Jurisdictional Statement

    No. "el-/o3s

In The

Supreme Court of ti|r 15nitc5 ^atra
October Term, 1983

Cleamtee Garner, 
Appellee,

vs.
Memphis Police Department and 

The State Of Tennessee, 
E t A l.,

Appellants.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

JURISDICTIONAL STATEMENT

William M. Leech, Jr.
Attorney General & Reporter 
State of Tennessee

Counsel of Record for the 
State of Tennessee 
450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-6474

Jerry L. Smith 
Assistant Attorney General 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477





QUESTION PRESENTED

Whether Tennessee Code Annotated Sec. 40-7-108 is un­
constitutional as repugnant to the Fourth and Fourteenth 
Amendments to the Constitution of the United States.





Ill

TABLE OF CONTENTS

Page

Question Presented.......................................................... i

Opinions Below...............................................................  1

Constitutional Provisions and Statutes...........................  2

Statement of the C ase ......................................................  3

Statement of the Facts......................................................  5

The Question Is Substantial............................................  7

Conclusion.......................................................................  11

Appendix:

A Opinion of the United States Court of Ap­
peals for the Sixth C ircuit............................... A-1

B Order of the United States Court of Appeals
denying Petition for Rehearing.......................  A-17

C Notice of Appeal to the Supreme Court of the
United States.................................................... A-18

TABLE OF AUTHORITIES

Cases:

Ashcroft V. Mattis, 432 U.S. 171 (1977).........................  9

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

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

Davis V. Murphy, 599 F.2d 1098 (7th Cir. 1977).............  8



Garner v. Memphis Police Department, 600 F.2d 52
(6th Cir. 1979).......................................................... 4

Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970).......... 8

Johnson v. Click, 481 F.2d 1028 (2nd Cir. 1973)............ 8

Jones V. Marshall, 528 F.2d 132 (2nd Cir. 1975) ...........  10

Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir.
1980).........................................................................  8

Love V. Bass, 145 Tenn. 522, 238 S.W. 94 (1921)............ 7

Mattis V. Schnarr, 547 F.2d 1007 (8th Cir. 1978)............ 9,10

Monell V. Department of Social Services, 436 U.S. 658
98S.Ct.2018,56L.Ed.2d611 (1978).....................  4

Monroe v. Pope, 365 U.S. 167, 81 S.Ct. 473 (1961)........ 8

Reneau v. State, 70 Tenn. 720 (1879)............................... 7

State V. Boles, 598 S.W.2d 821 (Tenn. Crim. App.
1980).........................................................................  7

Wiley V. Memphis Police Department, 548 F.2d 1247
(6th Cir. 1977)............................................................... 10

Statutes:

28 U.S.C. § 1254(2)........................................................  2

28U.S.C. § 1331 ............................................................  3

28 U.S.C. § 1343(3)........................................................  3

28 U.S.C. § 2403(c)........................................................  4

42U.S.C. § 1981 ............................................................  3

42 U.S.C. § 1983 ............................................................  3

42 U.S.C. § 1985 ............................................................  3

IV



42U.S.C. § 1986 .............................................................. 3

42U.S.C. § 1988 .............................................................. 3

Tenn. Code Ann. Sec. 40-7-108 .............................. 2,4,5,7,9,10

Constitutional Provisions:

United States Constitution, Fourth Amendment---- 2,4,5,7,8,9

United States Constitution, Fourteenth Amendment. .2,4,5,7,8,10

Other Authorities:

Ringel, Searches and Seizures, Arrests and Confessions,
2d Edition, Sec. 23.7, pp. 23-39 (1982)...................  7

V





No.

In The

Supreme Olourt of tI|E United ^ateo
October Term, 1983

Cleamtee Garner, 
Appellee,

vs.
Memphis Police Department and 

The State Of Tennessee, 
Et A l.,

Appellants.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

JURISDICTIONAL STATEMENT

The State of Tennessee, an appellant herein, appeals from the 
judgment of the United States Court of Appeals for the Sixth 
Circuit dated June 16, 1983, and order denying rehearing en 
banc dated September 26, 1983, holding Tennessee Code An­
notated Sec. 40-7-108 unconstitutional as repugnent to the 
Fourth and Fourteenth Amendments to the Constitution of the 
United States.

OPINIONS BELOW

The opinion of the panel of the United States Court of Ap­
peals for the Sixth Circuit which appears in the appendix hereto, 
p. A-1, infra., is reported at 710 F.2d 240 (6th Cir. 1983).



— 2

The order denying a rehearing en banc is not reported, but is 
reprinted in the appendix hereto, p. A-17, infra.

The judgment of the United States Court of Appeals for the 
Sixth Circuit, holding Tennessee Code Annotated Sec. 40-7-108 
unconstitutional, was entered on June 16, 1983. See p. A-1, in­
fra. A Suggestion for Rehearing En Banc was entertained and 
denied on September 26, 1983. See p. A-17, infra.

A notice of appeal to this Court was duly filed in the United 
States Court of Appeals for the Sixth Circuit on October 26, 
1983. See p. A-18, infra.

This appeal is being docketed in this Court within 90 days 
from the denial of rehearing below. The jurisdiction of this 
Court is invoked under 28 U.S.C. § 1254(2).

CONSTITUTIONAL PROVISIONS AND STATUTES

Fourth Amendment, United States Constitution:

The right of the people to be secure in their persons, 
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.

Fourteenth Amendment, Sec. 1, United States Constitution:

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 
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 per­
son within its jurisdiction the equal protection of the laws.

Tennessee Code Annotated Sec. 40-7-108:



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

— 3 —

STATEMENT OF THE CASE

This case involves a civil rights action brought by Cleamtee 
Garner on April 8, 1975, 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. §§ 1343(3) and 
1331, seeking redress for the fatal shooting of Mr. Garner’s son, 
Edward Eugene Garner, on October 3, 1974 by an officer of the 
Memphis Police Department. Named defendants in the lawsuit 
were the Memphis Police Department; the City of Memphis, 
Tennessee; Wyeth Chandler, Mayor of the City of Memphis; 
Jay W. Hubbard, Director of Police for the City of Memphis; 
and E.R. Hyman, Police Officer of the City of Memphis.

The suit alleges that Officer Hyman violated the consitutional 
rights of Edward Eugene Garner when Hyman shot and killed 
Garner in an attempt to apprehend him as Garner fled from the 
burglary of a private residence at 739 Vollintine, Memphis, Ten­
nessee. The remaining defendants were joined on the grounds 
that their failure to exercise due care in the hiring, training, and 
supervision of defendant Hyman made them equally responsible 
for Garner’s death and all defendants were sued on the grounds 
that their 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.

Trial was held on August 2-4, 1976, before the United States 
District Court for the Western District of Tennessee, the 
Honorable Harry W. Wellford, Judge, sitting without the in­
tervention 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 practices.



— 4 —

On September 29, 1976, the district court found in favor of all 
defendants on all issues. On appeal a panel of 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 reconsideration in light of this Court’s opinion 
in Monell v. Department o f Social Services, 436 U.S. 658, 98 
S.Ct. 2018, 56 L.Ed.2d 611 (1978). See: Garner v. Memphis 
Police Department, 600 F.2d 52 (6th Cir. 1979).

On remand the district court entered an order in favor of the 
City of Memphis and determined inter alia that Tennessee Code 
Annotated Sec. 40-7-108 was not violative of the cruel and 
unusual punishment prohibilitions of the Eight Amendment to 
the Constitution nor did the statute violate the due process pro­
visions of the Fourteenth Amendment to the Constitution. The 
plaintiff, appellee herein, made no attack on Tennessee Code 
Annotated Sec. 40-7-108 as being repugnant to the Fourth 
Amendment to the United States Constitution.

Plaintiff-appellee again appealed to the United States Court 
of Appeals for the Sixth Circuit. After oral argument of this se­
cond appeal the Clerk of the Court of Appeals notified the Of­
fice of the Attorney General of Tennessee that Tennessee Code 
Annotated Sec. 40-7-108 was under constitutional attack. 
Despite the provisions of 28 U.S.C. § 2403(c) no prior notice of 
such an attack had been afforded the Office of the Attorney 
General of Tennessee. Pursuant to 28 U.S.C. § 2403(c) the State 
of Tennessee, through the Office of the Attorney General, filed 
a motion to intervene in this case for the purpose of defending 
the constitutionality of Tennessee Code Annotated Sec. 
40-7-108. The United States Court of Appeals for the Sixth Cir­
cuit granted the State of Tennessee’s motion to intervene and 
permitted the State to file a brief on the issue.

In an opinion delivered by the Honorable Gilbert S. Merritt 
in which the Honorable Nathaniel R. Jones and Damon J. Keith 
concurred, the United States Court of Appeals for the Sixth Cir­



cuit determined that Tennessee Code Annotated Sec. 40-7-108 
was violative of the Fourth and Fourteenth Amendments to the 
United States Constitution. Although the plaintiff, appellee 
herein, had not raised the issue of the constitutionality of Ten­
nessee Code Annotated Sec. 40-7-108 under the Fourth Amend­
ment to the United States Constitution, the panel of the Court 
of Appeals found that in so far as the statute would permit the 
use of deadly force against a non-dangerous fleeing felony 
suspect fleeing a non-violent felony, the statute permitted an 
unreasonable and excessive seizure of the person. The panel also 
held that the due process protections of the Fourteenth Amend­
ment prohibit the use of deadly force to apprehend a non­
violent fleeing felony suspect. The case was remanded for fur­
ther proceedings consistent with the opinion.

The State of Tennessee filed a Suggestion for Rehearing En 
Banc in a timely fashion. Rehearing en banc was denied on 
September 26, 1983. Notice of Appeal to this Court was filed 
October 26, 1983.

STATEMENT OF THE FACTS

The relevant facts leading to the institution of this lawsuit 
may be fairly summarized as follows:

In the nighttime hours of October 3, 1974, Officer E. R. 
Hyman of the Memphis Police Department and his partner were 
called to 737 Vollintine in Memphis, Tennessee, the home of a 
Ms. Daisey Bell Statts. When the officers arrived Ms. Statts told 
Hyman, “ they are breaking in next door.’’ Hyman returned to 
the patrol car, got his flashlight, advised his partner what was 
happening, and then proceeded south alongside of the house at 
739 Vollintine, the residence being burgled. As Hyman proceed­
ed towards the rear of the house he noticed a light on inside the 
house. As he approached the southwest corner of the house 
Hyman heard the back screen door slam and upon turning the 
corner he saw a figure run from the back of the house to the 
back of the lot where a cyclone fence enclosed the entire back 
yard of the property.



6 —

There was a three (3) to four (4) foot chicken wire fence sup­
ported by boards which ran in along the west side of the 
backyard and was between Hyman and the cyclone fence. The 
cyclone fence itself appeared to Hyman to be six (6) to seven (7) 
feet high. As Officer Hyman was standing at the corner of the 
residence he could observe a garbage can under a window on the 
back of the house and the glass broken out of the window. 
Hyman could also see a clothesline and the outline of various 
objects in the backyard between him and the fleeing subject.

Officer Hyman shined his flashlight along the fence and spot­
ted Edward Eugene Garner in a stooped position next to the 
cyclone fence near an outbuilding in the southeast corner of the 
yard. Garner did not appear to be armed, but Hyman stated at 
that time he could not be certain. Hyman immediately shouted 
“ halt” and identified himself. Garner paused momentarily and 
then jumped to the top of the cyclone fence as Hyman started 
toward him. Hyman fired his service revolver fatally wounding 
Garner in the right side of the head.

Hyman testified he fired at Garner because he knew once 
Garner topped the fence he would not be able to otherwise ap­
prehend him. Hyman was unfamiliar with the terrain and the 
neighborhood in general beyond the fence. Hyman was having 
difficulty getting through the cluttered backyard, he did not 
think he could scale the fence due to his size and all the equip­
ment on his person, the area was dark and Hyman was concern­
ed about the possibility of an armed accomplice still in the 
residence.

Ultimately, following the shooting, it was determined that no 
one was home at the time of the burglary and that Garner was 
unarmed. In the burglary Garner had ransacked the bedrooms 
and removed a ring and a wallet containing a small amount of 
cash.



— 7

THE QUESTION IS SUBSTANTIAL

In the instant case the Sixth Circuit Court of Appeals has held 
that the Fourth and Fourteenth Amendments require not only 
probable cause by police to arrest a felony suspect, but also pro­
bable cause to believe the suspect is dangerous, or has commit­
ted a violent felony before deadly force may be used to capture 
the suspect, although the application of deadly force is 
necessary if the suspect is to be apprehended. By holding uncon- 
situtional Tennessee Code Annotated § 40-7-108 which does not 
impose such a requirement on the use of deadly force, to effect 
an arrest for a felony, the holding of the Court of Appeals calls 
into question similar laws in some twenty-four (24) states. The 
holding places burdensome and impractical constraints on ef­
fective law enforcement by police who can rarely know in 
emergency situations involving a fleeing felony suspect the 
degree of danger the suspect poses to police or the citizenry if he 
or she is not apprehended. The decision is a novel one, being a 
significant departure from former law, and presents a substan­
tial question due to its impact on the area of law enforcement.

Tennessee Code Annotated § 40-7-108 permits police officers 
to use whatever force is necessary to effect the arrest of a 
suspect when police have probable cause to believe the suspect 
has committed a felony. The statute is a codification of the 
commonlaw rule which appears to be the law in approximately 
twenty-four (24) states. Ringel, Searches and Seizures, Arrests 
and Confessions, 2d Edition, Sec. 23.7, p. 23-39, (1982). The 
statute has been interpreted to permit an officer to use deadly 
force as a last resort to effect a lawful arrest when no other 
means of apprehension is available; but if the deadly force is 
unreasonably excessive to effect the capture of the suspect then 
the officer may be subject to criminal liability. See: Reneau v. 
State, 70 Tenn. 720 (1879); Love v. Bass, 145 Tenn. 522, 238 
S.W. 94 (1921); State v. Boles, 598 S.W.2d 821, 823 (Tenn. 
Crim. App. 1980). The use of force beyond what is reasonably 
necessary to apprehend a fleeing suspect may also be a constitu­



8 —

tional deprivation under the Fourth Amendment as made ap­
plicable to the states by the due process clause of the Fourteenth 
Amendment. Monroe v. Pope, 365 U.S. 167, 81 S.Ct. 473 
(1961); Landrigan v. City o f Warwick, 628 F.2d 736, 742 (1st 
Cir. 1980); Davis v. Murphy, 599 F.2d 1098, 1102 (7th Cir. 
1977); Johnson v. Click, 481 F.2d 1028 (2nd Cir. 1973). 
However, until the decision of the Court of Appeals in the ins­
tant case, it appears no court has held that the Fourth Amend­
ment proscribes the use of deadly force against non-dangerous 
felony suspects even if such force is a necessity to effect their 
capture.

The opinion of the Court of Appeals in the instant case in­
dicates that the case of Jenkins v. Averett, 424 F.2d 1228 (4th 
Cir. 1970); holds the Fourth Amendment limits the use of dead­
ly force to capture a fleeing felony suspect. This is true, however 
Jenkins is not precedent for the appellate court’s holding. In 
Jenkins the fleeing suspect was unreasonably seized within the 
meaning of the Fourth Amendment for two (2) reasons. First 
the opinion indicates officers had no probable cause to interfere 
with Jenkins’ freedom of movement at all and thus had no 
lawful right to arrest him using any level of force. Secondly, the 
use of deadly force to capture Jenkins was both reckless and ex­
cessive because it was apparently not necessary to capture him. 
Thus, Jenkins does not deal with the situation presented in the 
instant case, i.e. a fleeing suspect whom officers have probable 
cause to believe has committed a felony, and who cannot be ap­
prehended other than through the use of a deadly force.

The appellant respectfully submits the Fourth Amendment 
does not proscribe the use of deadly force as a necessary last 
resort to capture a suspect whom police have probable cause to 
believe has committed a felony. Once probable cause to arrest a 
citizen has been established he is virtually powerless to prevent 
some police action to effect the arrest. Thus, the prohibition of 
unreasonable seizures should stand as a guard to protect the 
citizen from police use of force against him beyond what is



9 —

necessary to carry out the arrest. However, the Fourth Amend­
ment should not be read to prohibit the use of deadly force 
against a citizen whom police may lawfully arrest for a felony 
when the citizen himself is responsible for creating the necessity 
of using such force by refusing to submit to a lawful arrest, or 
by resistance to lesser applications of force to effect the arrest.

The only case, apart from the one sub judice, of which the ap­
pellant is aware that has stricken as unconstitutional a statute 
similar to Tennessee Code Annotated Sec. 40-7-108 is Matt is v. 
Schnarr, 547 F.2d 1007 (8th Cir. 1978), vacated as moot per 
curiam sub nom Ashcroft v. Mattis, 432 U.s. 171 (1977). There, 
by a single vote in an en banc hearing the Eighth Circuit held a 
Missouri statute similar to Tennessee Code Annotated Sec. 
40-7-108 to be violative of the due process clause of the Four­
teenth Amendment in so far as it would permit the use of deadly 
force against fleeing felony suspects who were ultimately deter­
mined to be non-dangerous. The rationale of the decision being 
the court’s determination that the state’s interest in apprehen­
ding the suspect was only compelling, vis-a-vis the suspect’s 
constitutional right to life, when the suspect was dangerous to 
officers or other citizens. In a strongly worded, well-reasoned 
dissent three (3) judges of the Eighth Circuit found the question 
of when deadly force should be applied was one of public policy 
that should be entrusted to the legislature, and not made a rule 
of constitutional magnitude. The dissent also pointed out that 
such a rule of cosntitutional law placed extraordinary burdens 
on police who would be forced into “ on-the-spot constitutional 
analysis” in emergency situations calling for split-second deci­
sions. 547 F.2d at 1023. It should be noted that this Court 
vacated the judgment in Mattis v. Schnarr, supra., as nothing 
more than an advisory opinion and therefore moot. See: 
Ashcroft V. Mattis, supra. Therefore Mattis v. Schnarr, supra., 
is of only limited, if any, precedential value.

The Sixth Circuit Court of Appeals, when confronted with 
the question of the constitutionality of Tenn. Code Annotated



— 10 —

Sec. 40-7-108 [formerly § 40-808], in 1977 held the statute to be 
consitutional. In Wiley v. Memphis Police Department, 548 
F.2d 1247 (6th Cir. 1977); the Sixth Circuit roundly criticized 
the holding in Mattis v. Schnarr, supra., as extending unwar­
ranted protection to the felon at the expense of the unprotected 
public. 548 F.2d at 1252. See also: Beech v. Melancon, 465 F.2d 
425 (6th Cir. 1972); and Cunningham v. Ellington, 323 F.Supp. 
1072 (W.D. Tenn. 1971) (Three-judge court); both upholding 
constitutionality of Tennessee Code Annotated § 40-7-108. Not 
until the instant case did the Sixth Circuit retreat from its 
previous holdings that Tennessee Code Annotated § 40-7-108 
was constitutional under the due process clause of the Four­
teenth Amendment.

The Second Circuit has held that the common law rule affor­
ding a privilege to a police officer to use deadly force if an ac­
tual necessity to apprehend a fleeing felony suspect is not 
violative of due process under the Fourteenth Amendment. 
Jones V. Marshall, 528 F.2d 132 (2nd Cir. 1975). Although ex­
pressing the belief that the privilege to use deadly force should 
as a matter of policy be restricted to situations where there is a 
violent crime of the fleeing suspect poses a serious threat of 
danger, the court in Jones declined to elevate this belief to a 
constitutional mandate. Instead the court held the policy deci­
sion should properly be reserved for the legislatures in view of 
the history of the common-law rule, the ready availability of 
weapons, the widespread presence of violence, and the needs of 
law enforcement. 528 F.2d at 140.

The appellant herein, the State of Tennessee, therefore asserts 
that the decision of the Court of Appeals in the instant case is a 
novel and substantial departure from the former law. The deci­
sion extends, as a matter of constitutional law, unwarranted 
protection to the felon at the expense of the public and the 
public’s interest in effective law enforcement.



— 11 —

CONCLUSION

For the reasons, this Court should note probable jurisdiction 
of this appeal.

Respectfully submitted,

WILLIAM M. LEECH, JR. 
Attorney General of Tennessee 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6474

Counsel of Record for the 
State of Tennessee

JERRY L. SMITH 
Assistant Attorney General 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439





APPENDIX





APPENDIX A

No. 81-5605

UNITED STATES COURT OF APPEALS 
For The Sixth Circuit

Cleamtee Garner,
Plaintiff-Appellant,

V.

Memphis Police Department, et al., 
Defendants-Appellees.

On Appeal from the United States District Court

— A-1 —

Decided and Filed June 16, 1983

Before: Edwards, Chief Judge; Keith and Merritt, Circuit 
Judges.

MERRITT, Circuit Judge. The principal question before us 
concerns the constitutionality of Tennessee’s fleeing felon 
statute, T.C.A. §40-808 (1975) under the Fourth, Eighth and 
Fourteenth Amendments. The Tennessee statute, as interpreted 
by the District Court and by other federal and state courts, 
authorizes police officers to use deadly force in order to capture 
unarmed suspects fleeing from nonviolent felonies. The statute 
reads: “ I f .. .the defendant.. .either flee or forcibly resist, the 
officer may use all the necessary means to effect the arrest.’’ In 
the present action for wrongful death under 42 U.S.C. §1983 
(1976), a Memphis police officer shot an unarmed boy fleeing 
from the burglary of an unoccupied house. We hold the Ten­
nessee statute unconstitutional because it authorizes un­
necessarily severe and excessive, and therefore unreasonable.



A-2

methods of seizure of the person under the Fourth and Four­
teenth Amendments.

I.

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 property. Two police of­
ficers, called to the scene by a neighbor, intercepted the youth as 
he ran from the back of the house to a six foot cyclone fence in 
the back yard. After shining a flashlight on the boy as he 
crouched by the fence, the officer identified himself as a 
policeman and yelled “ Halt.” He could see that the fleeing 
felon was a youth and was apparently unarmed. As the boy 
jumped to get over the fence, the officer fired at the upper part 
of the body, using a 38-calibre pistol loaded with hollow point 
bullets, as he was trained to do by his superiors at the Memphis 
Police Department. He shot because he believed the boy would 
elude capture in the dark once he was over the fence. The officer 
was taught that it was proper under Tennessee law to kill a flee­
ing felon rather than run the risk of allowing him to escape. The 
youth died of the gunshot wound. On his person was ten dollars 
worth of money and jewelry he had taken from the house.

The District Court dismissed the suit brought by decedent’s 
father against the City under 42 U.S.C. § 1983 (1976) to recover 
damages for wrongful death caused by claimed constitutional 
violations of the Fourth, Eighth and Fourteenth Amendments. 
In accordance with Monroe v. Pape, 364 U.S. 167 (1961), the 
District Court held that a city is not a “person” subject to suit 
under § 1983. Before we heard the first appeal, Monroe was 
overruled on this point by Monell v. Department o f Social Ser­
vices, 436 U.S. 658 (1978). The District Court also dismissed the 
case against the officer and his superiors holding, in accordance 
with our decisions in Beech v. Melancon, 465 F.2d 425 (6th Cir. 
1972), cert, denied, 409 U.S. 1114 (1973); Qualls v. Parrish, 534 
F.2d 690 (6th Cir. 1976); and Wiley v. Memphis Police Depart-



A-3

merit, 548 F.2d 1247 (6th Cir.), cert, denied, 434 U.S. 822 
(1977), that the officers acted in good faith reliance on Ten­
nessee law which allows an officer to kill a fleeing felon rather 
than run the risk of allowing him to escape apprehension.

On appeal, a panel of this Court consisting of Chief Judge 
Edwards and Judges Lively and Merritt affirmed the District 
Court’s holding that the individual defendants were protected 
by the doctrine of qualified immunity because they acted in 
good faith reliance on T.C.A. § 40-808. Garner v. City o f  Mem­
phis, 600 F.2d 52 (6th Cir. 1972). We reversed and remanded the 
case against the City of Memphis, however, for reconsideration 
by the District Court in light of Monell v. Department o f Social 
Services, supra. 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 
and n.66, we instructed the District Court to consider the 
following questions:

1. Whether a municipality has qualified immunity or 
privilege based on good faith under Monell?

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

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

4. If the municipal conduct in any of these respects 
violates the Constitution, did the conduct flow from a 
“policy or custom” for which the City is liable in 
damages under Monell?

600 F.2d 52, at 54-55.



On remand, Judge Wellford ordered memoranda and oral 
argument on the issue of whether the trial should be re-opened. 
By order dated February 29, 1980, he denied further hearings 
and dismissed 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 Judge considered the offer of proof and once again ruled 
against plaintiffs in a written opinion dated July 8, 1981. He 
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 o f  Independence, 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 
Tennesse law as interpreted by the federal and state courts. 
Judge Wellford did not believe it necessary to address the con­
stitutionality of the use of hollow point bullets, because he 
found that there was no causal connection between the use of 
hollow point bullets and Garner’s death.

— A-4 —

II.

We consider the Fourth Amendment question first because, 
unlike the other more general constitutional provisions raised, 
the Fourth Amendment is specifically directed to methods of ar­
rest and seizure of the person. The question under the Fourth 
Amendment is one of first impression in this Circuit. The nar­



A-5

row question presented is whether a state law authorizing the 
killing of an unarmed, nonviolent fleeing felon by police in 
order to prevent escape, constitutes an unreasonable seizure of 
the person.

The Fourth Amendment provides for the “ right of the people 
to be secure in their persons . . .  against unreasonable . . .  
seizures.” The Amendment also provides that where a warrant 
is necessary it must describe “ the person to be seized.” When an 
officer “ accosts an individual and restrains his freedom to walk 
away,” the Fourth Amendment comes into play. Terry v. Ohio, 
392 U.S. 1, 16 (1968). “ [A] person is ‘seized’ . . .  when, by 
means of physical force or a show of authority, his freedom of 
movement is restrained.” United States v. Mendenhall, 446 
U.S. 544, 553 (1980). Killing the individual is the most decisive 
way to make sure that he does not “ walk away,” a method 
“unique in its severity and irrevocability.” Gregg v. Georgia, 
428 U.S. 153, 187 (1976). It is plainly a “ seizure” of the “ per­
son.” The question therefore becomes whether this method of 
capturing suspects is “reasonable” under the Fourth Amend­
ment.

Tennessee courts have interpreted their statute regarding the 
capture of fleeing felons to create a jury question on the issue of 
the “ reasonableness” and the “necessity” of using deadly 
force. But the “ reasonableness” and “necessity” of the 
officer’s action must be judged solely on the basis of whether 
the officer could have arrested the suspect without shooting 
him. Purporting to follow the rule developed in England at 
common law allowing the use of deadly force against suspects 
fleeing from any felony, Tennessee courts have interpreted their 
statute to mean that once it is determined that the officer pro­
bably could not have captured the person without firing, the 
jury should find the police action reasonable under the statute. 
Scarbrough v. State, 168 Tenn. 106, 110 (1934) (officer may kill 
automobile thief “ as a last resort” to prevent escape and the 
question of “necessity of killing” is one for jury); see also to the



same effect Love v. Bass, 145 Tenn. 522 (1921) and State v. 
Bowles, 598 S.W.2d 821 (Tenn. App. 1980) and the cases cited 
in those opinions. It makes no difference that the felony was 
nonviolent or that the felon was unarmed and not dangerous to 
the physical safety of others.

It is true that the common law permitted the killing of a felon 
who resists arrest without regard to the nature of the felony. But 
it did so at a time when all of the small number of felonies then 
in existence were capital crimes. Since any felon at large would 
be hanged or otherwise executed if taken and tried, he was an 
“outlaw” who was automatically dangerous and posed an im­
minent threat to the physical safety of others. The common law, 
however, prohibited the use of deadly force against a fleeing 
suspect whose crime did not require execution and who, 
therefore, was not likely to become a dangerous outlaw.

Pollock and Maitland describe as follows the felony at com­
mon law and the method by which a felon could be taken:

But the very ease with which the king’s peace spread 
itself until it had become an all-embracing atmosphere 
prevented a mere breach of that peace from being per­
manently conceived as a crime of the highest order. . . .  It 
was otherwise with felony. This becomes and remains a 
name for the worst, the bootless crimes.

— A-6 —

The specific effect of the ‘words of felony’ when they 
were first uttered by appellors, who were bringing charges 
of homicide, robbery, rape and so forth, was to provide 
that, whatever other punishment the appellees might 
undergo, they should in all events lose their land. . . .  At all 
events this word, expressive to the common ear of all that 
was post hateful to God and man, was soon in England 
and Normandy a general name for the worst, the utterly 
‘bootless’ crimes. . . .  The felon’s lands go to his lord or to



the King and his chattels are confiscated. The felon forfeits 
life or member. If a man accused of felony flies, he can be 
outlawed.

— A-7 —

We have now to speak of the various processes which the 
law employs in order to compel men to come before its 
courts. They vary in stringency from the polite summons 
to the decree of outlawry. . . .

When a felony is committed the hue and cry should be 
raised. . . .  The neighbors should turn out with the bows, 
arrows, knives, that they are bound to keep and, besides 
much shouting, there will be hornblowing; the ‘hue’ will be 
‘horned’ from vale to ville.

Now if a man is overtaken by hue and cry while he has 
still about him the signs of his crime, he will have short 
shrift. Should he make any resistance, he will be cut down.

There is hardly room for doubt that this process had its 
origin in days when the criminal taken in the act was ipso 
facto an outlaw. He is not entitled to any ‘law,’ not even to 
that sort of ‘law’ which we allow to noble beasts of the 
chase. Even when the process is being brought within some 
legal control, this old idea survives. If there must be talk of 
proof, what has to be proved is not that this man is guilty 
of a murder, but that he was taken red-handed by hue and 
cry.

II Pollock and Maitland, History of English Law, 464-466, 
578-80 (2d ed. 1959).

It is this common law rule allowing all fleeing felons to be kill­
ed, a rule based on the ancient concept of outlawry, that Ten­
nessee courts have adopted in interpreting their statute. These 
killings were acceptable at common law because only violent



A-8

crimes were classified as felonies, and all were punishable by 
death and subject to outlawry. The killing of a fleeing felon 
merely accelerated the time of punishment. The rule of outlawry 
permitting the killing of the fleeing felon did not apply to misde­
meanors and lesser crimes. Lesser criminals who took flight 
from their crimes could not be killed to prevent their escape. See 
Comment, Deadly Force to Arrest: Triggering Constitutional 
Review, 11 Harv. C.R.-C.L. L. Rev. 361, 364-65 (1976).

It is inconsistent with the rationale of the common law to per­
mit the killing of a fleeing suspect who has not committed a life 
endangering or other capital offense and who we cannot say is 
likely to become a danger to the community if he eludes im­
mediate capture. Those states like Tennessee that cite the com­
mon law in defense of their rule permitting the killing of any 
fleeing felony suspect exalt the form of the common law rule 
over its substance and purpose. Tennessee law authorizing the 
use of deadly force against all fleeing felons is at odds with the 
purpose and function of the common law principle because 
there are now hundreds of state and federal felonies that range 
all the way from violations of tax, securities and antitrust laws 
and the possession of stolen or fraudulently obtained property 
to murder and crimes of terror. A state statute or rule that 
makes no distinctions based on the type of offense or the risk of 
danger to the community is inherently suspect because it permits 
an unnecessarily severe and excessive police response that is out 
of proportion to the danger to the community.

This line of reasoning concerning the origin, development 
and current status of the common law rule is similar to the 
reasoning of the Eighth Circuit in its en banc decision in Mattis 
V. Schnarr, 547 F.2d 1(X)7 (8th Cir. 1976), vacated as moot per 
curiam sub nom Ashcroft v. Mattis, 431 U.S. 171 (1977). There 
the court held a similar state statute in Missouri unconstitu­
tional under the Fourteenth Amendment as a matter of substan­
tive due process. After tracing some of the history of the fleeing 
felon doctripe and cataloguing in comprehensive fashion the



— A-9

state statutes on the question as well as federal decisions, ad­
ministrative rules and scholarly commentary, the Eighth Circuit 
observed that “ the historical basis for permitting the use of 
deadly force by law enforcement officers against nonviolent 
fleeing felons has been substantially eroded,” 547 F.2d at 1016. 
At common law “ since all felonies . . .  were punishable by 
death, the use of deadly force was seen as merely accelerating 
the penal process. . . . ” 547 F.2d at 1011 n.7.

Likewise, in Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975), 
the Second Circuit in a scholarly opinion by Judge Oakes 
observed that a rule which permits the use of deadly force 
against nonviolent fleeing felons is not consistent with the pur­
pose and function of the common law rule. Although the Jones 
case, like our earlier opinion in this case, insulates the officer 
from federal liability when, in reliance on a similar state statute, 
he shoots a nonviolent fleeing felon, the court commented:

[T]he common law rule evolved when only a few crimes 
were felonies, and all of them involved force or violence 
. . .  and were punishable by death or forfeiture of lands 
and goods. See ALI, Model Penal Code § 3.07, Comment 
3 at 56 (Tent. Draft No. 8, 1958). (“ Such rational justifica­
tion for the common law rule as can be adduced rests large­
ly on the fact that virtually all felonies in the common law 
period were punishable by death” ). . . .  As the scope of 
“ felony” crimes has expanded wholly away from the con­
cept of violence which underlay its common law origin, the 
use of the felony label to justify especially severe police 
behavior has become increasingly strained. As stated by 
Judge McCree in his concurring opinion in Beech v. 
Melancon, 465 F.2d 425, 426-27 (6th Cir. 1972), cert, 
denied, 409 U.S. 114 (1973):

“ . . .  I would find it difficult to uphold as constitutional a 
statute that allowed police officers to shoot, after an 
unheeded warning to halt, a fleeing income tax evader, an­



— A-10

titrust law violator, selective service delinquent, or other 
person whose arrest might be sought for the commission of 
any one of a variety of other felonies of a type not normal­
ly involving danger of death or serious bodily harm.”

We have thoroughly explored the digests and the electronic 
case retrieval systems, and our research discloses only one ap­
pellate decision discussing Fourth Amendment limitations on 
the use of deadly force to capture a fleeing suspect. In Jenkins 
V. Averett, 424 F.2d 1228 (4th Cir. 1970), a black youth took 
flight at night. The police officer cornered the boy and shot 
him. The District Court dismissed the federal constitutional 
claim. Applying the Fourth Amendment analysis, the Fourth 
Circuit, in an opinion by Judge Sobeloff reversed. Holding that 
the Fourth Amendment “ shield covers the individual’s physical 
integrity,” the Court found a constitutional violation because 
“our plaintiff was subject to the reckless use of excessive 
force.” 424 F.2d at 1232.

The only other discussion of the reasonableness of the use of 
deadly force by police in a Fourth Amendment context is that of 
Chief Justice Burger in his dissenting opinion in Bivens v. Six 
Unknown Federal Narcotic Agents, 403 U.S. 388 (1971). In 
Bivens the Court held that the Fourth Amendment creates a 
direct constitutional tort claim for violation of a citizen’s right 
to be free of illegal searches of the home and seizures of the per­
son. Although Bivens was not a fleeing felon case. Chief Justice 
Burger, in the course of his Fourth Amendment analysis in dis­
sent, observed:

I wonder what would be the judicial response to a police 
order authorizing ‘shoot to kill’ with respect to every 
fugitive. It is easy to predict our collective wrath and 
outrage. We, in common with all rational minds, would 
say that the police response must relate to the gravity and 
need; that a ‘shoot’ order might conceivably be tolerable to 
prevent the escape of a convicted killer but surely not for



— A-11

car thieves, pickpockets or a shoplifter. Bivens v. Six 
Unknown Agents, 403 U.S. 388, 411 (1971) (Burger, C.J., 
dissenting) (emphasis added).

The Sixth Circuit long ago in United States v. Clark, 31 F. 710 
(6th Cir. 1887), expressed similar doubts about the validity of a 
rule allowing deadly force against all fleeing felony suspects:

Suppose, for example, a person were arrested for petit 
larceny, which is a felony at the common law, might an of­
ficer under any circumstances be justified in killing him? I 
think not. The punishment is altogether too dispropor­
tionate to the magnitude of the offense.

Id. at 713.

The Tennessee statute in question here is invalid because it 
does not put sufficient limits on the use of deadly force. It is 
“ too disproportionate.” It does not make distinctions based on 
“gravity and need” nor on “the magnitude of the offense.” 
Before taking the drastic measure of using deadly force as a last 
resort against a fleeing suspect, officers should have probable 
cause to believe not simply that the suspect has committed some 
felony. They should have probable cause also to believe that the 
suspect poses a threat to the safety of the officers or a danger to 
the community if left at large. The officers may be justified in 
using deadly force if the suspect has committed a violent crime 
or if they have probable cause to believe that he is armed or that 
he will endanger the physical safety of others if not captured. A 
statute which allows officers to kill any unarmed fleeing felon 
does not meet this standard and is therefore invalid.

After oral argument in this case, upon motion, the Court per­
mitted the state of Tennessee, through its Attorney General, 
William M. Leach, Jr., to intervene as a party under 28 U.S.C. 
§2403(c) for the purpose of defending the constitutionality of
T.C.A. § 40-7-108. The State has filed an able brief. It concedes 
that Tennessee courts and law enforcement agencies interpret



A-12

the statute to permit the use of deadly force against any fleeing 
felon, whatever the felony, “when no lesser means of apprehen­
sion reasonably appears available.” (Brief p. 5) The State’s 
brief argues, however, that we should not reach the issue of 
whether Tennessee’s rule may be constitutionally applied to a 
non-dangerous felon fleeing from a non-violent felony because 
here the officer “could not be certain whether there was an ac­
complice in the burglarized house, or in the area, and whether 
the accomplice might be armed.” (Brief, p. 6.)

This argument almost always permits the officer to shoot to 
kill. The officer will seldom be absolutely certain of the situa­
tion. The Fourth Amendment resolves this problem, however. 
It requires probable cause—an objective, reasonable basis in 
fact to believe that the felon is dangerous or has committed a 
violent crime. There is no evidence to support such a finding in 
this case, although a the state argues, and as the District Court 
found, the officer was not certain on this point. The officer 
knew only that he was dealing with a youth who had committed 
a non-violent felony and was apparently unarmed. We do not 
have to hold the District Judge’s findings clearly erroneous in 
order to reach this result, because the facts, as found, did not 
justify the use of deadly force under the Fourth Amendment.

An analysis of the facts of this case under the Due Process 
Clause of the Fourteenth Amendment leads us to a similar 
result. That clause prohibits any State from depriving “any per­
son of life, liberty or property, without due process of law.”
U.S. Const. Amend. XIV. The right to life, expressly protected 
by the Constitution, has been recognized repeatedly by the 
Supreme Court as fundamental in the due process and equal 
protection contexts. Yick Wo v. Hopkins, 118 U.S. 356, 370 
(1886) (the fundamental rights “ to life, liberty and the pursuit 
of happiness” ); Johnson v. Zerbst, 304 U.S. 458, 462 (1938) 
(“the fundamental human rights of life and liberty” ); Roe v. 
Wade, 410 U.S. 113 (1973) (right to life protected by Fourteenth 
Amendment when fetus becomes viable).



— A-13 —

When a fundamental right is involved, due process requires a 
state to justify any action affecting that right by demonstrating 
a compelling state interest. Roe v. Wade, supra; Mattis v. 
Schnarr, 547 F.2d 1007, 1019 (8th Cir. 1976) (en banc). Laws 
which infringe on fundamental rights must be “narrowly drawn 
to express only the legitimate state interests at stake.’’ Roe v. 
Wade, supra. The law challenge here is not so narrowly drawn. 
Certainly there are state interests in law enforcement served by 
this law which allow police to shoot all fleeing felons. Those in­
terests are compelling when the fleeing felon poses a danger to 
the safety of others. We do not consider these interests suffi­
ciently compelling to justify the use of deadly force to protect 
only property rights.

As the Eighth Circuit pointed out in striking down a similar 
law:

We find nothing in this record . . .  to support the conten­
tion of the state that statutes as broad as these deter crime, 
insure public safety or protect life. Felonies are infinite in 
their complexity, ranging from the violent to the vic­
timless. The police officer cannot be constitutionally 
vested with the power and authority to kill any and all 
escaping felons, including the thief who steals an ear of 
corn, as well as one who kills and ravishes at will.

Mattis V. Schnarr, supra at 1019-20 (footnote omitted). Where, 
as here, human life is the right at stake, a statute that sweeps as 
broadly as this one violates due process of law and must be 
struck down.

The principles and distinctions we have enunciated here have 
been cast in the form of a rule by the American Law Institute in 
the Model Penal Code, a rule which accurately states Fourth 
Amendment limitations on the use of deadly force against flee­
ing felons:

The use of deadly force is not justifiable . . .  unless (i) the 
arrest is for a felony, and (ii) the person effecting the arrest



A-14

is authorized to act as a peace officer or is assisting a per­
son whom he believes to be authorized to act as a peace of­
ficer; and (iii) the actor believes that the force employed 
creates no substantial risk of injury to innocent persons; 
and (iv) the actor believes that (1) the crime for which the 
arrest is made involved conduct including the use or 
threatened use of deadly force; or (2) there is a substantial 
risk that the person to be arrested will cause death or 
serious bodily harm if his apprehension is delayed.

Model Penal Code § 3.07(2)(b) (Proposed Official Draft, 1962).

Our holding here under the Fourth Amendment is not incon­
sistent with our holdings in Wiley v. Memphis Police Depart­
ment, 548 F.2d 1247 (6th Cir. 1977), and Beech v. Melancon, 
465 F.2d 425 (6th Cir. 1972), or the three judge District Court 
opinion in Cunningham v. Ellington, 323 F.Supp. 1072 (W.D. 
Tenn. 1971), in all of which youths were killed by the Memphis 
police while fleeing from the commission of a burglary. In each 
of those cases the Tennessee statute was drawn into question 
under the “cruel and unusual punishment” clause of the Eighth 
Amendment and under the Fourteenth Amendment as a matter 
of substantive due process. In none of these cases was a Fourth 
Amendment question raised, discussed, mentioned or decided. 
Fourth Amendment considerations were not argued. Moreover, 
in each of the cases the narrow question before the court was 
whether the police officer who shot the fleeing boy was entitled 
to a good faith privilege against liability based upon his reliance 
upon the Tennessee statute. In each case the court held, just as 
we held in our previous decision in this case. Garner v. City o f  
Memphis, supra, that the officer is insulated from personal 
liability by a good faith privilege which entitles him to rely upon 
the Tennessee statute. This is the ratio decidendi of each of 
those cases. In those cases it was unnecessary to reach the con­
stitutionality of the statute in order to decide the question of the 
officers’ immunity, and in any event, no Fourth Amendment 
question was raised in any of the cases.



— A-15 —

III.

In his opinion of July 8, 1981, Judge Wellford held that 
although Owen v. City o f Independence, 445 U.S. 622 (1980), 
precludes the city of Memphis from claiming immunity based 
on the good faith of its police officers, that opinion left open 
the question of whether the City could claim immunity for its 
good faith reliance on a facially valid state law in enacting City 
police regulations. Because he found no violation of Garner’s 
constitutional rights, the Judge did not have to answer this 
question. In light of our finding of a constitutional violation, we 
must reach this question; in doing so, we hold that there is no 
good faith immunity for municipalities under § 1983.

The reasoning underlying the Supreme Court’s decision in 
Owen, supra, precludes a municipality’s claim of good faith im­
munity under § 1983 altogether. Justice Brennan, speaking for 
the Court in Owen, gave two major reasons why good faith im­
munity of city officials should not be extended to municipalities 
themselves. First he pointed out that at common law, which is 
the source of immunities under § 1983, there was no good faith 
immunity for governmental entities. Id. at 640. Sovereign im­
munity at common law was unrelated to the question of good 
faith and was waived when the government consented to suit as 
it does under § 1983. Immunity for discretionary functions, the 
only other governmental immunity at common law, involved 
concerns of separation of powers, unrelated to good faith. 
Because a municipality has no “discretion” to violate constitu­
tional rights of its citizens, this traditional form of immunity 
does not come into play. There is no common law analogue 
which would suggest that municipalities have immunity for 
good faith reliance on state law under § 1983.

Second, Justice Brennan discussed the public policy con­
siderations which justify individual good faith immunity and 
found that they did not weigh heavily in favor of governmental 
immunity. The two considerations are (1) the injustice of fore-



— A-16

ing an individual whose position requires him to exercise discre­
tion to bear the cost of his good faith reliance on a law or 
regulation; and (2) the danger that the threat of liability would 
deter individuals from executing the duties of their offices or 
even from seeking public office. Id. at 654. When a municipality 
is held liable, whether for the actions of its officials, or based on 
its own reliance on state law, no single individual or official 
must bear the cost. The cost is spread among the general public, 
which is ultimately responsible for the conduct of its officials. 
There is little danger that individuals will hesitate to carry out 
their duties or accept public office, when any liability for their 
reliance on state law will be paid from the public fisc.

In a well-reasoned opinion, the Tenth Circuit sitting en banc, 
held that good faith reliance by a school district on the prior law 
of the circuit provided no independent protection from liability 
for wrongful dismissal of a teacher. Bertot v. School District 
No. 1, Albany County, 613 F.2d 245, 251 (10th Cir. 1979). It 
held that the remedying of deprivations of fundamental con­
stitutional rights must be of primary concern to courts and other 
governmental bodies. A rule imposing liability despite good 
faith reliance insures that if governmental officials err, they will 
do so on the side of protecting constitutional rights. It also 
serves the desirable goal of spreading the cost of unconstitu­
tional governmental conduct among the taxpayers who are 
ultimately responsible for it. Id. 252.

Neither the District Judge nor the City of Memphis has of­
fered any reason why the courts should expand the doctrine of 
good faith immunity under § 1983. The considerations which 
prompted the Supreme Court in Owen to deny good faith im­
munity to municipalities for the acts of their officials apply with 
equal force to this case.

Accordingly, the judgment of the District Court is reversed 
and the case remanded for further proceedings consistent with 
this opinion.



APPENDIX B

No. 81-5605

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Cleamtee Garner, 
Plaintiff-Appellant

V.

Memphis Police Department, 
et al..

Defendants-Appellees

— A-17 —

ORDER DENYING PETITION FOR 
REHEARING EN BANC

(Filed Sept. 26, 1983)

Before: EDWARDS, Chief Judge; KEITH and MERRITT, 
Circuit Judges

A majority of the Court having not voted in favor of an en 
banc rehearing, the petitions for rehearing have been referred to 
the hearing panel for disposition.

Upon consideration, it is ORDERED that the petitions for 
rehearing be and hereby are denied.

ENTERED BY ORDER OF 
THE COURT

/s / John P. Hehman 
Clerk



— A-18 —

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

No. 81-5605

Cleamtee Garner, 
Plaintiff-Appellant,

Memphis Police Department, 
and The State Of Tennessee, 

et al..
Defendants-Appellees.

NOTICE OF APPEAL TO THE SUPREME COURT 
OF THE UNITED STATES

(Filed Oct. 26, 1983)

Notice is hereby given that the State of Tennessee, a 
defendant-appellee above-named, hereby appeals to the 
Supreme Court of the United States from the judgment of this 
Court entered June 16, 1983, and the denial of a rehearing en 
banc entered in this case on September 26, 1983, making the 
judgment of June 16, 1983 final.

This appeal is taken pursuant to 28 U.S.C. § 1254(2).

/ s /  JERRY L. SMITH
Assistant Attorney General



PROOF OF SERVICE

I, Jerry L. Smith, Assistant Attorney General of the State of 
Tennessee, having been duly sworn hereby affirm that all parties 
required by the United States Supreme Court Rules to be served 
with the foregoing notice of appeal have been served in accor­
dance with Rule 28 of the United States Supreme Court Rules 
by depositing copies of the foregoing notice of appeal in the 
United States Mail, first-class postage prepaid, to each of the 
following:

Messrs. Jack Greenberg, James M. Nabrit, III and Steven 
L. Winter, Counsel for Plaintiff-Appellant,
Suite 2030
10 Columbus Circle
New York, New York 10019

Mr. Walter L. Bailey, Jr.
Counsel for Plaintiff-Appellant,
Suite 901, Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Mr. Henry L. Klein,
Counsel for Defendant-Appellee,
The City of Memphis,
2108 First Tennessee Building 
Memphis, Tennessee 38103

This the day of October, 1983.

— A-19 —

/s /  JERRY L. SMITH
Assistant Attorney General



— A-20

STATE OF TENNESSEE 

COUNTY OF DAVIDSON

Sworn to and subscribed before me this 25th day of October, 
1983.

/s /  Jacqueline B. Epps 
NOTARY PUBLIC

July 21, 1983 
MY COMMISSION EXPIRES



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