Petition for a Writ of Certiorari

    w

/  r
V

In The

Supreme Court of the United States
October Term, 1993

---------------- ♦-----------------

MEMPHIS POLICE DEPARTMENT, et al„
Petitioners,

vs.

CLEAMTEE GARNER,
Respondent.

On Petition For A Writ Of Certiorari 
To The United Slates Court Of Appeals 

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI
---------------4---------------

lIlNKV L. Kiiin 
(Counsel of Record)
Staff Attorney
2110 One Commerce Square 
Memphis, Tennessee 38103 
(901) 525-1711
M onici  MtxiKi; H ac;i i r  
City Attorney 
Room 314
125 North Main Street 
Memphis, Tennessee 38103-2079 
(901) 576-6614
Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO , (800) 
OR CALL COLLECT (402) ,T42-2g31



QUESTIONS PRESENTED

The questions presented for review in this Petition 
for Writ of Certiorari are:

1. Whether the City's Departmental Order authoriz­
ing the use of deadly force to apprehend a fleeing felon 
based upon well established law is an official policy or 
custom created by the City or Department, the execution 
or implementation of which caused the particular consti­
tutional injury involved.

2. Whether the City's good faith reliance on a flee­
ing felon rule determined to be within constitutional 
limits prior to this Court's decision in Tennessee v. Garner, 
471 U S. 1 (1985) precludes liability for the shooting in 
this case.

3. Whether the holding in Tenm’s.sct' i>. Garner, 471 
U S. 1 (1985) should have retroactive application to the 
City and its Police Department in this case.

4. Whether the exoneration of a police officer from 
liability in a fleeing felon shooting based upon qualified 
immunity or actions not unreasonable, relieves the City 
of liability.



LIST OF PARTIES

I hc parties involved are Cleamtee Garner, father, and 
next of kin of Edward Eugene Garner, a deceased minor, 
the Memphis Police Department and the City of Mem­
phis, Tennessee.

ni

TABLE OF CONTENTS
Page

Questions Presented...............................................   i

List of Parties.....................................................................  ii

Opinions Below...........................................    \

jurisdiction........................................................................... 2
Constitutional Provisions and Statutes Involved . . . .  2
Statement of the Case...................................................... 4
Keasi>ns for Granting Certiorari....................................  9
Ct>nclusion........................................................................... 13



TABLE OF AUTHORITIES
Page

C asils

Beech v. Melattcon, 465 F.2d 425 (6th Cir. 1972), cert, 
denied, 409 U.S. 1114 (1973).........................................  10

Carter v. City of Chattanooga, Tenn., 850 F.2d 1119 
(6lh Cir. 1988) (en banc), cert, denied, 488 U.S.
1010 (1989)............................................................. 8. 10, 11

City of Los Angeles v. Heller, 475 U.S. 796 (1986) 12

Coal Resources, Inc. v Gulf & Western Industries, 865
F.2d 761 (6th Cir 1989)...............................................  II

Cunningham v. Lllington. 323 F. Supp 1072 (WI)
Tenn. 1971)......................................................................  10

Doe V. Sullivan County, Tenn., 956 F.2d 545 (6th Cir.
1992), cert, denied, 113 S.Ct. 187 (1992).........................12

Johnson v. Slate, 173 Tenn. 134, 114 S.W.2d 819 
(1938)...................................................................................

Love V. Bass, 145 Tenn. 522, 238 S.W. 94 (1921)........... 9

Mitchell V. City of Sapulpa, 857 F.2d 713 (10th Cir.
1988)...................................................................................  12

Monell V. Department of Social Services, 436 U.S. 658
(1978)............................................................. 6, 7, 9, 10, 11

Qualls V. Parrish, 534 F.2d 690 (6th Cir. 1976).............10

Reneau v. State, 70 Tenn. 720 (1879)....................................9

Rodriguez v. City of Passaic, 730 F. Supp. 1314
(D.N.J. 1990), aff’d., 914 F.2d 244 (3rd Cir. 1990) 11, 13

IV

TABLE OF AUTHORITIES -  Continued
Page

Scarbrough v. State, 168 Tenn. 134, 76 S.W.2d 106
(1934)...................................................................................... 9

State V. Boles, 598 S.W.2d 821 (Tenn. Crim. App.
1980)....................................................................................  10

Tennessee v. Garner, 465 U.S. 1098 (1984)...........................8
Tennessee v. Garner, 471 U.S. 1 (1985).........................8, 11
Wiley V. Memphis Police Department, 548 F.2d 1247 

(6th Cir. 1977), cert, denied, 434 U.S. 822 (1977) . . . .  10

CoNbiiiUTK)NAi Provisions

Fourth Amendment to the United States Constitu­
tion .............................................................................. 2, 3, 7

Sixth Amendment to the United States Constitu­
tion ..........................................................................................7

Eighth Amendment to the United States Constitu­
tion ..........................................................................................7

Fourteenth Amendment to the United States Con­
stitution .......................................................................2, 3, 7

OtHKR AuTHORITlIi
Tennessee Code Annotated § 40-7-108...................  3, 6, 7
28 U.S.C. § 1331....................................................................... 5
28 U.S.C. § 1343(3)................................................................. 5
42 U.S.C. § 1981....................................................................... 5
42 U.S.C. § 1983..................................................... 3, 5, 9, 12
42 U.S.C. § 1985.......................................................................5
42 U.S.C. § 1986....................................................................... 5
42 U.S.C. § 1988.......................................................................5

V



No.

In The

Supreme Court of the United States
October Term, 1993

MEMPHIS POLICE DEPARTMENT, et al..
Petitioners,

vs.

CLEAMTEE GARNER,
Respondent.

On Petition For A Writ Of Certiorari To The 
United Stales Court Of Appeals 

For The Sixth Circuit
-------------- e---------------

PETITION FOR A WRIT OF CERTIORARI

Petitioners pray that a Writ of Certiorari issue to 
review the opinion and judgment of the United States 
Court of Appeals for the Sixth Circuit decided and filed 
in this case on October 22, 1993.

OPINIONS BELOW

The Order Denying Plaintiff's Motion for Partial 
judgment. Granting Summary Judgment for the Defen­
dants and Dismissing Case entered in the United States 
District Court for the Western District of Tennessee, West­
ern Division, and filed on June 30, 1992, has not been

1



officially published, and appears in the Appendix at Al. 
The opinion of the United States Court of Appeals for the 
Sixth Circuit decided and filed October 22, 1993, revers­
ing the district court order and remanding the case for 
further proceedings has been recommended for full-text 
publication and appears in the Appendix at A5. The order 
of the United States Court of Appeals for the Sixth Circuit 
denying the petitioners' petition for rehearing en banc 
and for rehearing by the original hearing panel was filed 
December 7, 1993, and has not been officially published. 
It appears in the Appendix at A30.

JURISDICTION

The judgment of the United States Court of Appeals 
for the Sixth Circuit was entered October 22, 1993. On 
December 7, 1993, the court filed an order denying the 
petitioners' timely request for a suggestion of rehearing 
or rehearing en banc. This petition was filed within 
ninety (90) days of the decision of the court and the 
denial of rehearing.

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

The constitutional provisions involved in this case 
are the Fourth and Fourteenth Amendments to the United 
States Constitution. Those amendments read as follows, 
in pertinent part:

AMENDMENT IV
The right of the people to be secure in their 

persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be 
violated, and no warrants shall issue, but upon 
probable cause supported by oath or affirma­
tion, and particularly describing the place to be 
searched, and the persons or things to be seized.

AMENDMENT XIV
Section 1. All persons born or naturalized in 

the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of 
the State wherein they reside. No State shall 
make or enforce any law which shall abridge the 
privileges or immunities of citizens of the 
United States; nor shall any State deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws.

I he State statutory provision applicable to the case at 
the relevant time was Tennessee Code Annotated 
§ 40-7-108 (formerly codified as § 40-808), which pro­
vided 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.

I he Federal statute involved is 42 U.S.C. § 1983, 
which provides as follows:

§ 1983. Civil action for deprivation of rights

Every person who, under color of any stat­
ute, ordinance, regulation, custom or usage, of



any State or Territory or the District of Colum­
bia, subjects, or causes to be subjected, any citi­
zen of the United States or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity, 
or other proper proceeding for redress. For the 
purposes of this section, any Act of Congress 
applicable exclusively to the District of Colum­
bia shall be considered to be a statute of the 
District of Columbia.

STATEMENT OF THE CASE

On the night of October 3, 1974, an individual broke 
a window at the rear of a residence within the city limits 
of Memphis, Tennessee, and entered the house. Police 
were called by a neighbor, and two (2) officers were 
dispatched to the scene. When they arrived, the officers 
were advised by the neighbor only that "they are break­
ing in". While one officer reported their arrival to the 
dispatcher, the other went toward the rear of the house. 
As he approached the corner of the house, he heard the 
rear door slam and, rounding the corner, saw with the aid 
of his flashlight the figure of a black male crouching next 
to the fence at the rear of the residence approximately 
thirty to forty feet (30-40') away. Jhg^fficer could not tell 

^whether the man was armed^

The officer shouted "halt" and identified himself. 
After a momentary pause, the suspect sprang to the top 
of the fence, extending half his body over the fence, at 
which time the officer fired, striking the suspect in the

head. The-offirer believed thern i.r-w nr.ry |jftlp nppn^ 
tunity of identification of the suspect for the purpose of 
tutufe arrest if he escaped: there were several obstacles, 
IriHuding a clothesline and other objects outlined in the 
dark, between the officer and the suspect, making pursuit 
almost certainly futile; and the officer was unfamiliar 
with the location and the neighborhood.

The suspect, who was fatally wounded, turned out to 
be a fifteen-year-old who was iinnrmpH nt fhn timn A 
small amount of money and jewelry, shown to have come 
from the residence, was on his person.  ̂It was also later 
learned that the residence was unoccupied at the time of 
the break-in, although this was not known to the officers.

On April 8, 1975, a civil rights action was brought by 
Cleamtee Garner in the United States District Court for 
the Western District of Tennessee pursuant to 42 U.S.C. 
§§ 1981, 1983, 1985, 1986, and 1988 and 28 U.S.C. §§ 1331 
and 1343(3), to seek redress for the fatal shooting of his 
son, Edward Eugene Garner, by an officer of the Mem­
phis I’olice Department. Named as defendants were the 
Memphis Police Department; City of Memphis, Tennes­
see; Wyeth Chandler, Mayor of Memphis; jay W. Hub­
bard, Director of the Memphis Police Department; and 
E.R. Hyman, Police Officer of the City of Memphis.

The complaint alleged that defendant Officer Hyman 
violated the constitutional rights of Edward Eugene Gar­
ner when he shot and killed Garner in an attempt to 
apprehend him while fleeing from a private residence in 
Memphis. The other defendants were sued on grounds 
that their failure to exercise due care in hiring, training, 
and supervision of defendant Hyman made them equally



responsible for Garner's death. All defendants were also 
sued on the grounds that use or authorization to use the 
"hollow point" bullet further caused the deprivation of 
Garner's rights under the Constitution and laws of the 
United States.

On September 18, 1975, defendants filed their 
Answer denying liability, any violation of the Federal 
Civil Rights Statutes, and any deprivation of the 
deceased's constitutional rights. In further answering, 
defendants alleged that the actions of defendant Officer 
Hyman were governed by Tenn. Code Ann. § 40-7-108.

------Trial was held on August 2-4, 1976, without the inter­
vention of a jury. At the conclusion of the plaintiff's proof 
on August 4, 1976, the district court granted a directed 
verdict for defendants Hubbard and Chandler, and a 
partial directed verdict as to the City of Memphis and the 
Memphis Police Department with respect to hiring prac­
tices.

On September 29, 1976, the district court found in 
favor of all defendants on all issues. On appeal, the 
United States Court of Appeals for the Sixth Circuit 
affirmed the judgment of the district court dismissing the 
case against the individual defendants. However, the case 
was remanded as against the City of Memphis for recon­
sideration in light of Motiell v. Department of Social Ser­
vices, 436 U.S. 658 (1978). The court instructed the district 
court to consider the following questions, among others, 
on remand:

1. Whether a municipality has qualified immu­
nity or privilege based on good faith under 
Monell.

2. If not, is a municipality's use of deadly force 
under Tennessee law to capture allegedly 
nondangerous felons fleeing from non­
violent crimes constitutionally permissible 
under the Fourth, Sixth, Eighth, and Four­
teenth Amendments?

On remand, the trial court ordered memoranda and 
oral argument on the issue of whether the trial should be 
reopened. By order dated February 29, 1980, the court 
denied further hearings and dismissed the case on the 
merits, holding that the constitutional claims had already 
been fully adjudicated. Because there had been no consti­
tutional violation, the holding t)f Monell that cities could 
be liable for violations occurring pursuant to a policy or 
custom of the city did not require a different result. 
Plaintiff's motion for reconsideration was granted and he 
was allowed to submit further briefs and make an offer of 
proof. The Judge considered the offer of proof and once 
again ruled against plaintiff in a written opinion dated 
July 8, 1981. The court held that the wisdom of a statute 
permitting the use of deadly force against all fleeing 
felons was a matter of policy for the legislature rather 
than the judiciary, and that the Tennessee statute was 
neither unconstitutional on its face, nor as applied by the 
police officer in this case.

An appeal was again taken to the Sixth Circuit Court 
of Appeals. In its opinion, the Court of Appeals deter­
mined that Tenn. Code Ann. § 40-7-108 was violative of 
the Fourth and Fourteenth Amendments to the United 
States Constitution. The court found that insofar as Tenn. 
Code Ann. § 40-7-108 would permit the use of deadly 
force against a nondangerous felony suspect fleeing a



nonviolent felony, the statute permitted an unreasonable 
and excessive seizure of the person. The court went on to 
hold that the due process provisions of the Fourth and 
Fourteenth Amendments prohibit deadly force except 
where the officer has probable cause to believe that the 
felon is dangerous or has committed a violent crime. The 
case was remanded for further proceedings consistent 
with the opinion.

The City of Memphis filed a Writ of Certiorari to this 
Court, which was granted at 465 U.S. 1098 (1984). In 1985, 
this Court affirmed the ruling of the Sixth Circuit Court 
of Appeals pertaining to the fleeing felon rule, holding 
that the Tennessee statute was unconstitutional insofar as 
it authorized the use of deadly force against unarmed and 
nondangerous fleeing suspects. Tennessff i’. Ciiirncr, 471
U. S. 1, 11 (1985). This Court went on to hold that "|Ilhe 
possible liability of the remaining Defendants - the Police 
Department and the City of Memphis - hinges on MonrII
V. New York Citxf Dt’f’arlmnil of Social Seri’iccs, 436 U S. 658, 
98 s e t .  2818, 56 L.Ed.2d 611 (1978), and is left for 
remand.” Tetwessee v. Garner, 471 U.S. at 23. This Court 
further concluded that "(Ajs for the policy of the Police 
Department, the absence of any discussion of this issue 
by the courts below, and the uncertain state of the record, 
preclude any consideration of its validity.” Tennessee v. 
Garner. Id.

On remand, plaintiff filed a motion for partial sum­
mary judgment as to liability of the City of Memphis and 
Memphis Police Department, which was opposed by 
defendants based upon a subsequent decision by the 
Court of Appeals in Carter v. City of Chattanooga, Tenn., 
850 F.2d 1119 (6th Cir. 1988) (en banc), cert, denied, 488

U.S. 1010 (1989). The district court denied the plaintiff's 
motion for partial summary judgment, granted summary 
judgment for the defendants and dismissed the case.

The plaintiff appealed, and in a split decision, the 
Court of Appeals reversed, granting plaintiff's motion for 
partial summary judgment and remanded the case for a 
hearing on damages.

REASONS FOR GRANTING CERTIORARI
I.

In Monell, this Court held that there are three (3) 
elements necessary to establish liability on the part of the 
municipality; (1) an official "policy or custom”, (2) cre­
ated by the city or department, (3) the execution or imple­
mentation of which caused the particular constitutional 
injury. Monell, 436 U.S. at 694. The Court of Appeals, 
speaking through the majority, found that all of the ele­
ments, including causation, were present, thus establish­
ing liability on the City. They held that the City had a 
policy which was the "moving force of the constitutional 
violation". Id. In so ruling, the court decided a question 
pursuant to 42 U.S.C. § 1983 in a way that conflicts with 
this Court's holding in Monell.

The Departmental Order established by the City of 
Memphis was predicated on the Tennessee fleeing felon 
statute which had passed the test of time, not only by the 
courts of the State, but also federal courts deciding cases 
pursuant to § 1983. Reneau v. Slate, 70 Tenn. 720 (1879); 
Love V. Bass, 145 Tenn. 522, 238 S.W. 94 (1921); Scarbrough 
V. State, 168 Tenn. 134, 76 S.W.2d 106 (1934); Johnson v.



10 11

State, 173 Tenn. 134, 114 S.W.2d 819 (1938); 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); 
Wiley V. Memphis Police Department, 548 F.2d 1247 (6th Cir. 
1977), cert, denied, 434 U.S. 822 (1977); and Slate v. Boles, 
598 S.W.2d 821 (Tenn. Crim. App. 1980).

The City's Departmental Order was not in reality a 
"policy or custom" pursuant to Monell, but an extension 
of well-settled law. Furthermore, even if the City's order 
is considered a policy, since the officer involved was 
merely implementing or executing a long existing statute 
and common law rule, it cannot be said that the policy 
was the moving force of the constitutional violation

II.

Following this Court's opinion in Garner, 471 U S. at 
1, the Sixth Circuit Court of Appeals, sitting en banc, 
decided Carter v. City of Chattanooga, 850 F.2d at 1119. In a 
similar factual situation involving the Tennessee fleeing 
felon statute, the court in Carter held that where a city 
was acting in reliance upon well-established law in carry­
ing out its police powers, there would be no liability 
based upon an unforeseen change in the law. The court 
concluded that a city should not be deterred in the exer­
cise of what it has good reason to believe is constitutional 
conduct in the face of repeated court challenges and that 
"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". Id. at 1131. The Carter Court went on to

.0  \

up

reason that to attach liability against the City of Chat­
tanooga would not only be inequitable, but would have 
"little, if any, effect of furthering the deterrent goal of 
Garner". Id. at 1130.

By holding that the City does not have a good faith 
reliance upon previous judicial decisions, the Sixth Cir­
cuit, in its majority opinion, decided an important ques­
tion of federal law which conflicts with the law in its own 
circuit as established in Carter, and should be settled by 
this Court.

III.

In Carter, the court declined to apply Garner retroac­
tively. The reasoning in Carter as to why the Garner rule 
should not be applied retroactively holds true in the 
instant case. However, the Court of Appeals, in rejecting 
the non-retroactivity analysis in Carter, holds that it is 
basic that a rule should be applied retroactively in the 
very case that establishes the rule. The "law of the case" 
doctrine would ordinarily apply except for the fact that 
following the remand by this Court for a determination of 
the City's liability under Monell, the Carter case was 
decided. Carter establishes an exception to the doctrine 
since a "controlling authority has since made a contrary 
decision of law applicable to such issues." Coal Resources, 
Inc. V. Gulf & Western Industries, 865 F.2d 761, 776 (6th Cir. 
1989).

The holding of the Sixth Circuit that Garner is to be 
applied retroactively is in conflict with decisions in the 
Third and Tenth Circuits. See, e.g., Rodriguez v. City of 
Passaic, 730 F. Supp. 1314 (D.N.J. 1990), aff'd., 914 F.2d 244



12
13

(3rd Cir. 1990); and Mitchell v. City of Sapulpa, 857 F.2d 713 
(10th Cir. 1988).

IV.

The officer involved in the shooting in this case was 
exonerated on evidence that his actions were reasonable 
and that he followed established guidelines. In City of Los 
Angeles v. Heller, 475 U.S. 796, 799 (1986), this Court held 
that if there has been no constitutional injury at the hands 
of the police officer "the fact that the departmental regu- 

. lations might have authorized the use of constitutionally 
excessive force is quite beside the point". The facts in 
Heller are similar in that the evidence shows that the 

/ actions of the police officer were not unreasonable and
f thaTTie was merely obeying orders and following estab-

lished police department policy. Heller, 475 U.S. at 803 
' (Stevens, J., dissenting). The factual similarity between 

the instant case and Heller indicates that the Court of 
Appeals has decided a federal question in a way that 
conflicts with an applicable decision of this Court. The 
City should be absolved of liability.

Although there was no such ruling at the trial level, 
the Court of Appeals concluded that the officer's dis­
missal was not based upon the absence of a constitutional 
violation, but because he was protected by the doctrine of 
qualified immunity. (A18). The court cites Doe v. Sullivan 
County, Tenn., 956 F.2d 545, 554 (6th Cir. 1992]7^f. denielT 
T lT s ^ t .  187 (1992) for the proposition that in the Sixth 
CircritrT^unicipality may not escape liability for a 
§ 1983 violation where the officer involved is entitled to 
qualified immunity. This ruling by the Sixth Circuit _i&-i«

conflict with a decision from the Third Circuit, which 
holds to the contrary. See, e.g., Rodriguez v. City of Passaic. 
730 F. Supp. at 1327-28, aff'd., 914 F.2d 244 (3rd Cir. 1990).

CONCLUSION

For all the foregoing reasons. Petitioners pray that a 
Writ of Certiorari issue to review the judgment and deci­
sion of the United States Court of Appeals for the Sixth 
Circuit in this case.

Respectfully submitted,
III NK1 L. Kl I IN 
(Counsel of Record)
Staff Attorney
2110 One Commerce Square 
Memphis, Tennessee 38103 
(901) 525-1711
Mdnh I Mi x >ki f 1a«.i 1 k 
City Attorney 
Room 314
125 North Main Street 
Memphis, Tennessee 38103-2079 
(901) 576-6614
Attorneys for Petitioners



A1

APPENDIX
IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION

CLEAMTEE GARNER, Father and 1
next-of-kin of EDWARD EUGENE 1
GARNER, a deceased Minor, 1

Plaintiff, 1 No. C-75-145-H 
1

V.

MEMPHIS POLICE DEPARTMENT,
1
11

el al.. 11
Defendants.

1
1

ORDER DENYINC', PLAINTIFF'S MOTION FOR 
PARTIAL SUMMARY JUDGMENT 

GRANTING SUMMARY JUDGMENT FOR THE 
DEFENDANTS AND DISMISSING CASE

(Filed Jun. 30, 1992)

This case is presently before the court on remand 
from the United States Supreme Court's decision in Ten­
nessee V. Garner, 471 U S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 
(1985), affirming the Sixth Circuit Court of Appeals' deci­
sion in Garner i>. Memphis Pnliee Depl., 710 I'.2d 240 (6th 
Cir 1983).' Plaintiff has filed a motion for partial sum­
mary judgment as to the liability of the two remaining

‘ This decision is referred to as the Garner II. Garner i>. City 
of Memphis, 600 F.2d 52 (6lh Cir. 1972) is referred to as Garner I.



A2

defendants in this case, the City of Memphis and the 
Memphis Police Department. Defendants oppose the 
motion and, by supplemental response, argue that the 
Sixth Circuit's subsequent decision in Carter v. City of 
Chattanooga, Tenn., 850 F.2d 1119 (6th Cir. 1988) (en banc) 
{cert, denied, 488 U.S. 1010, 109 S.Ct. 795 (1989)), requires 
that judgment be entered for defendants, and that the 
case be dismissed. This court agrees.

The facts of this case have been clearly set out in the 
previous decisions by the Supreme Court, the Sixth Cir­
cuit Court of Appeals and this court. Accordingly, the 
court will not repeat them. Furthermore, it is worth men­
tioning at this point that the relevant facts concerning the 
shooting in this case and in the Carter case arc strikingly 
similar, thereby lending additional support for this deci­
sion.

In analyzing the issue of defendants' liability, the 
court begins with the Supreme Court's decision in Tennes­
see V. Garner, supra. There the Court stated that

We wish to make clear what our holding means 
in the context of this case . . . We hold that the 
statute is invalid insofar as it purported to give 
Hymon the authority to act as he did. As for the 
policy of the Police Department, the absence of 
any discussion of this issue by the courts below, 
and the uncertain state of the record, preclude 
any consideration of its validity.

471 U.S. at 23.

Based on the above and the Carter decision, the court 
looks upon the panel decision in Garner II with some 
hesitancy where the Court stated that "there is not good

A3

faith immunity for municipalities under § 1983." 710 F.2d 
at 248. To the contrary, the Court in Carter stated that

in applying the Chevron Oil analysis in this case, 
we conclude that Garner II and Tennessee v. Gar­
ner should not have been retroactively applied 
to the City of Chattanooga. On that basis, the 
defendant City would be entitled to judgment as 
a matter of law . . . He [the fudge) should have 
granted judgment as a matter of law to the City 
because it was not at the time following a clearly 
established unlawful or unconstitutional policy.

850 F.2d at 1137.

Upon considerable reflection, the court can find no 
basis upon which to distinguish the Carter decision from 
this case and the issue presently before court. It seems the 
Carter decision in effect overturned that part of the Garner 
II decision, holding that municipalities do not have a 
defense to a § 1983 claim based on their reliance on a 
policy or course of conduct previously determined to be 
within constitutional limits.

For the reasons stated in this opinion and in Carter v. 
City of Chattanooga, Tenn., 850 F.2d 1119 (6th Cir. 1988) (en 
banc) (cert, denied, 488 U.S. 1010, 109 S.Ct. 795 (1989)), the 
court hereby DENIES plaintiff's motion for partial sum­
mary judgment. For the same reasons, the court enters 
summary judgment for the remaining defendants, the 
City of Memphis and the Memphis Police Department. 
This case is therefore DISMISSED and closed.



A4

It is so ORDERED this the ^  day of June, 1992.

/s/ Odell Horton
ODELL HORTON,
CHIEF JUDGE 
UNITED STATES 
DISTRICT COURT

A5

RECOMMENDED FOR FULL-TEXT PUBLICATION 
Pursuant to Sixth Circuit Rule 24

No. 92-6196
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

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D e c i d e d  a n d  F i l e d  O c t o b e r  22 , 1993

Before: MERRITT, Chief Judge; and KEITH and
SUHRHEINRICH, Circuit Judges.

MERRITT, Chief Judge, delivered the opinion of the 
court, in which KEITH, Circuit Judge, joined. SUHR­
HEINRICH, Circuit Judge (pp. 15-22), delivered a sepa­
rate dissenting opinion.

MERRITT, Chief Judge. This is a wrongful death 
action brought under 42 U.S.C. § 1983 which has now 
been to this court three times and once to the Supreme 
Court. It involves the fatal shooting by a Memphis police



A6

officer of a fifteen-year-old fleeing felony suspect under 
circumstances which this court and the Supreme Court 
have held violated the Fourth Amendment right to be 
free from unreasonable seizure. Garner v. Memphis Police 
Dept., 710 F.2d 240 (6th Cir. 1983); Tennessee v. Garner, 471 
U.S. 1 (1985). The case was back before the district court 
on remand from the Supreme Court for consideration of 
whether the shooting occurred pursuant to municipal 
"policy" under Monell v. Nen> York City Dept, of Social 
Services, 436 U.S. 658 (1978). On remand, the district court 
held that the Supreme Court's ruling in this case should 
not be applied retroactively to this case Accordingly, the 
court entered summary judgment in favor of the defen­
dants, and denied plaintiff’s motion for partial summary 
judgment on the issue of liability Plaintiff appeals both 
rulings. We reverse the district court's grant of summary 
judgment in favor of the defendants and its denial of 
plaintiff's partial summary judgment motion We also 
remand for entry of an order granting plaintiff's motion 
for partial summary judgment and for a determination of 
damages.

On the night of October 3, 1974, a fifteen-year-old, 
unarmed boy broke a window and entered an unoccupied 
residence in suburban Memphis to steal money and prop­
erty. Two police officers, Elton Hymon and Leslie Wright, 
were called to the scene by a neighbor. The officers inter­
cepted the youth as he ran from the back of the house to a 
six foot cyclone fence in the back yard. After shining a 
flashlight on the boy as he crouched by the fence. Officer 
Hymon identified himself as a policeman and yelled

A7

"Halt." He could see that the fleeing felony was a youth 
and was apparently unarmed. As the boy jumped to get 
over the fence, the officer fired at the upper part of the 
body, as he was trained to do by his superiors at the 
Memphis Police Department. He ^ o t  because he believed 
the boy would elude capture in the dark once he was 
over the fence. The youth died of the gunshot wound. On 
his person was ten dollars worth of money and jewelry 
he had taken from the house.

Officer Hymon had been taught that it was proper 
under Tennessee law to kill a fleeing felon rather than run 
the risk of allowing him to escape. A Tennessee statute 
provided that "lijf, 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." 
Tenn. Code Ann. § 40-7-108.' The Memphis Police Depart­
ment's policy on use of deadly force was slightly more 
restrictive than the statute, but still allowed the use of 
deadly force in cases of burglary. Tennessee v. Garner, 471 
U.S. at 5. The Police Department's policy was promul­
gated by the Department's Director, with the consultation 
and approval of the Mayor.

Decedent's father filed this action under 42 U.S.C. 
§ 1983 to recover damages for wrongful death caused by 
claimed constitutional violations of the Fourth, liighth 
and I'ourteenth Amendments. Ihe complaint named as 
defendants Officer Hymon, the Police Department, its

' At the time of the shooting, this statement was codified 
at Tenn. Code Ann. § 40-808.



A8

Director, the City of Memphis, and the Mayor of Mem­
phis. After a three day bench trial, the district court 
dismissed the claims against the Director and the Mayor 
for lack of evidence. It also dismissed the claims against 
Officer Hymon, holding that his actions were authorized 
by the Tennessee statute, which the court held was consti­
tutional. In accordance with Monroe v. Pape, 365 U.S. 167 
(1961), the district court also dismissed the claims against 
the City and the Police Department holding that a city is 
not a "person" subject to suit under § 1983.

On appeal, this court affirmed the district court s 
dismissal of the individual defendants, holding that they 
were protected by the doctrine of qualified immunity 
because they acted in got>d faith reliance on Tenn. Code 
Ann. § 40-7-108. Garner v. Memphis Police Ih’pt . 600 F2d 
52 (6th Cir. 1979) (Garner /). We also remanded for recon­
sideration of the possible liability of the City and Police 
Department in light of Monell v. Department of Social Ser­
vices, 436 U.S. 658 (1978), which had come down after the 
district court's decision.

Because Monell held that a city may be liable in 
damages under § 1983 for constitutional deprivations that 
result from a "policy or custom" followed by the city, 436 
U.S. at 694, 700-01, we instructed the district court to 
consider the following: (1) whether a municipality enjoys 
qualified immunity; (2) whether the use of deadly force 
was unconstitutional under the circumstances; (3) 
whether the use of hollow point bullets was unconstitu­
tional; and (4) whether any unconstitutional municipal 
conduct flowed from a "policy or custom" under Monell. 
Garner I, 600 F.2d at 54-55.

A9

On remand, the district court ordered memoranda 
and oral argument on the issue of whether the trial 
should be reopened. Upon consideration of the parties' 
submissions, the court denied further hearings and dis­
missed the case on the merits, holding that the constitu­
tional claims had already been fully adjudicated. Because 
there had been no constitutional violation, the holding of 
Monell that cities could be liable for violations occurring 
pursuant to a policy or custom of the city did not require 
a different result. Plaintiff's motion for reconsideration 
was granted and he was allowed to submit further briefs 
and make an offer of proof. The court considered the 
»)ffer of proof and once again ruled against plaintiffs. It 
held that the wisdom of a statute permitting the use of 
deadly force against all fleeing felons was a matter of 
policy for the legislature rather than the judiciary, and 
that the Tennessee statute was not unconstitutional on its 
face, nor as applied by the police officer in this case.

Addressing the question of the City's good faith 
immunity, the district court held that Owen v. City of 
Imlependence, 445 U.S. 622 (1980), prevented the City from 
claiming immunity from liability based on the good faith 
of its agent. Nevertheless, it found that it was still an 
open question whether the City might claim immunity if 
the City itself was relying in good faith on the Tennessee 
law as interpreted by the federal and state courts. The 
ilistrict court did not believe it necessary to address the 
constitutionality of the use of hollow point bullets, 
because it found that there was no causal connection 
between the use of hollow point bullets and Garner's 
death.



AlO

We reversed and remanded, holding that Memphis' 
deadly force policy, as applied to this case, violated the 
Fourth Amendment right to be free from unreasonable 
seizures. Garner v. Memphis Police Dept., 710 F.2d 240, 246 
(6th Cir. 1983) {Garner II). We held that police officers 
cannot resort to deadly force to apprehend fleeing felons 
unless they have "probable cause—an objective, reason­
able basis in fact to believe that the felon is dangerous or 
has committed a violent crime." Id. The Supreme Court 
granted certiorari and affirmed. The Court held that the 
Tennessee statute "is invalid insofar as it purported to 
give Hymon the authority to act as he did." Tennessee u 
Garner, 471 U.S. at 22. Eight years ago the case was 
remanded to the district court for resolution of the Monell 
issue, and there is languished.

On remand, plaintiff filed a motion for partial sum­
mary judgment on the issue of the liability of the City and 
Police Department under Monell. Plaintiff attached twt) 
exhibits to the motion. The first was a copy of General 
Order No. 5-74, the Police Department policy statement 
authorizing use of deadly force in certain circumstances. 
The second exhibit was deposition testimony by the 
Mayor of Memphis, in which the Mayor states that he 
considered whether all types of burglary should be 
included on the list of felonies justifying the use of 
deadly force, and concluded that they should. Defendants 
responded to the motion by asserting various legal argu­
ments; they did not submit any additional evidence.

Last year, the district court finally denied plaintiff's 
motion for partial summary judgment and granted sum­
mary judgment in favor of the defendants, holding that, 
under Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir.

A l l

1988) (en banc), cert, denied, 488 U.S. 1010 (1989), the 
Supreme Court's ruling in Tennessee v. Garner should not 
be applied retroactively to the parties. The court then 
dismissed the case. Plaintiff filed this timely appeal, chal­
lenging both the grant of summary judgment in favor of 
the defendants and the denial of plaintiff's motion for 
summary judgment.

II.

We first consider the district court's holding that 
defendants are not liable because of their good faith 
reliance on previous judicial determinations that their 
fleeing felon policy was constitutional. The court based 
Its decision upon Carter i>. C/fy of Chattanooga, Tenn., 850 
F2d 1119 (6th Cir. 1988) (en banc), cert, denied, 488 U S. 
1010 (1989). In Carter, a case factually similar to this one, 
this court held that "Tennessee v. Garner should not have 
been retroactively applied to the City of Chattanooga. . . . 
jThe City] was not at the time following a clearly estab­
lished unlawful or unconstitutional policy." Id. at 1137. 
Carter's retroactivity analysis is clearly not relevant to the 
instant case. In Tennessee v. Garner, the Supreme Court 
applied its ruling retroactively to these parties. Neither 
this court nor the district court is free to reexamine the 
Supreme Court's ruling and reach a different conclusion. 
Moreover, this case is itself the case in which the Supreme 
Court declared the fleeing felon rule, and it Ts Tidrnbook 
law that the rule should be applied retroactively in the 
very case that lays down a rule. Otherwise parties would 
have no incentive to argue for such a rule because they 
would get no benefiTTroni" winning the case.



A12

Although the Supreme Court did not explicitly state 
that its holding was to be applied retroactively to the 
parties before the Court, the Court's intent is unmistak­
able:

We wish to make clear what our holding means in 
the context of this case. . . . The possible liability 
of the remaining defendants—the Police Depart­
ment and the city of Memphis—hinges on Mon- 
ell V. New York City Dept, of Social Services, 436 
U S. 658 (1978), and is left for remand. We hold 
that the statute is invalid insofar as it purported 
to give Hymon the authority to act as he did. As 
for the policy of the Police Department, the 
absence of any discussion of this issue by the 
courts below, and the uncertain state of the 
record, preclude any consideration of its val­
idity.

Tennessee v. Garner, 471 U.S. at 22 (emphasis added).

The conclusion that the Supreme Court intended its 
holding to be applied to the parties before the Court is 
compelled by the reasoning of lames B. Beam Distilling Co.
V. Georgia, 111 S. Ct. 2439 (199). In Beam, the Court consid­
ered whether its holding in Bacchus Imports v. Dias, 468
U. S. 263 (1984), should be retroactively applied in other 
cases pending when Bacchus was decided. As in Tennessee
V. Garner, the Supreme Court in Bacchus had remanded 
the case to the district court for further proceedings with­
out explicitly stating that the rule established in the case 
was to be applied retroactively to the parties before the 
Court. The Beam court held unanimously that BaceJuisL  
silence on the retroactivity issue indicated that the Court 
intended toTlonow the usual practice of applying its 
decision to the parties before it. See Beam, 111 S. Ct. at

A13

2445 (plurality opinion) ("Because the Bacchus opinion 
did not reserve the question whether its holding should 
be applied to the parties before it . . .  it is properly 
understood to have followed the normal rule of retroac­
tive application in civil cases."); see also id. at 2451 
(O'Connor, ]., dissenting) ("1 agree that the Court in 
Bacchus applied its rule retroactively to the parties before 
it. The Bacchus opinion is silent on the retroactivity ques­
tion. Given that the usual course in cases before this 
Court is to apply the rule announced to the parties in the 
case, the most reasonable reading of silence is that the 
Court followed its customary practice "). The same rea­
soning applies to Tennessee v. Garner.

The Supreme Court intended its ruling in this case to 
be applied retroactively to the parties. The defendants do 
not, therefore, have a non-retroactivity defense based 
upon their good faith reliance upon previous judicial 
decisions. Because the district court's grant of summary 
judgment in favor of the defendants was based solely 
upon a retroactivity analysis, the court's ruling must be 
reversed.

III.

We now consider the district court's denial of plain­
tiff's motion for partial summary judgment on the ques­
tion of liability. A denial of summary judgment is an 
interlocutory order, not ordinarily subject to appeal. 
Nazay v. Miller, 949 F.2d 1323, 1328 (3rd Cir. 1991). Where, 
however, an appeal from a denial of summary judgment 
is presented in tandem with an appeal from a grant of 
summary judgment, this court has jurisdiction to review



A14

the propriety of the district court's denial of summary 
judgment. Id.

Plaintiff's motion for partial summary judgment 
asserts that there remain no genuine issues of material 
fact, and that the law clearly establishes defendants' lia­
bility. Defendants' response to the summary judgment 
motion raises only legal arguments and does not assert 
that there remain genuine issues of material fact. Where a 
motion for summary judgment is denied on the grounds 
that there exists a genuine issue of material fact, review 
of this ruling is under the abuse of discretion standard. 
Pirwry Dock and Transport Co v. Penn Cent. Corp., 83H F- 2d 
1445, 1472 (6th Cir ), cert, denied. 488 U.5 880 (W88) 
Where, however, a denial of summary judgment is based 
solely upon legal grounds, review is de novo See Pnyene 
D. V. Karntan, 889 F 2d 701, 706 (6th Cir. 1989), cert, denied. 
496 U.S. 931 (1990). Because the district court denied 
plaintiff's partial summary judgment motion solely upon 
legal grounds, we review this denial de novo.

As the Supreme Court stated, defendants' liability 
hinges on Monell. Tennessee v. Garner, 471 U.S. at 22. In 
Monell, the Supreme Court overruled Monroe v. Pape, 365 
U.S 167 (1961), and held that municipalities are "persons" 
subject to suit under § 1983. Monell, 436 U.S. at 700-01. 
Municipalities are not, however, liable for every misdeed 
of their employees and agents. "Instead, it is when execu­
tion of a government's policy or custom, whether made 
by its lawmakers or by those whose edicts or acts may 
fairly be said to represent official policy, inflicts the injury 
that the government as an entity is responsible under 
§ 1983." Id. at 694. This circuit has stated that to satisfy 
the Monell requirements a plaintiff must "identify the

A15

policy, connect the policy to the city itself and show that 
the particular injury was incurred because of the execu­
tion of that policy." Coogan v. City of VJixom, 820 F.2d 170, 
176 (6th Cir. 1987) (adopting the test articulated in Bennett 
V. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc), 
cert, denied, 472 U.S. 1016 (1985)). Plaintiff has met this 
standard.

First, it is clear that the defendants had a policy 
authorizing use of deadly force when necessary to appre­
hend a flecTng burglary suspect. Memphis Police Depart- 
men rT^erunTTOrder 5-74(3)(b)(3) provides:

(3) Other Felonies Where Deadly Force is 
Authorized.

After all reasonable means of preventing or 
apprehending a suspect have been exhausted, 
DEADLY f'OKCE is authorized in the following 
crimes:

(a) Kidnapping
(b) Murder in the 1st or 2nd degree
(c) Manslaughter
(d) Arson (Including the use of firebombs)
(e) Rape
(f) Assault and battery with intent to carnally 
know a child under 12 years of age
(g) Assault and battery with intent to commit 
rape
(h) Burglary in the 1st. 2nd. or 3ri/ degree
(i) Assault to commit murder in the 1st or 2nd 
degree



A16

(j) Assault to commit voluntary manslaughter
(k) Armed and simple robbery

App. 81 (emphasis added). This order was signed by the 
Director of the Memphis police. The Mayor of Memphis 
testified in a deposition that he was also involved in the 
decision to include all types of burglary on the list of 
felonies justifying use of deadly force: "One of the argu­
ments was to eliminate burglary and this type thing, 
some kinds of burglary, which I did not do. I did not 
think it should be done." App. 103. Defendants do not 
contest that General Order 5-74 represented the official 
policy of the Memphis Police Department and the City of 
Memphis.

Defendants argue instead that it was not a policy 
under the Monell line of cases because it did not represent 
a "deliberate choice to follow a course of action . . . from 
among various alternatives." Penibaur v. Ciiy of Ciiiciiwali, 
475 U.S. 469, 483 (1986). In devising their fleeing felony 
policy, defendants relied on a Tennessee statute, Tenn. 
Code Ann. § 40-7-108:

Resistance to Officer -  If after notice of the inten­
tion to arrest the defendant, he either flee or 
forcibly resist, the officer may use all the neces­
sary means to effect the arrest.

Defendants argue that they had no choice but to follow 
this statute.

This argument is without merit. The defendants were 
bound to follow the statute in that they could not adopt a 
more permissive deadly force policy by, for example, 
eliminating the requirement that an officer give notice of 
an intention to arrest before employing deadly force. The

A17

statute did not, however, prevent the defendants from 
adopting a more restrictive deadly force policy. In fact, 
defendants did exercise their freedom to choose a more 
restrictive policy, refusing to authorize use of deadly 
force to apprehend certain non-violent felony suspects 
such as embezzlers and frauds. App. 93; see also Tennessee 
V. Garner, 471 U.S. at 5 (noting that Memphis' policy was 
slightly more restrictive than the Tennessee statute). 
Defendants' decision to authorize use of deadly force to 
apprehend nondangerous fleeing burglary suspects was, 
therefore, a deliberate choice from among various alter­
natives under Pembaur.

Having identified the policy and connected it to the 
defendants, plaintiff need only show that the policy 
caused the injury complained of, the death of plaintiff's 
son. See Coogan, 820 F.2d at 176. Defendants did not in 
their briefs or at oral argument contest the causation 
issue. The Police Department taught Officer Hymon that 
it was proper to shoot a fleeing burglary suspect in order 
to prevent escape. That was their policy. Garner /, 600 F.2d 
at 53. As the Supreme Court stated in this case, "Hymon 
was acting under the authority of a Tennessee statute and 
pursuant to Police Department policy." Tennessee v. Gar­
ner. 471 U.S. at 4. Thus, there is a sufficient link between 
defendants' deadly force policy and Hymon's actions to 
establish that the policy was the "moving force of the 
constitutional violation." See Monell, 436 U.S. at 694. 
Plaintiff has satisfied all of the Monell requirements.

Defendants raise two additional objections to plain­
tiff's motion for partial summary judgment. First, they 
argue that the Police Department and the City should be



A18

dismissed from the case because the district court dis­
missed Officer Hymon, finding that he had not commit­
ted a constitutional violation. Ihe district court found 
that Officer Hymon "acted within his duties as a reason­
able police officer without malice, predisposition or racial 
animus and within the guidelines afforded him as a 
Memphis policeman." Defendants rely upon City of l.os 
Angeles v. Heller, 475 U.S. 796 (1986), in which the Court 
upheld the district court's dismissal of the City of l.os 
Angeles and its Police Commission, holding that "li|f a 
person has suffereil no ci>nstitutional injury at the hands 
of the individual police officer, the fact that the tlepart- 
mental regulations might have iiulhorizeJ the use of con­
stitutionally excessive force is quite beside the point U 
at 799.

Defendants' reliance on Heller is misplaced Ihe point 
in Heller was that the city could not be held responsible 
for a constitutional violation which could have occurred 
but did not. In the instant case there is no doubt that a 
constitutional violation occurred. "A police officer may 
not seize an unarmed, nondangerous suspect by shooting 
him dead. The Tennessee statute is unconstitutional inso­
far as it authorizes the use of deadly force against such 
fleeing suspects." Tennessee v. Garner, 471 U.S. at 11. The 
district court's holding to the contrary was overturned by 
this court, and the Supreme Court affirmed. Garner II, 710 
F.2d 240; Tennessee v. Garnery |sic], 471 U.S. 1.

This court upheld Officer Hymon's dismissal from 
the case not because he committed no constitutional vio­
lation, but because he was protected by the doctrine of 
qualified immunity. Tennessee v. Garner, 471 U.S. at 5; 
Garner II, 710 F.2d at 242; Garner I, 600 F.2d at 54. Under

A19

the law of this circuit, a municipality may not escape 
liability for a § 1983 violation merely because the officer 
who committed the violation is entitled to qualified 
immunity. Doe v. Sullivan County, Tenn., 956 F.2d 545, 554 
(6th Cir.), cert, denied, 113 S. Ct. 187 (1992).

Defendants' final argument is that a municipality 
may be held liable under § 1983 only if its policy reflects 
"deliberate indifference" to constitutional rights under 
City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). 
They argue that they w'cre not "indifferent" to the consti­
tutional rights of fleeing felony suspects, but developed 
their policy in the good faith belief that it was within 
conslilulional limits Harris addressed the question under 
what circumstances a municipality is liable if a con- 
cededly valid policy is unconstitutionally applied by a 
municipal employee" because of the municipality s fail­
ure to adequately train that employee. Harris. 489 U.S. at 
.387.

Harris is a "failure to train" case, and is not on point. 
I he "deliberate indifference " test is employed to deter­
mine when "inadequate training can justifiably be said to 
represent 'city policy.' " Id. at 390. In the instant case 
there is no question that General Order 5-74 can justifia­
bly be said to represent City policy. The distinction 
between the type of case to which Harris is properly 
applied and the case at bar is apparent from the follow 
Isic) passage from Harris, in which the Court illustrates 
how the "deliberate indifference" test would be applied 
in a variation on the Tennessee v. Garner fact pattern:

For example, city policymakers know to a moral 
certainty that their police officers will be 
required to arrest fleeing felons. The city has



A20

armed its officers with firearms, in part to allow 
them to accomplish this task. Thus, the need to 
train officers in the constitutional limitations on 
the use of deadly force, see Tennessee v. Garner,
471 U.S. 1 (1985), can be said to be "so obvious," 
that failure to do so could properly be charac­
terized as "deliberate indifference" to constitu­
tional rights.

Id. at 390 n.lO. This case is not a variation on Tennessee v. 
Garner, it is Tennessee v. Garner. There is no need for an 
elaborate analysis of whether the defendants' failure to 
act was the result of such "deliberate indifference" that it 
was essentially a matter of policy bar from failing to tram 
their officers in the constitutional limitations on the use 
of deadly force, defendants trained their officers to 
exceed these limitations That the defendants did not 
intend to violate the Constitution is no defense In Hams, 
"deliberate indifference" refers to indifference to in)uries 
likely to result from a failure to act, not indifference to 
whether such injuries constitute deprivation of a constitu­
tional right.

Having decided that plaintiff's motion for partial 
summary judgment should have been granted, the only 
remaining question is the appropriate disposition of the 
case. Under 28 U.S.C. § 2106, this court has jurisdiction to 
"remand the cause and direct the entry of such appropri­
ate judgment, decree, or order, or require such further 
proceedings to be had as may be just under the circum­
stances." In a case such as this, where both sides have 
had an opportunity to present evidence, the facts are 
uncontroverted, and the proper disposition is clear, this 
court may direct the entry of summary judgment. See 
Nazay, 949 F.2d at 1328; Weber v. Dell, 804 F.2d 796, 798 n.2

A21

(2d Cir. 1986), cert, denied, 483 U.S. 1020 (1987); Morgan 
Guaranty Trust Co. v. Martin, 466 F.2d 593, 600 (7th Cir. 
1972).

Accordingly, we REVERSE the district court's grant 
of summary judgment in favor of the defendants and its 
denial of plaintiff's partial summary judgment motion. 
We also REMAND with directions that the district court 
enter an order of partial summary judgment in favor of 
the plaintiff on the issue of liability. The only issue 
remaining for the district court to resolve upon remand is 
the appropriate measure of damages.

SUHKHEINRICH, Circuit Judge, dissenting. The 
majority reverses the district court's decision and grants 
summary judgment in favor of Garner on the issue of 
liability. Because I believe that the majority's actions 
ignore the facts of this case and the law of this circuit, I 
must respectfully dissent.

I.

This case began eighteen years ago when Officer 
Hymon, a young black policeman with the Memphis 
Police Department, shot and killed Edward Garner, 
another young black man who, though unarmed, was 
attempting to avoid arrest for the burglary he had just 
committed. Officer Hymon's decision, made in a split 
second and under potentially-threatening conditions, has 
been evaluated and re-evaluated in courtrooms from the 
Western District of Tennessee to the United States 
Supreme Court.



A22

Ihis litigation has spanned and, in some instances, 
created many of the most profound changes in the law 
surrounding actions brought under 42 U S C. § In
1975, when this suit was filed, it was absolutely clear that 
the City and the Police Department, the only remaining 
defendants in this case, could not even be sued under 
§ 1983.' Moreover, it was virtually undisputed that a 
police officer could use all reasonably necessary force, 
including deadly force, to stop a fleeing felon. Ihe len- 
nessee legislature adopted the common law "fleeing 
felon" rule before the turn of this century, Tenn Coile 
Ann. § 40-7-108, and that statute had withstood repeated 
state ami federal jiulicial scrutiny.

Officer Hymon's conduct was assailed as unconslilu 
tional despite the fact that the lennessee statute and llu- 
long-standing common law rule specifically authori/nl 
the use of deadly force in such circumstances In 197fi, the 
district court entereil judgment in favor of the defendants 
on the grounds that the shooting of young Garner was 
not a violation of the United States Constitution

This court affirmed the district court's judgment as to 
the individual defendants but remanded for reconsidera­
tion in light of Monell v. Department of Social Services, 436 
U.S. 658 (1978), which had held that municipalities could

' See Monroe v. Pape, 365 U.S. 167 (1961) (municipalities not 
"persons" within the meaning of § 1983), overruled bi/ Monell v. 
Department of Social Services, 436 U.S. 658 (1978). Originally, the 
City and the Department, not amenable to suit under § 1983, 
were sued directly under the Fourth and Fourteenth Amend­
ments and the general federal question statute, 28 U.S.C. § 1331, 
in a Biuens-style action. See Bivens v. Six Unknown Named Agents, 
403 U.S. 388 (1971).

A23

be sued under § 1983.  ̂ The district court again entered 
judgment for the City and the Department, again on the 
grounds that there had been no constitutional depriva­
tion. This court again reversed, holding that Officer 
Hymon's actions violated the Fourth and Fourteenth 
Amendments.'’ That decision was affirmed by the United 
States Supreme Court and the case was once again 
remanded to the district court for consideration of the 
City's and Department's liability under MonellA Again, 
the district court found no liability, this time on the 
grounds that intervening case law in this circuit prevents 
a city from being held liable for ''Cartier shootings that 
occurred before the Supreme Court's ruling on that issue. 
Now, again, this ccnirt is determined to reverse.

A. Monell

It has been clear, at least since 1978, that liability in 
this case, if any, must be determined under Monell. The 
majority, continually dissatisfied with the district court's 
results, now enters summary judgment itself against the 
City and the Department on that basis. The majority errs, 
in my view, because the facts of this case, as presented in 
the record before us, do not support Monell liability.

The majority correctly sets forth the three elements of 
Monell liability; (1) an official "policy" or "custom" (2)

 ̂ Garner v. Memphis Police Dep t, 600 F.2d 52 (6th Cir. 1979). 
’ Garner v. Memphis Police Dep t, 710 F.2d 240 (6th C ir. 1983) 

(hereinafter "Garner 11").
Tennessee v. Garner, 465 U.S. 1098 (1985) (hereinafter "Gar­

ner").



r
A24 A25

created by fhc city or department, (3) the execution or 
implementation of which caused the particular constitu­
tional injury. Maj. Op. at 8. See Alone//, 436 U S. at 6S4. I he 
majority identifies the policy upon which it would base 
liability, Memphis I’olice Department General Order 
5-74-(3)(b){3), and lu)lds that it is the official product of 
departmental and city policymakers. Maj. Op. at 8-9 1 
have no quarrel with the majority over these assessments. 
The majority's error, I believe, lies with its analysis of the 
third Monell element:

Having identified the policy and connected it to 
the defendants, plaintiff need only show that the 
policy laiised the injury complained of, the death 
of the plaintiff's son Defendants do not lontest the 
eaiisation issue

Id. at 9 (emphasis added).

I disagree. The City and the Department have done 
nothing for the last eighteen years but contest the fact 
that this policy caused Garner's^ileath. The defendants 
have consistently and urgently pleaded with this court 
and the district court to understand that Officer Hymon 
acted under the authority of Tennessee state law, a law 
that governed the conduct of all Tennessee law enforce­
ment. Now, simply because the Department and the City 
took upon themselves the task of drafting a more restric­
tive—but, in the exercise of hindsight, still unconstitu­
tional-policy, the majority is holding them liable.^

5 Given this court's decision in Carter v. City of Chattanooga, 
850 F.2d 1119 (6th Cir. 1988) (en banc), cert, denied, 488 U.S. 1010 
(1989), discussed infra, the City and the Department in this case 
will most assuredly be the only entities held liable for acting in

Id hold the Department and the City liable, however, 
the majority must ignore the third Monell element: causa­
tion. The policy upon which the majority fixes liability is 
Departmental Order 5-74. The majority makes no mention 
of the fact that the order is dated February 5, 1974, only 
eight months before Officer Hymon shot Garner and more 
than six months after Officer Hymon's initial eight-week 
training course that he received upon joining the Depart­
ment. There is no evidence that Officer Hymon was ever 
trained under Departmental Order 5-74. On the other 
hand, the record contains every indication that Officer 
Hymon was trained on the use of deadly force according 
to the guidelines established by the Tennessee legislature 
and the common law.

liven if the majority's assumption is correct, that 
between February and October of 1974, Officer Hymon 
was informed of Departmental Order 5-74, it is illiigical to 
assume that he was instructed as to anything other than 
how the new policy differed from the state guidelines and 
common law rule he had already been taught.

It is not disputed that Officer Hymon's actions that 
night came within that portion of the fleeing felon rule 
that Departmental Order 5-74 left unchanged. He had 
been taught, before Departmental Order 5-74 was ever 
written, that he was allowed, even duty-bound, to use 
deadly force in such situations, provided it was reason­
ably necessary in order to effect the arrest. Officer

reliance upon the hundreds of years of the fleeing felon rule, at 
least in this circuit.



A26

Hymon was not "executing" or "implementing" Depart­
mental Order 5-74 when he shot Garner; he was acting as 
he had been taught to act, in accordance with a one- 
hundred-and-sixteen-year-old statute and a common law 
rule that had existed for hundreds of years. Therefore, it 
cannot be said that the Department's policy was the 
"moving force of the constitutional violation."

The majority is impaled upon the horns of a 
dilemma. It cannot hold the City and the Department 
liable for failing to ilrafl a constitutional policy or for 
failing lo train its officers in the constitutional use of 
deailly force. 1 hese theories reijuire a showing of the 
City's and the Department's "deliberate indifference" lo 
the rights of arrestees Such a showing is impossit l̂e m 
this case due lo the centuries of approval courts had 
given the fleeing felon rule. Nor can the ma)oritv rest 
liability on the statute or the common law, the patently 
obvious "moving forces" here, because these cannot be 
fairly attributed to the City. Ihe majority's only means of 
holding the City and the Department liable, therefore, is 
to assert that Departmental Order 5-74 killed (iarner, 
despite the fact that there is no evidence to support a 
conclusion that Officer Hymon was "executing" or 
"implementing" that policy, rather than the statute or 
common law, when he shot Garner.*’

*> Ironically, the majority cannot even assert that the Depart­
ment is liable for failing to train its officers under the new policy 
in a more timely manner because the new policy made no 
change to the fleeing felon rule relevant to the shooting of 
Garner.

A27

B. Carter

In 1982, after the shooting in this case but before the 
Garner decision, a Chattanooga police officer shot and 
killed a fleeing burglary suspect. Carter v. Ci7y of Chat­
tanooga, 850 F.2d 119 (6th Cir. 1988) (en banc), cert, denied, 
488 U.S. 1010 (1989). In Carter, therefore, neither the City 
of Chattanooga nor its police department had any more 
reason to believe that the common law rule or Section 
40-7-108 of the Tennessee Code were unconstitutional 
than did the City and the Department in the case before 
us now On those grounds, in Carter, a majority of this 
C ourt en banc held that Ihe city was not liable for the 
unconstitutional shooting. I he majority in this case, how­
ever, refuses lo adhere lo this holding.

Ihe court in Carter reasoned that it would be point­
less and ineijuitable lo impose liability for a city's failure 
to foresee fhe Supreme Court's decision in Garner, 
because Garner "established a new and unexpected prin­
ciple of law setting aside clear precedent, particularly in 
this circuit, on which the City of Chattanooga and its 
police officers had a right to rely." Carter, 850 K2d at 1129 
(emphasis added). I’ointless, because to impose liability 
would "have little, if any, effect of furthering the deter­
rent goal of Garner." Id. at 1130. Inequitable, because the 
City of Chattanooga "was more than merely exercising 
good faith |as to a murky area of the law); it was acting in 
reliance on what appeared tiver many years to have been 
valid and proper state directed police conduct and pol­
icy." Id. at 1131.

The district court, in the present case, found "no 
basis upon which to distinguish the Carter decision from



A28

this case and the issue presently before the court." 
Accordingly, it entered summary judgment in favor of the 
City and the Department. The majority rejects the district 
court's conclusion and asserts that Carter has no impact 
because "the Supreme Court intended its ruling in [Gar­
ner] to be applied retroactively to the parties." In this 
single utterance, the majority misconstrues both the Car­
ter and the Garner decisions.

The Supreme Court's holding in Garner was carefully 
limited to declaring unconstitutional the actions of officer 
Hymon and the Tennessee statute which authorized 
them. No one is arguing that Garner should not be 
applied retroactively. The Supreme Court's holding is 
being given full force and effect; it is now undisputed m 
this case, just as it was undisputed in Carter, that the 
officer's shooting was unconstitutional. The ultimate 
issue, however, both in Carter and in the present case, is 
whether the City and the Department are liable in dam­
ages for that deprivation. On this issue, the Supreme 
Court carefully expressed no opinion and thus there is 
nothing to be given "retroactive effect." In Carter, on the 
other hand, this court squarely held that such liability 
could not be imposed. The majority's cryptic warning, 
therefore, that "[njeither this court nor the district court 
is free to reexamine the Supreme Court's ruling," is mis­
directed. It is the majority that should take care not to 
attribute to the Supreme Court rulings it has not made.

To be sure, a panel of this court in Garner II opined 
that the City's and the Department's reliance was irrele­
vant. Garner II, 710 F.2d at 248-49. Carter, however, dis­
avowed this dicta and held that a City's good faith 
reliance on the fleeing felon rule prior to the Supreme

A29

Court's decision in Garner precludes liability for pre-Gar­
ner shootings. Therefore, I would hold that the district 
court correctly applied Carter to resolve this case in favor 
of the City and the Department. The majority errs, in my 
view, by refusing to give Carter controlling effect.

II.

Cleamtee Garner has persuaded the highest court in 
the land to declare, without equivocation, that his son 
died in violation of some of this county's most deeply- 
held principles. Just as fundamental, however, is the prin­
ciple upon which this court relied in Carter: it is simply 
not lair, and not in keeping with the letter, the purpose or 
the intent ol 42 U.S C.  ̂ to hold the City and the 
Department liable in damages for young Garner's death 
when they could not have known that the actions of its 
officers were unconstitutional. The determination that the 
death of Mr Garner's son was unconstitutional is, and 
must be, a separate question from whether the citizens of 
Memphis must compensate that tragedy under § 1983.

1 would affirm the district court's judgment in favor 
of the City and the Department and, therefore, respect­
fully dissent.



A30

No. 92-6196
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,

V.

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE,

ORDER
(Filed
Dec. 07 1993)

Defendants-Appellees, )
WYETH CHANDLER, MAYOR OF > 
MEMPHIS, ET AL.,

Defendants.

BEFORE: MERRITT, Chief Judge; KEITH and SUHR- 
HEINRICH, Circuit Judges.

The court having received a petition for rehearing en 
banc, and the petition having been circulated not only to 
the original panel members but also to all other active 
judges of this court, and no judge of this court having 
requested a vote on the suggestion for rehearing en banc, 
the petition for rehearing has been referred to the original 
hearing panel.

The panel has further reviewed the petition for 
rehearing and concludes that the issues raised in the 
petition were fully considered upon the original submis­
sion and decision of the case. Accordingly, the petition is

A31

denied. Judge Suhrheinrich would grant rehearing for the 
reasons stated in his dissent.

ENTERED BY ORDER OF THE 
COURT
/s/ Leonard Green

Leonard Green, Clerk pe