Brief of the Defendants-Appellees

    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

CASE NO. 92-6196

CLEAMTEE GARNER, 
Father and Next of Kin of 
EDWARD EUGENE GARNER, 

a deceased minor
Plaintiff-Appellant

V.
MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS; TENNESSEE

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

BRIEF OF THE DEFENDANTS-APPELLEES

Counsel for Defendants-Appellees:
Henry L. Klein
Senior Staff Attorney
City of Memphis
Suite 2110
One Commerce Square
Memphis, Tennessee 38103



UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

CASE NO. 92-6196

CLEAMTEE GARNER, 
Father and Next of Kin of 

EDWARD EUGENE GARNER, 
a deceased minor

Plaintiff-Appellant
V.

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS; TENNESSEE

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

BRIEF OF THE DEFENDANTS-APPELLEES

Counsel for Defendants-Appellees;
Henry L. Klein
Senior Staff Attorney
City of Memphis
Suite 2110
One Commerce Square
Memphis, Tennessee 38103



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, Father and 
next-of-kin of EDWARD EUGENE 
GARNER, a deceased minor

Plaintiff - Appellant
VS.
MEMPHIS POLICE DEPARTMENT;
CITY OF MEMPHIS, TENNESSEE

Defendants - Appellees
WYETH CHANDLER, Mayor of Memphis; 
JAY HUBBARD, Director of Memphis 
Police; E. R. HYMON, Police Officer 
of the City of Memphis

Defendants

No. 92-6196

DISCLOSURE OF CORPORATION AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to Sixth Circuit Rule 25, Memphis Police 
Department; City of Memphis, Tennessee, Defendants/Appellees herein 
make the following disclosure:

1. Is said party a subsidiary or affiliate of a 
publicly-owned corporation? ^

If the answer is YES, list below the identity of the 
parent corporation or affiliate and the relationship between it and 
the named party: Not applicable

2. Is there a publicly-owned corporation, not a party 
to the appeal, that has a financial interest in the outcome? ^

If the answer is YES, list the identity of such 
corporation and the nature of the financial interest: Notapplicable

------- ^  ■

Date

//

Signature bf Counsel for Appellees



TABLE OF AUTHORITIES...........................................
SUBJECT MATTER AND APPELLATE JURISDICTION ................... 1
STATEMENT IN SUPPORT OF ORAL ARGUMENT ....................... 1
STATEMENT OF ISSUES ..........................................  1
STATEMENT OF C A S E ............................................  2
ARGUMENT ....................................................  3
CONCLUSION.................................................. ...
CERTIFICATE OF SERVICE ...................................... 18
A D D E N D U M .................................................... ...

TABLE OF CONTENTS



TABLE OF AUTHORITIES

Anderson v. Creighton,
483 U.S. 635 ( 1987) ........................................ 14
Bacchus Imports, Ltd, v. Dias,
468 U.S. 263 ( 1984)........................................ 8, 9
Beech V. Melancon,
465 F.2d 425 (6th Cir. 1972),
cert, denied, 409 U.S. 1114 ( 1973) ........................... 4
Belcher v. Oliver,
898 F.2d 32, (5th Cir. 1990) ...........................  15, 16
Carter v. City of Chattanooga, Tenn.,
850 F.2d 1119 (6th Cir. 1988) (en banc)
cert, denied 488 U.S. 1010 (1989) ........  1, 3, 4, 8, 9, 10, 16
Chevron Oil Co. v. Huson,
404 U.S. 97 ( 1971) ...................................... 5, 7, 9
City of Canton, Ohio v. Harris,
489 U.S. 378 ( 1989)........................................ 15, 16
City of Los Angeles v. Heller,
475 U.S. 796 ( 1986).............................  12, 13, 14, 17
City of Oklahoma v. Tuttle,
471 U.S. 808 ( 1985)........................................ 5, 11
Coal Resources, Inc, v. Gulf & Western Industries,
865 F.2d 761 (6th Cir. 1989) ...............................  10
Cunningham v. Ellington,
323 F.Supp. 1072 (W.D. Tenn. 1971) ...........................  4
Dodd V. City of Norwich,
827 F.2d 1, (2nd Cir. 1987) cert, denied
108 S.Ct. 701 ( 1988) ........................................ 13
Doe V. Sullivan County, Tenn.,
956 F.2d 545 (6th Cir. 1992) ...........................  13, 14
Garner v. Memphis Police Department,
710 F.2d 240 (6th Cir. 1983)..................... 3, 5, 6, 7, 10

11



James B. Beam Distilling Co. v. Georgia,
_____ U.S. ______,
111 S.Ct. 2439 ( 1991)........................................8, 9
Johnson v. State,
173 Tenn. 134, 114 S,W.2d 819 ( 1938) ......................... 4
Kori Corp. v. Walco Marsh Buggies & Draglines, Inc.,
761 F.2d at 649 ..............................................  10
Leach v. Shelby County Sheriff,
891 F.2d 1241 (6th Cir. 1989)...............................  16
Love V. Bass,
145 Tenn. 522, 238 S.W. 94 ( 1921)............................. 4
Mitchell V. City of Sapulpa,
857 F.2d 713 (10th Cir. 1988)................................. 8
Monell V. New York City Department of Social Services,
436 U.S. 658 ( 1978)................... 2, 9, 10, 12, 14, 15, 16
Pembaur v. City of Cincinnati,
475 U.S. 469 ( 1986)...................................... 11, 16
Qualls V. Parrish,
534 F.2d 690 (6th Cir. 1976) ..................................4
Reneau v. State,
70 Tenn. 720 ( 1879)............................................ 4
Reynolds v. City of Little Rock,
893 F.2d 1004 (8th Cir. 1990)...............................  13
Rhyne v. Henderson County,
973 F.2d 386 (5th Cir. 1992) ...........................  15, 16
Rivas V. Freeman,
940 F.2d 1491 (11th Cir. 1991) ............................. 16
Rodriquez v. The City of Passaic,
730 F.Supp. 1314 (D.N.J. 1990) aff'd,
914 F.2d 244 (3rd Cir. 1990) .............................  8, 14
Ruqe V. City of Bellevue,
892 F.2d 738 (8th Cir. 1989) ...............................  16
Scarbrough v. State,
168 Tenn. 134, 76 S.W.2d 106 ( 1934)........................... 4

111



state V. Boles,
598 S.W.2d 821 (1980)............................................
Swank v. City of Paqedale,
810 F.2d 791 (8th Cir. 1987) ...............................  13
Tennessee v. Garner,
471 U.S. 1 ( 1985).........................  5, 6, 7, 8, 9, 10, 15
Wiley V. Memphis Police Dept.,
548 F.2d 1247 (6th Cir. 1977), cert, denied,
434 U.S. 822 .................................................. ..

STATUTES

T.C.A. § 40-7-108 ..............................................  4
42 U.S.C. § 1983 ..............................................  14

IV



SUBJECT MATTER AND APPELLATE JURISDICTION 
Defendants accept the statement regarding subject matter 

and appellate jurisdiction as set out in Plaintiff's brief.

STATEMENT IN SUPPORT OF ORAL ARGUMENT 
Defendants submit that because of the lengthy history of 

this case, which includes two opinions from this Honorable Court 
and an opinion from the Supreme Court of the United States and 
because there are significant legal issues involved, oral argument 
is deemed to be important from the standpoint of counsel and 
hopefully helpful to the Court,

STATEMENT OF ISSUES 

I,
Whether the holding in Carter v. City of Chattanooga, 

Tenn. , 850 F.2d 1119 (6th Cir. 1988) (en banc) cert, denied 488
U.S. 1010 (1989) justifies the granting of a summary judgment by 
the District Court.

II.
Whether the City of Memphis had in place a policy which 

was in violation of the deceased's constitutional rights.

Ill.
Whether in the absence of liability on the part of the 

officer involved the City can be held liable.



Whether there was a deliberate or conscious decision on 
the part of the City of Memphis to ignore the constitutional rights 
of the deceased.

IV.

STATEMENT OF CASE
Defendants accept Plaintiff's statement of the case, but 

would add the following:
The answer of Defendants filed in response to the 

complaint did not assert a qualified immunity defense on behalf of 
officer Hymon. R.8.

In the Memorandum Opinion filed in this cause following 
the trial of the case, the Court commented on the difficult 
decision that officer Hymon had to make leading up to the 
unfortunate shooting of young Garner, together with the fact that 
eventually, but not realized at the time. Garner was unarmed. The 
Court concluded that after taking into consideration the various 
circumstances involved "Hymon acted within his responsibility as 
a reasonable police officer. He certainly acted without any 
malice, predisposition or racial animus towards Garner." The Court 
went on to say that he acted within the 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." R.57.

In the Order entered by the District Court following the 
first remand for consideration in light of Monell, the trial judge

2



noted that "although the evidence presented at trial in this case 
suggested that Garner appeared unarmed, the officer could not have 
known this with certainty." R.72.

ARGUMENT 

I .

The holding in Carter v. City of Chattanooga, Tenn., 
supra, justified the granting of a summary judgment by the District 
Court.

A. The City of Memphis had the right to formulate a 
course of conduct previously declared to be constitutional.

The District Court in denying Plaintiff’s motion for 
partial summary judgment and in dismissing the case made a 
comparison of the facts in the Carter decision to those in the case 
at bar and concluded that contrary to the decision in Garner v. 
Memphis Police Department, 710 F.2d 240 (6th Cir. 1983), (Garner 
II)/ municipalities have a defense to a claim pursuant to 42 U.S.C. 
§ 1983 based upon their reliance on a policy or course of conduct 
previously determined to be within constitutional limits.

General Order No. 5-74 of the Memphis Police Department, 
which was in effect at the time of the incident involved herein, 
authorized the use of deadly force to, among other things, 
apprehend a felon fleeing from the commission of a burglary in the 
first degree.



The General Order was predicated upon Tennessee Code
Annotated, § 40-7-108 (Former § 40-808) which reads as follows:

Resistance to Officer - If after notice 
of the intention to arrest the defendant, he 
either flees or forcibly resists, the officer 
may use all the necessary means to effect the 
arrest.
Several Tennessee cases have interpreted this statute. 

Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938); Scarbrough
V. State, 168 Tenn. 134, 76 S.W.2d 106 (1934); Love v. Bass, 145 
Tenn. 522, 238 S.W. 94 (1921); Reneau v. State, 7 0 Tenn. 720
(1879); and State v. Boles, 598 S.W.2d 821 (1980).

The constitutionality of T.C.A. § 40-7-108 was considered 
on several occasions and each time it was upheld. Cunningham v. 
Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971); Beech v. Melancon, 
465 F.2d 425 (6th Cir. 1972), cert, denied, 409 U.S. 1114 (1973); 
Qualls V. Parrish, 534 F.2d 690 (6th Cir. 1976 ); and Wiley v. 
Memphis Police Dept., 548 F.2d 1247 (6th Cir. 1977), cert, denied, 
434 U.S. S 2 2 \

It is obvious that the author of the General Order relied
upon a statute that had passed the test of time not only by the
Courts of the State, but also Federal Courts deciding cases
pursuant to § 1983. As the Court in Carter stated:

. . . Cities such as Chattanooga are faced
with serious risks and burdens in carrying out 
their police powers under the general 
Tennessee law and the long established common 
law as to capture of fleeing felons. The City 
ought not be deterred in its exercise of what

It should be noted that certiorari was denied by the 
Supreme Court in both Beech and Wiley.



it has good reason to believe is
constitutional conduct in the face of repeated 
and unsuccessful court challenges to the 
policy it pursued. This was more than merely 
exercising good faith; it was acting in 
reliance on what appeared over many years to 
have been valid and proper state directed 
police conduct and policy . . .
850 F.2d at 1131
Furthermore, to hold the City liable for following the

existing law would be to depart from the important and established
principle of stare decisis. As Justice Rehnquist said in City of
Oklahoma v. Tuttle, 471 U.S. 808 (1985) at page 819 n.5:

. . . One reason why courts render decisions
and written opinions is so that parties can 
order their conduct accordingly, and we may 
assume that decisions on issues such as this 
are appropriately considered by municipalities 
in ordering their financial affairs. The 
principle of stare decisis gives rise to and 
supports these legitimate expectations, and, 
where our decision is subject to correction by 
Congress, we do a great disservice when we 
subvert these concerns and maintain the law in 
a state of flux.

B . The holding in Tennessee v. Garner, 471 U.S. 1 
(1985) and Garner II should not be applied retroactively.

In Carter this Court declined to apply Tennessee v. 
Garner and Garner II retroactively. The Court carefully analyzed 
the three standards of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 
which were set forth as follows:

In our cases dealing with the 
nonretroactivity question, we have generally 
considered three separate factors. First, the 
decision to be applied nonretroactively must 
establish a new principle of law, either by 
overruling clear past precedent on which



litigants may have relied . . ., or by 
deciding an issue of the first impression 
whose resolution was not clearly foreshadowed 
. . . . Second, it has been stressed that 'we 
must . . . weigh the merits and demerits in 
each case by looking to the prior history of 
the rule in question, its purpose and effect, 
and whether retrospective operation will 
further or retard its operation.'
Finally, we have weighed the inequity imposed 
by retroactive application, for "[wjhere a 
decision of this Court could produce 
substantial inequitable results if applied 
retroactively, there is ample basis in our 
cases for avoiding the 'injustice or hardship' 
by a holding nonretroactively."
Id. at 106-07, (citations omitted).
In resolving the first standard this Court in Carter 

makes an in depth review of the prior decisions and various 
authorities which focused on the Tennessee fleeing felon statute 
and concluded that as enunciated in Chevron Oil it has been
satisfied. This Court goes on to say;

. . . Garner II, as affirmed in Tennessee v.
Garner, established a new and unexpected 
principle of law by setting aside clearly 
established precedent, particularly in this 
circuit, on which the City of Chattanooga and 
its police officers had a right to rely when 
this most unfortunate episode occurred in 
1982. If it did not overrule a clearly 
established precedent in the Supreme Court,
Tennessee v. Garner decided 'an issue of first 
impression whose resolution was not clearly 
foreshadowed.' 404 U.S. at 106 . . .
850 F.2d at 1129.
Then applying the second standard this Court found that

applying the Garner rule retroactively would not further the
purpose of deterrence. On this point this Court says:

Weighing and balancing of the equities in 
this case in light of the 'prior history of



the rule in question' (the fleeing felon 
rule), and 'its purpose and effect,' we are 
persuaded that the City of Chattanooga did 
have a legitimate basis at the time to believe 
that its policy, in conformity with Tennessee 
law and longstanding common law was not 
unconstitutional. See Chevron Oil, 404 U.S. 
at 106, 92 S.Ct. at 355. The second standard 
of Chevron Oil, then, was met, and it is 
appropriate to apply the new principle of
Garner II and Tennessee v.____Garner
prospectively . . .
850 F.2d at 1130.
Lastly the Court focuses on the third standard dealing

with the equities of retroactive application. In making a most
significant point and one which goes to the heart of one of the key
issues in this case, the Court says:

. . . A state or city having notice that a
given and settled or legal principle will 
henceforth be considered unenforceable or 
violative of newly decided federal 
constitutional principles may have an 
opportunity in the future to protect itself 
against liability by changing its policies 
thereafter. To impose liability against the 
City in the present situation would be 
inequitable and might present severe financial 
strain in the case of smaller municipalities.

That reasoning applies with equal force 
in this case because the City of Chattanooga 
was justified in relying on the apparently 
established constitutionality of the Tennessee 
fleeing felon rule under Sixth Circuit 
rulings, a three-judge district court decision 
in the circuit, and the nearly unanimous 
judicial approval of the common law rule. To 
change the rule retroactively to the detriment 
of defendants and potentially hundreds of 
other municipalities that would be adversely 
affected by such a ruling would be unfair.
850 F.2d at 1131.



As discussed in the Carter decision, some Courts have 
applied Garner retroactively, however, others have declined to do 
so. See Mitchell v. City of Sapulpa, 857 F.2d 713 (10th Cir.
1988); Rodriquez v. The City of Passaic, 730 F.Supp. 1314 (D.N.J. 
1990) aff'd 914 F,2d 244 (3rd Cir. 1990).

The reasoning in Carter as to why the Garner rule should 
not be applied retroactively holds true in the case at bar. 
Plaintiff concedes that the opinion of the Supreme Court "lacks 
explicit directive concerning its retroactive effect in all cases", 
but argues that "the opinion clearly states the Court's mandate 
with regard to the parties before it" (Plaintiff's Brief at 14). 
The fallacy with Plaintiff's position is that it presupposes that 
the Carter decision will have no impact on this case. To accept 
Plaintiff's position would be to penalize the City of Memphis where 
under the same set of circumstances the City of Chattanooga is 
absolved of liability. In other words, it could hardly be said to 
be equitable to find on the one hand that the City of Chattanooga 
was entitled to a judgment as a matter of law because it was not 
at the time following a clearly established unlawful or 
unconstitutional policy, and on the other hand, hold the City of 
Memphis liable when it was following the same procedure.

On the subject of retroactive application. Plaintiff
relies upon James B. Beam Distilling Co. v. Georgia, _____  U.S.
______, 111 S.Ct. 2439 (1991). Defendants submit this reliance is
misplaced. Since the Supreme Court had previously ruled on a 
similar issue in Bacchus Imports, Ltd, v. Dias, 468 U.S. 263

8



(1984), the question in Beam was whether it was error to refuse to 
apply a rule of federal law retroactively after the case announcing 
the rule has already done so. The Court held it was. Ill S.Ct. 
at 2446. The Court goes on to say:

The grounds for our decision today are 
narrow. They are confined entirely to an 
issue of choice of law: when the Court has 
applied a rule of law to the litigants in one 
case it must do so with respect to all others 
not barred by procedural requirements or res 
judicata. We do not speculate as to the 
bounds or propriety of pure prospectivity.
Ill S.Ct. at 2448.
The distinction between Beam and Garner is that in Garner 

the Court was not confronted with a previous Supreme Court ruling 
on the same issue. It would appear that Beam modifies Chevron Oil 
only to the extent that the Courts cannot determine the choice of 
law relying on the equities of each case. The principles of 
equality and stare decisis must prevail on a claim based on a 
Chevron Oil analysis. Ill S.Ct. at 2446. Defendants submit that 
the Beam case does not alter in any way this Court’s reliance on 
Chevron Oil in the Carter decision.

C. The "law of the case" doctrine is not applicable to
this case.

Plaintiff argues that when this case was remanded by the 
Supreme Court and Court of Appeals, the trial Court was under 
mandate to follow the law as established by these Courts, which in 
effect was to make its findings exclusively under Monel1 
(Plaintiff's Brief at 18). In support of this position. Plaintiff



cites Coal Resources, Inc, v. Gulf & Western Industries, 865 F.2d 
761 (6th Cir. 1989). While Coal Resources does confirm the "law 
of the case" doctrine, this Court goes on to discuss the exceptions 
to the rule quoting one of its previous decisions at page 767:

The [law of the case] doctrine precludes 
our reconsideration of the [previously decided 
issue] unless one of three 'exceptional 
circumstances' exists: the evidence in a
subsequent trial was substantially different; 
controlling authority has since made a 
contrary decision of law applicable to such 
issues; or the decision was clearly erroneous, 
and would work a substantial injustice.
(emphasis added)
Kori Corp., 761 F.2d at 657.
The notable exception here is this Court's subsequent 

decision in Carter, holding that Garner and Garner II are not to 
be applied retroactively based upon equitable and other 
considerations^.

II.
The City of Memphis did not have in place a policy which 

was in violation of deceased's constitutional rights.
The real question here is whether the General Order of 

the Memphis Police Department authorizing the use of deadly force 
to apprehend a fleeing felon was technically a policy within the 
meaning of Monell v. New York City Department of Social Services,

Certiorari was denied in Carter, 488 U.S. 1010 (1989). 
This is particularly significant since the thrust of this Court's 
decision was not to apply Garner retroactively, which lends 
credence to Defendants' position that it should not be applied 
retroactively in this case.

10



436 U,S. 658 ( 1978) and its progeny. Since the order was based 
upon state and casebook law, any policy as such was established by 
the legislature and the courts and not the City^. The City was 
merely following the well-settled law. If the City was to provide 
for the use of deadly force, it had no choice or alternative but 
to follow existing law.

In Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), 
the Court in attempting to define what is meant by "policy" said 
at pages 484-484:

. . . We hold that municipal liability under 
Section 1983 attaches where - and only where - 
a deliberate choice to follow a course of 
action is made from among various alternatives 
by the official or officials responsible for 
establishing final policy with respect to the 
subject matter in question. See Tuttle, supra, 
at - 105 S.Ct., at 2436 ("'policy' generally 
implies a course of action chosen from among 
various alternatives.").
Analyzing this definition of "policy" and applying it to 

the case at hand, it certainly would not be reasonable to say that 
the City made a deliberate choice from among various alternatives. 
The fact that City officials could have chosen to implement various 
guidelines for the use of deadly force is not the choice referred 
to by the Court. When the City set a standard for its officers 
which was more restrictive than the State statute, it was following 
the law and not making a deliberate choice among alternatives.

Judge Wellford in his Memorandum Opinion following the 
first trial found that the Memphis Police Department policy "has 
been one essentially established by the Tennessee legislature which 
has been determined to be a constitutionally acceptable one." 
(emphasis added) R.53.

11



For the foregoing reasons. Defendants maintain that the 
City of Memphis was not acting pursuant to a policy within the 
meaning of Monell.

Ill.
In the absence of liability on the part of the officer 

involved, the City cannot be held liable.
Initially Elton Hymon, the police officer who attempted 

to apprehend Edward Eugene Garner, was named as a Defendant. At 
the conclusion of the trial, the trial judge, sitting without a 
jury, held that Hymon acted within his duties as a reasonable 
police officer without malice, predisposition or racial animus and 
within the guidelines afforded him as a Memphis policeman. R. 53. 
This finding by the Court was not challenged on appeal.

In City of Los Angeles v. Heller, 475 U.S. 796 (1986), 
the court held that

If a defendant has suffered no constitutional 
injury at the hands of the individual police 
officer, the fact that the departmental 
regulations might have authorized the use of 
constitutionality excessive force is quite 
beside the point".
Id. at 799.
In his dissent. Justice Stevens comments on the proof in 

the case as follows:
. . . The verdict merely determined that the
officer's action was not unreasonable 'in the 
light of all the surrounding circumstances' - 
which, of course, included the evidence that 
Officer Bushey was merely obeying orders and

12



following established Police Department 
policy.
475 U.S. at 803.
The significant point is that in both Heller and this 

case the officers were exonerated on evidence that their actions 
were reasonable and that they followed established guidelines, 
which was to say that the deceased suffered no constitutional 
injury at their hands. Under those circumstances, the City cannot 
be held liable. Also see Swank v. City of Pagedale, 810 F.2d 791 
(8th Cir. 1987); Dodd v. City of Norwich, 827 F.2d 1, 8 (2nd Cir. 
1987) cert, denied 108 S.Ct. 701 ( 1988) and Reynolds v. City of 
Little Rock, 893 F.2d 1004, 1007 (8th Cir. 1990).

Defendants are not unmindful of this Court's decision in 
Doe V. Sullivan County, Tenn., 956 F.2d 545 (6th Cir. 1992) where 
it was held that a city is not necessarily immune from liability 
because an officer was entitled to qualified immunity. Id. at 554- 
55. This would be controlling here if the District Court had found 
in favor of officer Hymon on the basis of qualified immunity'*. 
However, when the Court predicates its ruling on the fact that the 
officer acted "within his duties as a reasonable police officer 
without malice or racial animus", this goes beyond qualified 
immunity. It is immaterial that the department guidelines may have 
authorized the use of excessive force.

Qualified immunity was neither plead by officer Hymon as 
a defense in this case nor did the Court ever make reference to 
this defense.

13



Contrary to this Court's holding in Doe, other Courts 
have absolved the municipality of liability where the officer has 
been granted gualified immunity.

In Rodriquez v. City of Passaic, supra, the Court 
discusses a similar situation dealing with qualified immunity and 
the application of the Heller decision:

Applying the 'objective legal 
reasonableness ' standard established in Harlow 
and fine-honed in Anderson v. Creighton, Kicha 
could reasonably have believed that she was 
justified in shooting plaintiff. Even 
assuming the retroactivity of Garner, an 
assumption made with the greatest of 
difficulty, Kicha is entitled to qualified 
immunity.

Because Kicha has not violated 
plaintiff's constitutional rights, there is, 
as discussed at pp. 1320-21 supra, no basis 
for a finding of liability against the 
remaining defendants. Liability under § 1983 
is derivative; where its agent or employee is 
exonerated as to acts for which a municipal 
corporation is allegedly responsible, so, too, 
is the municipal corporation.

[T]his was an 
neither Monell 
Social Services

action for damages, and 
V . New York City Dept, of

______ 436 U.S. 658, 98 S.Ct.
L.Ed.2d 611 ( 1978), nor any

our cases authorizes the award 
against a municipal 

on the actions of one

2018, 56
other of 
of damages 
corporation based 
of its officers when in fact the [court] 
has concluded that the officer inflicted 
no constitutional harm.

Heller v. City of Los Angeles, supra, 475 U.S. 
at 799, 106 S.Ct. at 1573. Therefore, the
absence of § 1983 liability against Kicha
requires a finding that there is no § 1983
liability against the City of Passaic or its 
Police Department.
730 F.Supp. at 1327-28.

14



Also see Belcher v. Oliver, 898 F.2d 32, 36 (5th Cir. 1990).

IV.
There was no deliberate or conscious decision on the part 

of the City of Memphis to ignore the constitutional rights of the 
deceased.

The Supreme Court on remand in this case held that the 
possible liability of the Police Department and the City hinges on 
Monell. Tennessee v. Garner, 471 U.S. at 23. To determine 
liability, if any, not only would it be necessary to consider the 
holding in Monell, but also to take into consideration all 
developments in the law since the Court first decided Monell in 
1978.

Since Monell, the Supreme Court, as well as the lower 
Courts, have wrestled with the difficult task of defining "policy" 
and the contours of municipal liability. They have worked their 
way through this legal maze and settled on a rather specific and 
definitive pronouncement in City of Canton, Ohio v. Harris, 489 
U.S. 378 (1989). There the Court in discussing the definition of 
a policy under Monell, settled on a standard of "deliberate 
indifference". The Court held that there can only be liability 
against a municipality "where the City's failure to train reflects 
deliberate indifference to the constitutional rights of its 
inhabitants." Id. at 392.

While the guidelines laid down in City of Canton apply 
to the adequacy of training, subsequent cases have held this test 
likewise applies to other situations. Rhyne v. Henderson County,

15



973 F.2d 386, 392 (5th Cir. 1992) (care of pre-trial detainees 
known to be suicidal); Rivas v. Freeman, 940 F.2d 1491, 1495 (11th 
Cir. 1991) (failure to establish a policy and procedures); Belcher
V. Oliver, supra at 34 (failure to afford medical treatment and 
screening); Huge v. City of Bellevue, 892 F.2d 738, 742 (8th Cir. 
1989) (whether city had a deliberate policy of not shoring up 
ditches and then requiring employee to work in them); Leach v. 
Shelby County Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989) (failure 
to supervise and investigate).

Applying this standard, it can hardly be said that by 
following established law in formulating the guidelines for its 
officers, the City of Memphis made s deliberate or conscious 
decision to ignore the constitutional rights of its citizens. The 
City "policy" must be a deliberate and conscious choice by its 
policy maker. City of Canton, 489 U.S. at 389 (quoting Pembaur v . 
City of Cincinnati, supra at 483).

CONCLUSION
Defendants submit that the District Court was correct in 

applying this Honorable Court's decision in Carter v. City of 
Chattanooga, supra, in denying Plaintiff's motion for partial 
summary judgment and dismissing the case. In addition, the case 
should be dismissed on the basis that the City did not have in 
place a policy in violation of the deceased's constitutional rights 
within the meaning of Monell v. New York City Dept, of Social 
Services, supra; the exoneration of the officer involved would

16



relieve the City of liability under City of Los Angeles v. Heller, 
supra; and the Memphis Police Department General Order was not the 
result of a deliberate or conscious decision to ignore the rights 
of the public.

For these reasons and those set out more specifically 
herein. Defendants respectfully request that the District Court's 
Order Denying Plaintiff's Motion for Partial Summary Judgment, 
Granting Summary Judgment for the Defendants and Dismissing Case 
be affirmed.

Respectfully submitted.

/

Henry L/ Klein
Attorney for Defendants/Appellees 
Suite 2110 
One Commerce Square 
Memphis, Tennessee 38103

17



CERTIFICATE OF SERVICE
I hereby certify that two copies of the Brief of the 

Defendants-Appellees were mailed by United States Mail to Walter 
Lee Bailey, Jr., Attorney for Plaintiff/Appellant, 200 Jefferson 
Avenue, Suite 800, Memphis, Tennessee 38103, this / o  ■' day of 
December, 1992.

Henry L.' Klein

18



ADDENDUM

UNITED STATES COURT OF .APPEALS 
FOR THE SDCTH CIRCUIT

, 9 2 -6 1 9 6CiS€ no 
Uâ e Cap'.ion:

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

Plaintiff-Appellant,

vs.

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE, 
Defendants-Appellees.______

lUK^eimXPSUAPPELLEE'S DES'G.N'ATIO.N 
OF .APPENTDDC CONTENTS

AppeiioEX/appellee, pursuano to Sixth Circuit Rule 11(6), nereby designates the following rilings ;n '..-.e ; 
court s record as items to be included in the joint appendtx:
.Appellant's designation is complete and appellees do not have a need to supplement 
the designation.

DESCRIPTION OF ENTRY DATE j RECORD 
' ENTRY NO

'

19



DESCRIPTION OF ENTRY DATE

d e s c r i p t i o n  o f
PROCEEDIN'O OR TESTIMONY'

I ; rR-\-\;CRIPT 
a\'d '.'ollat:

Respectfully submitted

NOTE: Appendix designation to be included in briefs. 

6CA-108

20