent in having such belief or in acquiring or
f a i l in g to acquire any knowledge or be l ie f of fact or of law wn-!cn
IS material to the j u s t i f i a b i l i t y of his use of force.
(5) pHAUpiON OF ALL OTHER REASONABLE MEANS - All other reasonable means
have been exnausted when an o f f ice r has tr ied to control con f l ic t bv
using a l l alternate methods other than deadly force; however, a l l '
other reasonable means may be considered to have been exhausted when
an o f f ice r analyzes a set of circumstances and honestly and reasonably
concludes that any other means w i l l be ineffect ive, useless, or
hazardous to the o f f ice r or some innocent th ird party. In order to
qual i fy as having exhausted a l l other reasonable means, the o f f ice r
must be abie to show that his use of deadly force was iimediatelv
necessary. The o f f ice r must also have communicated his identity'and
Duroose to the suspect, unless these facts are already known by the
susoect or cannot reasonably be made known to the suspect under the
circumstances. In deciding whether the use of deadly force is rea
sonably necessary, the o f f ice r must consider whether la te r action on
his part could eliminate the immediate need for deadly force.
The law in the State of Tennessee which regulates whether or not an
o f f ic e r has exhausted a l l other reasonable means is best i l lus t ra ted
by g ^ |a u v .^S ta^ , 70 Tenn. 720 (1879). In this case the Tennessee
Supreme Courw examined a situation wherein a constable and a guard
were transoorting a prisoner to the Jefferson County Jail when the
prisoner broke and ran inan attempt to escape. Neither of the
0.f leers ran after the prisoner. Instead, after cormianding the o r i -
soner three p ) times to halt without being obeyed, the constable
t i red two (2) shots at the prisoner. The constable .was convicted of
manslaughter and the Supreme Court upheld this conviction and laid
down this rule fo r the State of Tennessee:
An o f f ice r having a prisoner in custody who attempts
escape w i l l be excused for k i l l in g him i f ne cannot be
otherwise retaken, but i f he can be otherwise retaken
in any case without resort to such harsh measures, i t
w i l l be at least manslaugnter to k i l l him. The o f f ice r
doubtless acted under the bel ie f that erroneously prevails
as to the rights of a public o f f ice r , that is , that he
may lawful ly k i l l a prisoner i f he fa i ls to obey his
command to halt. This is a very erroneous and very fatal
doctrine and must be corrected. Officers should under
hand that i t is the ir duty to use such means to secure
tne’ r prisoners as w i l l enable them to nold them
tody w' bncut '•esorflng to t^e in cus-
use or firaa^-mis or jarce''OuS
oe excused ~jr taki-’c ' • *eweapons and tnat they w'1T no'
’n any case, whe-e, th di'-gence and caution
sorer could otnerw'Se oe taker
m u
.W- ' .
- J -
This ea r l ie r Tennessee law has since been applied in many other
cases involving the use of deadly force by police off icers and
is equally applicable to situations where an attempt is being
made to apprehend a f leeing felon. The Tennessee Supreme Court
in Scarbrough v. State ̂ 76 S. W. 2d 106, (1934) , specif ically
applied the above rule of law to cases involving f leeing felons.
The court said:
The law does not clothe an o f f ice r with authority
to a rb i t ra r i l y judge the necessity of k i l l i n g , and
such a course must be a last resort; and whether or
not there was a necessity fo r k i l l i n g , and the
reasonableness of the grounds upon which the o f f ice r
acted are questions of fact fo r a jury. K i l l ing in
f l i g h t is excusable only when i t is shown that the
felon cannot be ult imately taken by less drastic means.
Deadly force may be used in the following circumstances after al l othe»*
reasonable means of apprehension or prevention nave been exnausted:
(1) In self-defense where the o f f ice r has been attacked with
deadly force or is being threatened with the use of deadly
force.
(2) In defense of others where a th i rd party has been attacked with
deadly force or is being threatened with the use of deadly force
or is in danger of serous bodily in jury or death during the
actual commission of a crime against his person.
(3) To prevent the comnission of a dangerous felony in progress.
(4) To apprehend a suspect fleeing from the ccnunission of a dangerous
felony when an o f f ice r has witnessed the offense or nas suf f ic ient
information to know as a v ir tua l certainty that the suspect committed
the offense.
(5) To k i l l an animal which poses a direct threat to the safety of the
o f f ice r or other persons. However, the Ordnance Section should be
called to handle such a matter unless the danger is immediate.
USE OF DEADLY FORCE PROHIBITED
The use of deadly force is prohibited in the following circumstances:
(1) To aporenend or arrest a person fo r a misdemeanor offense.
iZ) To ef fect the arrest of any ce^sca ‘ or escape *rcm cne ccmmiss'cr
of any misdemeanor offense.
3 ’ -is var^'!'ig snots..
1014
- 4 -
. ‘tl!- a'
A ' ~c aDore^s’"iCl o’" arrsst a De’*son known
e .
:o be
(5)
(-6 )
on beleved to be 2
juvenile unless the use of deadly force is immediately necessary
in the de*'ense of the office»“'s l i f e or of another oerson's li"^e
when a l l other reasonable means have been exhausted. The of'^icer's
knowledge or belief of a oerson's age may be based uoon .actors
such as the o f f ice r 's previous knowledge of the oerson, ms ooser-
vations of the oerson's aooearance, or upon reliable information
given to him by other persons.
To apprehend or arrest a person fleeing from a felony which is not
a dangerous felony. This includes felonies such as auto the f t ,
larceny, embezzlement, fraud, burglary of an auto, or any other
felony which does not involve the use use of deadly force, attempted
use of deadly force, or threatened use of deadly force.
From or at any moving vehicle except in a case where a
felony has been committed in the o f f ice r 's presence and the o f f ice r
has determined that there is a much greater threat to innocent
by not using deadlv force. In making this determination, the o f f ice r
must consider the consequences of stray shots endangering innocen..^
parties and must consider the consequences of the vehicle going ouu
of control at a high rate of speed. Officers should be e x t r ^ e ly
cautious in using deadly force in self:defense when
used by the other person is an automobile, and the other person is
t ry ing to get away. The suspect's intentions are usually ambiguous,
and th-' o f f ice r can usually esc:oe harm - t least as well by evading
the vehicle as he can by standing his ground and f i r in g at tne on
coming vehicle. An o f f ice r almost never has a safe, effective shot
at a moving vehicle. This is part icu lar ly true when an oiTicer is .
involved in a high speed chase and is shooting from a moving vehicle.
(7) In any other case where the o f f ice r does not have a clear f ie ld of
f i r e and cannot be v i r tu a l l y certain that only the susoect w i l l be
h i t and that the potential fo r harm to innocent persons is minimum.
d. NOTIFICATION PROCEDURES WHEN WEAPONS ARE FIRED
When any o f f ice r of the Memphis Police Department discharges any firearm,
whether on duty or o f f duty, tfie o f f ice r w i l l iimiediately report the
incident to the dispatcher who w i l l have the cognizant Watch or Squad
Commander not i f ied. This Cornnander w i l l proceed to the scene of the
shooting and w i l l begin an imnediate investigation and not i fy the precincu
or bureau commander of the incident. The Commander w i l l prepare a
visor 's Shooting Incident Reoort (Attachment 1), and w i l l also have the
o f f ice r prepare a Firearms Use Report (Form-2100.149, Attachment 2). The
Commander w i l l also request a Crime Scene Squad umt to process the scene
i f necessarv. The Commander on the scene may also request investigative
assistance fi-om the Investigative Services Division i f said Conrmancer
feels that i t is necessary.
In a l l shooting incidents where a suspect, other o f f ice r , or othen cit izen
^3 /mounded or k i l led , the Watch or Squad Cctmiander w i l l reduei. uha. uÔ ,,
'-'Tie Sce^e arc tne I-vest'gative Services D'v is ’ on conaucc^an on-wne-^cene
■ gatior,. ” re 'lomrn.ancer in sucn cases 'S to immec.ateiy re. eve .
i n v L
the involved o f f ice r of duty oending the ccmoletion of the orenminary
investigation. The Commander w i l l not ify the on duty or on call Staff
Commander, and a decision w i l l be made as to the necessity fo r noti fy ing
the Police Legal Advisor and the Shelby County Attorney General's Office
for additional investigation.
e. REVIEW PROCEDURES
All reports, including the Firearms Use Report, Supervisor's Shooting
Incident report , Crime Scene report, and General Investigation Squad
report, copies of arrest t ickets , offense reports, and memos w i l l be
irrmediately forwarded d i rec t ly to the Deouty Director of Operations,
prior to the end of the reporting o f f ice r 's tour of duty.
Upon reviewing alT i n i t i a l reports, the Deputy Director of Operations
w i l l take the following action:
(1) Determine that no additional administrative investigation is required
and e i ther not ify the o f f ice r by le t te r that no action is to be taken
or issue.a statement of charges using established discip linary pro
cedures..
(2) Determine that additional administrative investigation is required
and assign this investigation to the Internal Affa irs Bureau. __
After the completion of the Internal Affairs investigation, a l l f i l e mater"'.al
w i l l be returned to the Deputy Director of Ocerations. The Deputy Director
of Operations shall take one of the following actions:
(1) Notify the o f f ice r by le t te r that no action is to be taken; or
(2) Submit the investigative f i l e to the Police Legal Advisor for review
by the Attorney General's Office and/or the Shelby County Grand Jury.
(3) Issue a statement of charges using the established disc ip l inary pro
cedures and/or schedule the case to be presented to the Trial Board
fo r a hearing.
This bu l le t in w i l l remain in effect unt i l revoked or superceded by competent
authori t y . A /\
I S ’.
Distribution - A J. 0. Holt
Deputy Director of Operations
10
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