Garner v. Memphis Police Department Court Opinion

    52

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runt performed laundry work ordinarily 
only upon the establishment's own linens or 
fabrics of those of its f^uests,” The Admin­
istrator later changed this interpretation of 
the Act and now sup|»orts the position ar­
gued by the Secretary of Labor.

The Administrator's first interpretation 
seems to us more in line with the purpose of 
the 1966 legislation excluding laundries 
from the small business exemption. 29 
U.S.C. § 213(a)(2). Tiic Senate Committee 
on Labor and Public Welfare report on the 
legislation reads: “ This section repeals the 
[existing] wage and overtime exemption ap­
plicable to employees in laundry and dry 
cleaning cslablishinenLs. [Tllie
amendments . provide for com-
I>lete protection for employees of
such cslablishmcnLs,” S.Kcp. No. 1487, 89th 
Cong., 1st Sess. at 28 (1966) (emphasis add­
ed), U.S.Code Cong. & Admin.News 1966, 
pp. 3002, 3030. “ [WJhat Congress intended 
to accomplish was a sweeping coverage of 
the entire laundry industry." NaLional Au- 
U'matic Laundry and Cleaning Council v. 
Shul:/.. 113 C.S.App.D.C. 274, 290, 443 l'\2d 
68'.), 7l).7 (1971) Lominant segments of the 
industry sought the amendments. They 
were already paying the minimum wage 
and had to charge higher prices as a result. 
They sought coveimge of the entire industry- 
in order to remove the com])etilive price 
advantage of small operators. Ibiu.

[1,2] A motel, ho wever, is not usually 
considered “a laundry establishment" or a 

■ part of the “ laundry industry.” Congress 
was trying to jjut a floor under the wages 
paid by these establishments, but there is 
no indication that Congress was so interest­
ed in obUdning business for laundries that 
it intended that small retail businesses such 
as restaurants and motels should lose their 
minimum wage exemption because they 
wash their own laundry rather than send it 
outside to a “ laundry establishment." We 
disagree with the recent decision of the 
Fifth Cii'cuit to the contrary, CosscLl v. 
Du-Ila-Kcl Cor;)., ,669 F.2d 869 (1978). We 
construe the words of the statute, “ employ­
ees engaged in laumlering," to mean "(mi- 
ployees of laundering establishments” :ind

not employees of restaurants or motels who 
wash tablecloths, sheets a)id the like for use 
on the jiremises in the ordinary course of 
business. Not a single line or word of the 
legislative history suggests that Congress 
intended to extend the provision to include 
employees of businesses outside the laundry 
industry.

Accordingly, the judgment of the District 
Court is reversed.

Cleamtce GAUNFR, father and next of 
kin of Eugene Garner, a deceased 

minor, Plaintiff-Appel hint,

V.

MEMPHIS POLICE DEPARTMENT, 
CITY OF MEMPHIS, TENNESSEE and 
Jay W. Hubbard and E. R. Hynion in 
their official capacities, Defendants-Ap- 
pellees.

No. 77-1089.

United States Court of Appeals,
Sixth Circuit.

Argued Feb. 14, 1979.

Decided June 18, 1979.

Father of youth brought action against 
city, municipal police officer and officials to 
recover for alleged wrongful death caused 
by constitutional violations when policeman 
shot and killed youth as he allegedly was 
esciiping from the scene of a burglary. The 
United Stales District Court fiir the West­
ern District of Tennessie, Harry W. Well- 
f(/rd, .1., dismissed suit against city and 
against officer and his superiors, and plain­
tiff appealed. The Court of Apjietds, .Mer­
ritt, Circuit Judge, held that: (1) policeman

was 
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■tola who 
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ourse of 

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Congress 
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laundry

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next of 
used

IMENT, 
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CAltNIlK V. MKiMI'lllS I'OUCK I)K1"1'„ ETC.

U.S.C.A. § 1983; LI.S.C.A.Con.st. Arnend.s. 4 
H, 14; T.C.A. § 40-808.

was entitled to assert, as eoniplete defense, 
a qualified “good faith” privilege or immu­
nity from liability for constitutional claims 
hased on his reliance on Tennessee law 
which allows an officer to kill a fleeing 
felon rather than run the risk of allowing 
him to escape aiiprehension, and (2) liability 
of city under federal civil rights statute 
depended upon resolution of questions as to 
whether municipality had a qualified immu­
nity or privilege ba.sed on good faith, 
whether municijiality’s use of deadly force 
under state law was constitutionally per­
missible, whether municipality’s u.se of hol­
low point bullet was constitutionally jier- 
missible and whether officer’s conduct 
flowed from a “ policy or custom” for which 
municipality could be liable in damages.

Case against city remanded for recon­
sideration.

1. Civil Rights t o  13.8(4)

A city policeman who shot and killed a 
youth as he escaped from the scene of a 
burglary was entitled to assert, as complete 
defen.se Ui civil rights action, a qualified 
‘‘good faith” privilege or immunity from 
liability for constitutional claims ba.sed on 
his reliance on Tennes.see law which allows 
an officer to kill a fleeing felon rather than 
run the risk of allowing him to escape ap­
prehension. 42 U.S.C.A. § 1983; U.S.C.A. 
Const. Amends. 4, 8, 14; T.C.A. § 40-808.

2. Civil Rights t o i 3 .8 (,3 )

Liability of city under federal civil 
rights statute for shooting by city police­
man of youth as ho escaped from scene of 
burglary depended ujion re.solution of que.s- 
Lions as Ui whether municipality had a ijual- 
ified immunity or jirivilcge based on good

 ̂ Jack Greenberg, Charles Stejihen Ralston, 
Steven L. Winter, New York City, Walter 
I- Bailey, ,Jr., D’Army Bailey, Memphis, 
Tenn., Avon N. Williams, Jr., Nashville, 
Tenn., for plaintiff-apiiellant.

Henry L. Klein, Memphis, Tenn., for de- 
fendants-appellees.

»

Before EDWARDS, Chief Judge and 
l i v e l y  and MERRITT, Circuit Judges.

MERRITT, Circuit Judge.

On the night of October 3, 1974, a fifteen 
year old, unarmed boy broke a window ami 
entered an unoccupied residence in subur­
ban Menqihis to steal money and property. 
Two jiolice officers, called to the scene by a 
neighbor, intercepted the youth as he ran 
from the back of the house to a si.\ foot 
cyclone fence in the back yard. Using a 
38-calibre pistol loaded with hollow point 
bullets, one of the officers shot and killed 
the boy from a range of 30 to 40 feet as he 
climbed the fence to e.scape. 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, 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 projier to kill a 
fleeing felon rather than run the risk o f  
allowing him to escape.

I  he District Court dismissed the suit offaith, whether municipality’s u.se of deadly , Court dismissed the suit of

constitutionally 
permissible, whether municifiality’s u.se of 
hollow point bullet w;is constitutiomdly per­
missible and whether offie.n-’s conduct 
flowed from a “ policy or custom” for which 
municijiality could be liable in damages. 42

ilamages for wrongful deid.li cau.sed by 
elainied constitutional viol.ations of the 
fourth, (n);hth and fourteenth amendments. 
In accordance with then existing law, the 
District Court held that a city is not a



54 (!()() FKDKKAL KKl’ORTKli, 2d SKUIKS

I I

“ ])crson” sul)jccL U) suit undc.'r § 19&5; l)Ul 
Monroe v. P;ii>c, 365 U.S. 167, 81 S.Cl. 473, 5 
L.E(1,2(1 492 (1961), in which the Supremo 
Court so ruled, was overruled on this |)oinl 
last term by the case of Moncll v. Dcparl- 
ment o f Social Services, 4.3G U.S. 658, 98 
S.Ct. 2018, 56 L.Ed.2d 611 (1978). Follow­
ing a bench trial, 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, 93 S.Ct. 927, 34 L.Ed.2d 69G (1973); 
Qualls V. Parrish, 534 F.2d 690 (6th Cir. 
1976); and Wiley v. Memphis Police De­
partment, 548 F.2d 12'17 (6th Cir.), cert, 
denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 
78 (1977), that the officers acted in good 
faith reliance on Tennessee law which al­
lows an officer to kill a fleeing felon rather 
than run the risk of allowing him to escape 
apprehension.

|1| We conclude that the District Court 
did not err in finding that the individual 
defendants acted in good faith reliance on 
Tenn. Code Ann. § 40-808 which provides 
that an officer “ may use all the nece.ssary 
means to effect the arrest” of a fleeing 
felon. As our itrevious cases, cited above, 
])oint out, Tennessee courts have interpret­
ed this sUxtute as a codification of the com­
mon law rule allowing officers to kill flee­
ing felons rather than run the risk of per­
mitting them to escape apprehension. This 
rule applies to fleeing felons suspected of 
property crimes not endangering human 
life, as well as life-endangering crimes, and 
to felons who pose no threat of bodily harm 
to others, if not apprehended immediately, 
as well as felons who may be dangerous to 
others if left at large. Ajiplying the (juali- 
fied “good faith” privilege or immunity 
from liability for constitutional claims, as 
announced in our previous decisions ciU'd 
above, we affirm ihaL portion of the Dis- 
ti'ict Court'.s judgment di.'irni.ssing the case 
again.st the individual <lefendants.

121 We reverse and remand the case 
against the City, however, for reconsidera­
tion by the District Court in light of Monell 
e. Department o f Social Services, supra. 
Monell holds that a city may be held liable 
in damages under § 1983 for constitutional 
xleprivations that result from a “ policy or 
custom” followed by the city. 436 U.S. at 
694 and n. 66, 98 S.Ct. 2018.

Our previous decisions do not establish 
the constitutionality of Tenn. Code Ann. 
§ 40-808, permitting a city to authorize its 
officers to use deadly* force against a flee­
ing felon, nor have they established the 
constitutionality of the city’s use of hollow 
point bullets. Although there is discussion 
of the constitutionality of the 3'ennessee 
statute in the Beech, Qualls and Wiley 
cases, supra, all three of those cases dealt 
with actions against individual officers un­
der § 1983, and not liability based on the 
“ policy or custom” of a governmental enti­
ty. Those cases held that it “ would be 
unfair” to imjxise liability on an officer 
“ who relied, in good faith, upon the settled 
law of his state that ho relieved him from 
liability for the particular acts performed in 
his official capacity.” Qualls v. Parrish, 
supra at 694, quoted in Wiley v. Memphis 
Police Department, supra at 1253. The es­
sential holding of those cases was that an 
individual officer has a (jutilificd privilege 
or immunity from liability for constitution­
al claims based on good faith performance 
of his duties in accordance with statutory or 
administrative authority, a holding subse­
quently approved by the Sujireme Court in 
BuLz V. Economou, 438 U.S. 478, 496 508, 98 
S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although 
the (jualified immunity develoiied in those 
cases insulates the officers and officials 
from personal liability in this case, as the 
District Court held, the following questions 
in the c:use against the city are still oixcn 
under Monell:

1. Does a municipalil V have a similar 
(pi.alified immimily oi- privilege b.a.sed 
on g'oo<l faith umh'r M onell'!'

1. -See (li.scas.sion of thi.s question in /,/c(c V. f'/(y o/' Provulcnee, •Ki.'i .̂.Sup|). r>Hr>, r>HH (D.R.I. 
197K).



a-
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ible 
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based

D .R .l.

2.

3.

UNI'l'KI) STAT
Cllc as (100 r

i f  iiol, is :i inuiiicipaliLy’s u.s(; of dead­
ly force uiidttr Tenn<’ssoe law to cap- 
tare allegedly iiondangerous felons 
fleeing from nonviolent crimes consti­
tutionally permissil)le under the 
fourth, sixth, eighth and fourteenth 
amendments? ^

Is the municipality’s use of hollow 
point l)ullets constitutionally permis­
sible under these provisions of the 
Constitution? ̂

4. I f  the municipal conduct in any of 
these respects violates the Constitu­
tion, did the conduct flow from a 
“ policy or custom’’ for which the City 
is liable in damages under Monell ? ^

We remand the case against the City to 
the District Court for reconsideration in 
light of Moncll, including consideration of 
these questions.

i;S V. KKNI'RO
,2d 55 (l»7I))

; KElTNUMBtRSVSItM;

2. See f;e n c r;illy  C oker v. Georgia, 433 U..S. 584, 
97 S.Cl. 252,t, 53 L.gd.2d 653 (1977); Ing rah am  
V. W h f;h t. 430 U.S. 651, 97 S.Ct, 1401, 51 
L.Ed.2d 711 (1977); G regg v. G eorgia, 428 U.S. 
153, 96 S.Ct. 2909, 49 L,Ed.2d 859 (1976); F u r­
m an  V, Georgia, 408 U.S. 238. 92 S.Ct. 2726, 33 
L.Ed,2d 346 (1972); La nd ru m  v. M oats, 576 
F.2d 1320 (8th Cir,), cert, denied, 439 U.S. 912, 
99 S.Ct. 282, 58 L.Ed.2d 258 (1978); M a ttis  v.' 
S chnarr, 547 F.2d 1007 (8th Cir. 1976). vacated  
as ad v iso ry  op in ion  sub nom . A s h c ro ft v. M a t­
tis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 
(1977); Jones v. M a rsha ll, 528 F.2d 132 (2d Cir. 
1975); Day. S hoo ting  the F lee ing Fe lon: S tate  
o f  the  Law , 14 Crim.L.Bull. 285 (1978); Com­
ment, D ead ly  Force to  A rre s t: T rigge ring  C on­
s t itu t io n a l K eview , 11 llarv.C.lt.— C.L.L.Kev, 
361 (1976).

3. Sec g e ne ra lly  l“au.st. Does Y o u r l>olice Force  
Use Uleg,d Weapon,-i? A ( \ in f ig u r : i l iv e  A p ­
proach  to  D ecis ion In te g ra tin g  In te rn a lio n .d  
and D om estic  Law, 18 llarv.Int'l L.J. 19 (1977).

IJNrri'iD STATUS of America, 
Plaintiff-Aiipellcc,

V.

Andrew RHNFKO, Defendant-Appellant. 

No. 78-5482.

United Suites Court of Aiqieals, 
Sixth Circuit.

Argued April 9, 1979.

Decided June 19, 1979.

Rehearing and Rehearjyg En Banc
Denied July 31, 1979.

Defendant was convicted before the 
United States District Court for the Etist- 
ern District of Michigan, Southern Division, 
Philip Pratt, J., of income tax evasion and 
failing to file, and he ajipealed. The Court 
of Appeals, Cecil, Senior Circuit Judge, held 
that; (1) the prosecutor’s supposed improp­
er argument concerning expression of per­
sonal opinion of guilt, misstatements of law 
and fact and shifting burden of proof did 
not rise to level of plain error; (2) court 
properly instructed that jury could consider 
rea.sonablencss of defendant’s explanation 
as to his increase in net worth as bearing on 
his consciousness of guilt; (3) in prosecution 
for income tax evasion and failure to file, 
admission of alleged hearsay testimony of

4. On the question of "policy or custom," police 
records are said to show, according to reports 
we do not find in this record, that during the 
preceding eight years Memphis police officers 
killed seventeen fleeing burglary suspects; thir­
teen were black and five were youths. Accord­
ing to the same reports, Memphis iiolice offi­
cers killed twenty-four individuals during this 
period in connection with crimes of violence or 
in self-defense; they attempted to use deadly 
force on 177 occasions, 114 of which were in 
connection with property crimes. See the orig­
inal certified appellate record, document 45. in 
W ile y  V. M em ph is  Police D ep 't, 548 F.2d 1247 
(6th Cir ), cert, denied, 434 U.S. 822, 98 S.Ct. 
65, 54 L.Ed.2d 78 (1977), as summarized in 
Comment, D ead ly Force to  ,‘\ r re s t :  T rigge ring  
C n n .s tilu lio n ,il Keview , II ll.irv.C.lt.— CM,.!,. 
Kev. .361, 362 n. 4 (1976); Report. Tenn. Adv. 
(..oinmiltei' to U..S, Civ. Kij'.hts Comin'n, C i\'ic  
C ris is— C iv il  Challenge: P o lice -C o m m u n ity  Re­
la tio n s  in M em ph is  81 (1978).

I'!'

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