Order to Enter Judgment

    filed

Feb e3 4 31 PH 'BO
wrc — COURTitr.N dist. gf tern.

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION _______

CLEAMTEE GARNER, e tc . ,  

P l a i n t i f f ,

V  .

MEMPHIS POLICE DEPARTMENT, 
et a l .,

Defendants.

docket sheet
in compliance

NO. C-75-145

with Kuie 58 and/or

This document en
79 (a )  FRCP on O R D E R

P la in t i f f  brought this c i v i l  r ights action in 

A p r i l  o f 1975 seeking damages for the shooting death of his 

son, who was k i l le d  by the po lice  o f f ic e r  while attempting 

to f le e  from arrest . Named as defendants were the Memphis 

Police  Department; the City o f Memphis; Wyeth Chandler,

Mayor o f Memphis; and E. R. Hymon, the Memphis po lice  

o f f ic e r  who f ire d  the shot that caused young Garner's death. 

The defendants other than O ffice r  Hymon were sued on the 

grounds that they f i l e d  to exercise due care in the h iring ,  

tra in ing , and supervision of o f f ic e r s  and also on the grounds 

that the ir  p o lic ie s  authorizing the use of deadly force  

against nonviolent felony suspects and the use o f hollow  

point b u l le t s  were unconstitutional. In addition, p la in t i f f  

asserted that le tha l force would not have been employed had 

his son been white.

P l a i n t i f f ' s  complaint purported to assert an 

action fo r  damages under 42 USC §§ 1981, 1983, 1985, and 1988

2 Vy



to redress a lleged  deprivations of r ights  secured by the 

Fourth, F ifth , Sixth, Eighth and Fourteenth Amendments to 

the United States Constitution.

By Order o f August 18, 1975, this Court ruled that 

p la in t i f f  could not u t i l i z e  42 USC § 1983 and 28 USC § 1343 

to assert claims against the City of Memphis or the Memphis 

Po lice  Department since at that time, p r io r  to the decision  

in Monell v. Department of Social Serv ices , 436 U.S. 658 

(1978) , those en t it ie s  were not "persons" within the meaning 

of § 1983. See Monroe v. Pape, 365 U.S. 165 (1961). The 

Court nevertheless invoked ju r isd ic t io n  over both of these 

defendants under 28 USC § 1331, re ly ing  on Bivens v. Six 

Unknown Named Agents, 403 U.S. 388 (1971).

Following a bench t r i a l ,  the Court held that the

tra in ing  programs and guidelines of the Po lice  Department

regarding the use of le th a l force were adequate and that

neither the City nor the Po lice  Department could be found

negligent on that ba s is .  See Memorandum Opinion, November 29,
1/

1976. The Court further held that the use of hollow point 

b u l le t s ,  based on the proof and evidence presented, was not 

implemented merely fo r  the in f l ic t io n  of excessive punishment 

and did not v io la te  standards of c iv i l iz e d  conduct or "shock 

the conscience." See Rochin v. C a l i fo rn ia , 343 U.S. 165 

(1952).

Po lice  Department o f f i c i a l s  t e s t i f ie d  that the 

department became concerned when the type of bu lle ts  

previously used proved in e ffec t ive  at stopping assa ilants

1/ It is noteworthy that although plaintiff in this case failed to 
establish negligence on the part of defendants, even a showing of 
negligence my be insufficient to establish liability under § 1983.
See Gomez v. Toledo, 602 F.2d 1018 (1st Cir. 1979). The decision in 
Gomez held that a § 1983 plaintiff must establish malice or recklessness. 
W T T .ld  at 1020.

■2- 37



and resu lted  in the death of a Memphis policeman. A fter  

conducting comparative tests , the department found the 

hollow point bu l le t s  more e ffec t ive  in this regard and also  

less l ik e ly  to ricochet and in jure innocent bystanders. There 

was also evidence that other po lice  departments and the FBI 

used such ammunition. See T r ia l  Transcript, V o l . I I I .

F ina lly , the evidence showed that, under the circumstances 

of the wounding of Garner, death would have occurred 

regard less of the type bu l le t  used, thus preventing any 

claim fo r  compensatory damages under this part icu la r  theory 

of l i a b i l i t y .

The Court add it iona lly  noted that the 

con stitu t iona lity  o f Tenn. Code Ann. § 40-808, permitting a 

c ity  to authorize i t s  o f f ic e rs  to use deadly force against  

f le e in g  fe lons, had been upheld previously in Cunningham v. 

E ll in g to n , 323 F.Supp. 1072 (W.D. Tenn. 1971) (three-judge  

court. Chief Judge P h i l l ip s  p a r t ic ip a t in g ).

Cunningham v. E ll in g ton , supra, upheld the use of 

le tha l force against f lee ing  fe lons, armed or otherwise, when 

no other e f fe c t iv e  a lternatives  were ava ilab le  to e ffec t  

a rrest  and to prevent escape. Subsequent Sixth C ircu it  

decisions have noted this holding with approval. For example, 

the Sixth C ircu it  panel in Wiley v. Memphis Po lice  Department, 

548 F.2d 1247, 1251, cert , denied, 434 U.S. 822 (1977), 

expressly stated that the decision in Beech v. Melancon, 465 

F.2d 425 (6th C ir. 1972), cert, denied, 409 U.S. 1114 (1973), 

had held the Tennessee statute to be constitu tiona l. Under 

these circumstances, this Court declined to reconsider further  

the con st itu t ion a lity  of the use of deadly force by the Memphis 

Police  Department per s e , rather considering the adequacy of 

it s  p o l ic ie s  and regulations in safeguarding previously  

delineated constitutional r igh ts .

-3-

38



Intervening decisions in this C ircu it and elsewhere 

provide l i t t l e  ju s t i f i c a t io n  for re-examining the fa c ia l  

v a l id i t y  of the Tennessee statute. The only decision noted 

which held the use of dealy force against f lee in g  felons to 

be unconstitutional was vacated by the Supreme Court. See 

Mattis V. Schnarr, 547 F.2d 1007 (8th C i r . ) ,  vacated as 

advisory opinion sub nom., Ashcroft v. M att is , 431 U.S. 171 

(1977) . This decision was strongly c r it ic iz e d  by the Sixth 

C ircu it  in Wiley v. Memphis Po lice  Department, 548 F.2d 1247, 

1252-53 (1977), cert, denied, 434 U.S. 822 (1977).

In addition, the Second C ircu it  in Jones v. M arsha ll, 

528 F.2d 132 (2d C ir. 1975), held constitutional a 

Connecticut law a ffo rd ing  a p r iv i le g e  to police o f f ic e rs  to 

use deadly force when they reasonably be lieve  that a felony  

has been committed and that force is  necessary to e ffec t  

a rre s t ,  a law v i r tu a l ly  identica l to that in Tennessee. In 

Marshall, the f le e in g  felon  was suspected of auto theft and 

there was no threat of deadly force by the suspect. The 

Second C ircu it  refused to impose a federa l constitutional  

requirement that deadly force be employed by o f f ic e rs  only 

when the crime suspected involves a threat to death or bodily  

in ju ry , holding that the state  must be given some leeway in 

l e g is la t in g  in this sensitive  and contested area. W . at 

139-42.

F in a lly , i t  should be noted that although the evidence 

presented at t r i a l  in this case suggested that Garner appeared 

unarmed, the o f f ic e r s  could not have known this with certainty, 

nor could they have known whether the crime he had apparently 

committed was against persons or against property only. This 

recurring  dilemma exposes the d i f f i c u l t y  with any statute that 

attempts to r e s t r ic t  the use of deadly force only to

-4-



part icu la r  types of offenses or in which the f le e in g  felon is 

armed.

F ina lly , the Court found that in view of a l l

surrounding circumstances, O ff ic e r  Hymon had acted without

malice and within his r e sp o n s ib i l i t ie s  as a po lice  o f f ic e r

under the guidelines and p o lic ie s  of the Memphis Police
2 /

Department.

On appeal, the Sixth C ircu it  upheld this Court's

holding as to O ffice r  H5nnon, but remanded the case against the

City fo r  "reconsideration” in l igh t  of Monell v. Department of

Social Services, supra, which, as noted before, reversed

Monroe v. Pape, supra, in holding that a c ity or municipal

agency may be held l i a b le  as persons in damages under § 1983

fo r  constitutional deprivations that re su lt  from a "po licy  or

custom" followed by the City. 436 U.S. at 694, n. 66. The

remand noted that a q u a l i f ie d  immunity insulated the o f f ic e rs

and o f f i c i a l s  in the case from personal l i a b i l i t y ,  but asserted

that the fo llow ing questions remain open under M onell:

"1. Does a municipality have a similar qualified
immunity or privilege based on good faith under 
I'fonell?

2. I f  not, is a municipality's use of deadly force 
under Tennessee law to capture allegedly non- 
dangerous felons fleeing from nonviolent crimes 
constitutionally permissible mder the fourth, 
sixth, eighth, and fourteenth amendments?

3. Is the municipality's use of hollow point bullets 
constitutionally permissible under these 
provisions of the Constitution?

4. I f  the municipal conduct in any of these respects 
violates the constitution, did the conduct flow 
from a 'policy or custom' for vhich the City is 
liable in damages under Monell?"

600 F.2d 52, 55 (6th C ir. 1979).

2/ The Court further noted that Hymon had a competent record as a police 
officer and that he was the type person who was a desirable police recruit 
because of his education, background, ability, and race.

-5-

40



A fter c a re fu l ly  reviewing the e a r l ie r  proceedings 

in this case as w e ll  as subsequent submissions by both parties ,  

and a fte r  hearing further argument by their counsel, this 

Court has d i f f i c u l t y  in determining how the decision in Monell 

has any e f fe c t  on this Court's p r io r  decision and i t  is  concluded 

that further evidentiary proceedings are inappropriate under 

a l l  of the circumstances.

I . SCOPE OF INITIAL TRIAL AND HOLDING 

P l a i n t i f f ' s  broad complaint in this case alleged that 

the k i l l in g  of his son v io la ted  the l a t t e r 's  constitutional  

rights  and was the d irect and proximate re su lt  of the fo llow ing  

a lleged  actions of the City and Po lice  Department: 1) h iring

an ind iv idual unqualified  for the job , 2) a llowing the use 

of deadly force against suspects without providing adequate 

tra in ing ; 3) a llowing the use of hollow point b u lle t s ;

and 4) authorizing the use of deadly force against "nonviolent" 

felony suspects. P l a in t i f f  further asserted that his son 

would not have been shot had he been white.

Although re jec t in g  p l a i n t i f f ' s  p re -Monell attempt to 

invoke the Court's ju r isd ic t io n  under 42 USC § 1983 and 28 USC 

§ 1343(3) with respect to the City and Police  Department, the 

Court held that ju r isd ic t io n  over both these defendants was 

properly invoked under the Fourteenth Amendment and the general 

federa l question statute, 28 USC § 1331. Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971) ( " fe d e ra l  courts do 

have the power to award damages fo r  v io la t ion  of 'constitu tiona lly  

protected in t e r e s t ' " ) ;  see also Bosely v. City of Euclid , 496 

F.2d 193 (6th C i r . 1974).

Thus, as a re su lt  of the Court's exercise of 

ju r isd ic t io n  under § 1331, the City of Memphis was potentia lly

-6- 41



l i a b le  in damages for each and a l l  the constitutional  

v io la t ion s  asserted by p la in t i f f s  under 42 USC § 1983, who 

had f u l l  opportunity to develop proof and evidence on each
3/

of the issues ra ised .

At t r i a l ,  which lasted several days, p la in t i f f

submitted substantia l evidence concerning the p o l ic ie s ,

practices, and tra in ing  programs of the City and Police

Department with respect to the use of le tha l force, including

testimony regarding the use o f such force against suspects

who, upon investigation , were, in fac t ,  unarmed. In addition,

considerable evidence was introduced concerning the

u t i l i z a t io n  of hollow point ammunition.

Following presentation o f proof, counsel for

defendant noted that p l a in t i f f  had presented no evidence to

substantiate the assertion  that his son had been denied equal

protection  on the basis of race. A fte r  counsel for p l a in t i f f

expressed no desire to pursue this facet o f the case further,
5/

the Court disposed of the issue summarily.

3/ Plaintiff 's very ccnpetent counsel is now a high ranking member of 
^ e  United States Department of Justice.

4/ The Court has reviewed the full record carefully in light of the 
remand in this respect, as well as others considered.

5/ This Court did have occasion to consider an equal protection challenge 
in an earlier, somewhat similar case, Wiley v. Manphis Police Department, 
No. C-73-8 (W.D. Tern. June 30, 1975), a f fM . , 548 F.2d 1247 (6th Cin.), 
cert, denied, 434 U.S. 822 (1977). This Court found that plaimtiff in 
Wiley failed to establish discriminatory intent on the part of defendant 
was affirmed on appeal. The reference by the circuit panel in this 
case to statistics introduced in Wiley leaves this Court scxnewhat 
puzzled as to their relevance here. In any event, plaintiff in ^ e  
present action offered no evidence whatsoever to support his claim of 
racial discrimination; in Wiley, as the Coiirt recalls it, there were 
assertions that the white police officers involved would not have fired 
at the fleeing suspect had he been white instead of black. There were 
distinct racial overtones in that case not pursued by able counsel here 
despite the opportunity to do so.

-7- 4:.)



As noted above, the Court considered a l l  claims 

against a l l  defendants (except for the dismissed equal 

protection claim) and the evidence presented on each claim in 

i t s  Opinion of November 29, 1976. Finding that p l a in t i f f  had 

f a i le d  to estab lish  any constitutional v io la t io n s ,  the Court 

ordered judgment in favor of a l l  defendants.

I I . EFFECT OF MONELL V. DEPARTMENT OF SOCIAL SERVICES

To discern the e f fe c t  of Monell on the instant case, 

42 use § 1983 creates no independent rights or protections, but 

merely provides a fede ra l cause of action for v io la t ion s  of 

righ ts  conferred by the Constitution and perhaps by other 

federa l statutes. As the Supreme Court recently stated:

"one cannot go into court and claim a 'v io la t io n  of § 1983' - -  

for § 1983 by i t s e l f  does not protect anyone against anything." 

Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 

617 (1979).

The decision in Monell therefore simply makes 

m unicipalities l i a b le  under § 1983 i f  and when they v io la te  

r igh ts  conferred by the Constitution, provided the deprivation  

re su lts  from municipal po licy  or custom. In the e a r l ie r  

proceeding in this case, as a re su lt  of the Court's recognition  

of a d irect action under the Fourteenth Amendment and ju r i s ­

d iction  premised on 28 USC § 1331, the City was po ten tia lly

l i a b le  fo r  a l l  the constitutional v io la tions then and now
6/

a lleged  by p l a in t i f f .  This potentia l l i a b i l i t y  would have 

been no greater, no d i f fe re n t ,  had the Court exercised

6/ Although some of the constitutional provisions relied upon by 
plaintiff are of questionable application to this case, pertinent state 
actions as to these claims are incorporated through Fourteenth Amendment 
application. See Sibron v. New York, 392 U.S. 40 (1968); Gideon v. 
Wainwright, 372 U.S. 335 (1963); Robinson v. California, 370 U.S. 660 (1962)

-8- 43



ju r isd ic t io n  under § 1983 and 28 USC § 1343. Since

p l a i n t i f f ' s  constitutional claims received f u l l  and carefu l

consideration under § 1331, reconsideration under Monell with

additional evidentiary hearings would be inappropriate.

P l a in t i f f  has no new "cause of action" as a re su lt  of the

decision in Monell and is  bound by the previous judgment

which we re ite ra te  holding that the City and Police  Department
8/

did not v io la te  the Constitution. The present e f fo r t  by 

p la in t i f f  to reopen the case and introduce additional  

evidence on issues already decided is  barred by established  

princ ip les  o f res ju d ic a ta .

There is pending before the Supreme Court at present 

one case which dea lt  with sim ilar issues in an action  

involving 42 USC § 1983 charges against a municipality, in 

which Bivens v. Six Unknown Named Agents, supra, ra tiona le  had 

been applied p rio r  to M onell. In that case, Owen v. City of 

Independence, supra, the Supreme Court remanded to the Court 

of Appeals " fo r  further consideration in l ig h t  of Monell,"  

supra, a decision rendered in 550 F .2d 925 (8th C i r . 1977). 

That Court held, as did this Judge, that 28 USC § 1331 

authorized an action for damages for a lleged  constitutional

7/

7/ Potential municipal liability could conceivably be less extensive 
mder § 1983 because of the necessity of "policy or custom" prescribed in 
Monell. Compare Leite v. City of Providence, 453 F.Supp. 385 (D.R.I.
1978) (since Congress in fact provided an adequate remedy under § 1983, no 
reason exists to inply a cause of action under § 1331).

8/ Since defendants were found not to have violated the Constitution in 
any respect and since the Court deemed the facial validity of the 
Tennessee law to have been previously decided, the availability of a 
qualified immunity for municipalities need not now be considered. In the 
absence of any actions that may result in a finding of liability, the question 
of immunity is imnaterial.

Nevertheless, the absence of any evidence of bad faitn in this case would 
probably immunize defendants from liability under the qualified municipal 
inmunity in § 1983 actions recognized by an increasing number of courts. See 
Sala V. County of Suffolk, 504 F.2d 207 (2d Cir. 1979); Owen v. City of 
^dependence, 589 F.2d 335 (8th Cir. 1978) (Supreme Court Appeal Pend^g) ; 
Mprgan v. Sharon, Pa. Board of Education, 472 F.Supp. 1157 (W.D. Pa. 1979).

-9-



v io la t ion s  against a c ity  whether or not i t  was a "person” 

subject to su it  under 42 USC § 1983. On remand, interpreting  

Monell, 436 U.S. at 695, 701, 707-08, 712-13, the Court of 

Appeals stated;

... We inply from the Court's discussion of 
immunity that local governing bodies may assert 
a limited inmunity defense to actions brought 
against them under section 1983.

Owens, supra, 589 F.2d 337.

That Court expressly recognized p rio r to 1978, a

good fa ith  defense ava ilab le  to the municipality to a claim

for damages for an a lleged  constitutional v io la t io n . Applying

Monell, i t  held that "a limited immunity w i l l  apply to claims

for equitab le  r e l i e f  against m u n ic ip a l it ie s ."  589 F.2d 338.

Applying the Owen ra t iona le , under the evidence

presented to this Court, the City o f Memphis has established

a good fa ith  defense. The City of Memphis a lso was entit led

to claim a lim ited immunity in l ig h t  of the evidence presented

on p l a i n t i f f ' s  constitutional a llegat ions  against i t  and

other defendants in the t r i a l  of this cause. The very

a llega t ion s  made by p l a in t i f f  in this case against the City,

and as to which he was afforded an opportunity to present

evidence, re la ted  to po lic ie s  and procedures a lleged ly  established

or u t i l i z e d  by the City and the Memphis Police Department,

including it s  h ir in g  and train ing practices.

In summation, then, the Court be lieves that each

of the sp ec if ic  questions posed on remand have previously been

addressed and answered in the Court's p rio r  Memorandum Opinion,

but this Judge has c a re fu lly  re-examined the record, i t s  notes,

and the circumstances of the prior t r i a l  in l igh t  of the remand

and M onell, supra .

The answer to question No. 1 is  "yes" based upon 

Owen, supra , and cases cited. Whether or not the City has

10-

45



such immunity, however, p l a in t i f f  has fa i le d  to make out a 

prima fac ie  case of any claimed constitutional v io la t ion .

The answer to question No. 2 would a lso  seem c lea r ly  

to be "yes" in l ig h t  of p rio r  authorities cited, p a rt icu la r ly  

Cunningham v. E l l in g to n , supra, which held squarely on sim ilar  

facts that Tenn. Code Annot. 40-808 met federa l constitutional  

standards on it s  face and that i t  was "not unconstitutional” 

in the face of sim ilar attacks made by the same counsel 

involved in this case. 323 F.Supp.l076. (Two of the present 

Judges of the Sixth C ircu it Court of Appeals partic ipated  in 

that decision as w e ll  as the present Chief Judge of this 

Court.)

The answer to question No. 3 was answered "yes” in 

l ig h t  of the evidence presented and the opportunity to 

present any pertinent proof re la t in g  to a constitutional  

challenge to this policy and practice . Absent further  

persuasive proof and evidence in another factual context, 

this Court would s t i l l  answer "yes” to this inquiry.

As to question No. 4, any answer would be purely  

specu lative  and conditional since municipal conduct re fe rred  

to in p r io r  questions was not determined in these respects to 

v io la te  the Constitution.

The Court concludes therefore that judgment should 

issue fo r  defendants, including the City of Memphis and the 

Memphis Po lice  Department in l ig h t  of Monell v. Department 

of Socia l Serv ices , supra. .-sz:
I t  is  so ORDERED this day of February,

1980.

HARRY W. UEILFORD, JUDGE 
UNITED StATES DISTRICT C URT

-11-



Gvie
CIV 32 
(7/63)

JUDGMENT ON DECISION BY THE COURT

g>tatFB Ststrirt, (Enurt
FOR THE

WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION

C IV I L  A c t i o n  f i l e  N o . c-75-145
CLEAMTEE GARNER, fa th er and next of kin of 
Edward Eugene Gam er, a deceased minor

us.
MEMPHIS POLICE DEPARTMENT; CITY OF MEMPHIS, TENNESSEE; 
WYETH CHANDLER, Mayor of Memphis; JAY W. HUBBARD, 
D irector of P o lic e  of Memphis; and E. R. HYMON, P o lic e  
O ffic e r  of the C ity of Memphis

JUDGMENT

This action Came on for (hearing) before the Court, Honorable HARRY W. WELLFORD

, United States District Judge, presiding, and the issues having been duly boiKi 

(heard) and a decision having been duly rendered, on the remand from the Sixth C ircu it ,

It is Ordered and Adjudged that in accordance w ith the Order entered by the Court 

on March 3, 1980, judgment is  hereby entered fo r  defendants, including the C ity of 

Memphis and the Memphis P o lic e  Department in l ig h t  of M onell.

APPROVED:

m r~CO ̂
m  .' :t> ••
e-
iy' - m

o

docket 3̂ 6®’̂
compliance with Kule 58 and/or

Thic 
79 Ca) on

Dated at 

0  ̂ March

Memphis, Tennessee

, 19 80 .

47

, this 3rd day