Brief of Amicus Curiae for the Respondent-Appellee

    >



Queslions IVcHcnle*!

Whether the rneially neutral cenninon law fleeing felon 
Btatute which confers unlimited discretion on police ofli- 
cers in determining when a non-dangerons, fleeing felon 
should be shot is racially discriminatory as applied.

II
Whether a state statute allowing law enforcement ofli- 

cers to shoot fleeing felony, susi)ects, whom the oflicors 
reasonably assume to be unarmed and engaged in non-vio­
lent properly crimes, violate tbe suspects’ due process of
law.



u

TAWLE OF CONTENTS

PAOF)

Qufifltioiis I’ rcaciilod ......................

Toblc of Antlioritioa ....................

Slalcmont of the Case and Facta

• • •m

A a O U M K N T  I—
The Racially Neutral Common I^aw Fleeing Felon 
Statute Which Confers Unlimited Discretion on 
Police OITicers in Determining When a Non Dan- 
gerona, Fleeing Felon Should Be Shot Is Racially 
Discriminatory as Applied .......................................

A a O U M W N T  II—
A State Statiite Allowing Law Finforcement OlTi- 
cera to Shoot Fleeing Felon Suspects, Whom the 
OlTicera Renaonahly Assume to Be Unarmed and 
Engaged in Non-Violent Property Crimes, Violate 
the Suspects’ Due Process of Law ........................... •

.............  18
(JoNOI.ORION

111

T*nbH or AuTnomxiF„s

^  PAOWGases:
Arlington Heights v. Metropolitan Housing Corp., 429

U.S. 292 (1977) ................................................................. '
Atkins V. Texas, 325 U.S. 398 (1945) .............................
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) .... B» 
Castaneda v. Partida, 4.30 U.S. 482 (1977) .. .6,11, Hn, 12u

Cupp V. Murphy, 412 U.S. 291 (197,3) .............................
Furman v. Georgia, 408 U.S. 2.30 (1972) .......................  9»
Garner v. Memphis Police Dept., 710 F.2d 240 (Gth

Cir. 1983) ......................................................................
Gregg v. Georgia, 428 U.S. 153 (1970) ...........................
Hernandez v. Texas, .347 U.S. 478 (1954) .......................  ^
.Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970) .......  13

Malinsky v. Hew York, ,324 U.S. 401 (1945)
Bochin v. People of California, 342 U.S. 105 (1951) .15,17

Simnwns v. City of Chicago, 118 111. App.,3d 070, 455 ^
N.B.2d 232 (198.3) ..........................................................

Terry v. Ohio, .392 U.S. 1 (1908) ...................................
Turner v. Fouche, .390 U.S. 340 (1970) ...........................

U.S. V. Watson, 42.3 U.S. 408 (1970)
Washington v. Davis, 420 U.S. 224 (1970) lOn

Whitus V. Georgia, .3,85 U.S. 545 (1907) .............. ............  ^2n
Wiley V. Memphis Police Dept., .548 F.2d 1247 (0th Cir

1977) .................................................................. ..
Pick Wo V. Hopkins, 118 U.S. .3.50 (18.80) ....................... 8



PAGP!

Covslilutional and Statutory Authorities:
1 ̂U.S. Oonoiilntion titncnd. IV .............................................

ir.S. Ooiistiinlion nmeiid. XIV , ...................................  2,8

FI. Slat. Ann. §776.05 (1983) ...........................................  6”

111. Rev. Slat. Ch. 38, §7-5(a) (1977) .............................
Mo. Rev. Rtat. §559.040 (Vernon 1969) ........................  6n
Mo. Rev. Slat. §563.046 (3 )(2 ) (a) (Vernon 1979) .....  6n
N.Y. Penal Law §35.30(1) (a) (McKinney Supp. 1975) 5n

Tenn. Code Ann. §40-7-108 .................................................

Wia. Slat. §939.45(4) (1973 ) .............................................

Other Authorities;
A. Rent, The Politics of Law Enforcement (1974) .....  9n

Fyfc Blind Justice: Police Shootings In Memphis, 73 
Crlm. L. & Criminology 707 (1982) .............................

Harper, Accountability of Law Enforcement Officers in 
the Use of Deadly Force, 7 Black L.J. 347 (1981).. .7n, 1 n

D Perry and P. SornolT, Politics at the Street-Level:
The Select Case of Police Administration and the
Community (1972) .........................................................

W LaFave & A. Scott, Handbook on Criminal Law
(1972) .........................................................................

Comment, Deadly Force to Arrest: Triggering Consti­
tutional Review, 11 Harv. Civ. Rights—Civ. Lih. L.
Rev. 360 (1976) ...............................................................

National (Center for Health Statistics (NCHS), Hivi- 
Rion of Vital Statistics (U.S. Pnhiic Health Service)
(1978) ................................................................................. "

iv
PAOR

Note, Tennessee Code Section 40-7-108 authorising the 
use of deadly force against an unarmed suspect of 
a nonviolent felony is unconstitutional under the 
Fourth and Fourteenth amendments—Corner v. 
Mempshis Police Department, 710 F.2d 240, 52 H.
Cin. L. Rev. 1155 (1983) ^

Note, The Unconstitutional Use of Deadly Force 
Against Non Violent Fleeing Felons:
Memphis Police Department, 18 Georgia L. Rev. 1.1/
(198^) ............................................................................. -

Substantive Due Process and the Use of Deadly Force 
Against the Fleeing Felon: Wiley v. Memphis
Police Department S Mattis v. Schnarr, 7 Cap. IT.L. 
Rev. 497 (1978)

V



Nor. 83-1035 
83-1070

In thh

( f l im r t  n f  tl| f l u i t r i i  & tu tP 0

Oclobor Tonn, 1984

T hh Statb of T bnnf-brkr,

and
Appellant,

Mbmphir Policb Dbfartment; City of Mbmphir, 
T hnnbbrbb,

Petitioner!!,
V.

CbBAMTBR Oa b n b b , HR fatlicp Riul 00x 1. of kin of 
Edward Eugene flamer, a dcceaRod minor,

Respondent-Appellee.

BRIEF OF AMICUS CURIAE 
FOR THE RESPOINDENT-ArPELLEE

Sinlemciil o f  llic Case and Fads

ThiR io n c'v'* nclion before tbe United SiaieR Supreme 
Court after certiorari to review the dcciaion of the Sixth 
Cirent Court of AppealR wiiR granted to the State of Ten- 
iieRRoe, Appetlant, and the Memphia Police Department 
and the City of McnijihiR, TenneRRee.

A Rummary of the factR are that on Octol.er 3rd, 1974, 
two police oiricerR reR|.onded to a report that a black male, 
Edwar.1 flamer, wur rccii entering into a hoiiRc in Riibiir  ̂
Imn MempliiR. After ipieatinning tlie neiglibor "'ho called 
in the report, they went to the houRC in (pieation. Ih o two



oITiccrs Rplit up and went around the sidea o f the house. 
Upon reaching the hack o f the house, Omcer Hyman ob­
served someone run from the house. He shined a flash- 
liglit on the suspect and concluded the latter was unarmed.

Identifying himself ns a police olTicer, the olTicer com­
manded darner to halt. When Garner failed to halt, hut 
instead attempted to climb a fence, the police fatally shot 
Garner in the head. The decedent was only fifteen years
old.

ARGUMENT I

The Racially Nciilral Cotiiiuon Law Fleeing Felon 
Slaliile Which Confers Unliiiiiled Discrelion on Police 
OITicers in Delermining When a Non-Dangerons, Fleeing 
Felon Should Be Shot Is Racially Discrinilnalory as
Applied.

One of the grounds upon which appellee-respondent main­
tains the Court should nirmn the decision o f the Sixth Cir­
cuit Court o f Appeals is that the Memphis Police Depart­
ment policy authorising the discretionary shooting of non- 
dangerous fleeing property crime suspects violates the 
Equal Protection Clause o f the Fourteenth Amendment 
because it discriminates against people because o f their 
race.

Statistics recorded for the City of Memphis substantially 
show that a disproportionate numher o f blacks and other 
minorities will be victims at the hands o f police officers 
under the common “ neeing felon”  or “ deadly force statute 
than whiles. The record is replete with statistics that 
when appropriately analyzed dictates the abolition of t le 
common law deadly force statute in Tennessee. App. HfiO- 
1409.'

lo iliP record in IVitrj/ v. Memptm rolice Departmenf  ̂
548 F ‘2(1 1247 (Otli Cir. 1977) arc lo the .Toiiit Appendix in the 
Rixth Oirciiit and arî  de.signntcd as App. .

From October lOlh, 1900, to October ,1rd, 1974, the Mcni- 
phis Police Department recorded approximately 225 in- 
slaiices of firearm discharges lo attempt to slop fleeing 
felony suspects. Approximately 31 instances of police fire­
arm discharges resulted in death. Id. Non violent property 
crime suspects accounted for 114 of those shot at by tie 
police. Of the 114 shot, 90 were black (21 juvenile.s, .37 
adults, and 37 of unknown age) and 10 were while (one 
juvenile, ten adults and five unknown). Two were of un­
known race or age. Of the 17 victims suspected of burglary, 
while only four were while, 13 were black (five .luveniles 
and eight adults). Id. Amazingly, only 24 victims were 
killed in the commission o f violent crimes or because the 
police were acting in self defense or in the defense of others.

A detailed analysis of use of deadly force by the Memphis 
Police Department is found in Appellee’s Brief at 27-29. 
Analysis of the data reveals that although black citizens 
were found to account for 70.0 percent of the arrest popula­
tion for properly crime olTcnses, they accounted 
percent of the shooting victims in property crimes. Id. ni. 
27 Thus in a city where the white population was greater 
than that of the black, the death rate for black propcHy 
crime suspects was substantially higher at .03 per 1000 
black properly crime arrests, than white citizens at .4.1 per 
1000 while priqierly crime arrests.

The disparities increase tremendously for property crimq 
suspects who are shot at by police. Black citizens have 
the highest rate of 4.33 per 1000 black property crime ar­
rests compared with a while rate of 1.81 per 1000.

Finally, the statistics reveal that blacks are four times 
more likely to be wounded by |.olice tban whites, .580 per 
1000 blacks and .113 per 1000 wbiles.' These figures iin-

Ori(>f nt. ‘28. The preerdinfr analysis was 
by m  .James Fvfc wl.o roy\v̂ ■̂rd tl.e (Inin nml '’7’'”.'" ^
OITrrcnIial ra.aal rcpr. senlnlion in Urn  ̂ "
ia a prafossor nt American Univers. y Wasbn.plon, D.(... and a 
lending inillmrity on tlie pobee (is(> of deadly force.



doubledly show that the use o f deadly force hy the City of 
Menipliis police depnrtTnent had a disproportionate impact 
on black citir.ena. More dcvestatingly, a close look at the 
evidence shows that black jnvenilcs arc the victims of po­
lice shootings far niore often than white Juveniles.

In each separate category of criminal olTonscs, police 
oiricers more readily discharged their firearms at black 
youths, killing more of them than white adults and white 
Juveniles condiined. Just as in Garner, the majority of 
these black youths arc killed in situations involving non­
violent property crimes.

Data collected from major cities throughout the tJnited 
Stales demonstrate that a significantly higher percentage 
of blacks are victims o f police use of deadly force. For 
example, from IffbO I960, blacks comprised 22 percent of 
the total population in Philadelphia, yet they accounted for 
87 5 percent o f the deaths hy police ofTicers. R.108.3. Tak­
ing into account the dilTcrcntial racial representation in the 
arrest population, black suspects wore approximately 
twenty-two times more likely to be killed than whites 
Analysis of these shooting incidents also revealed that 
more than half o f the victims were under 24 years old.

Similarly in Chicago, from 1969-1970, although blacks 
constituted only 33 percent o f the population, they,,ro 
counted for 55.4 percent of the arrest population and 70.9 
percent of the fatalities. This is especially sigiiincant in 
light of the fact that the fatality rate of whiles is approxi­
mately onc/sixth that o f blacks, and whites only constitute 
35 7 percent o f tlie arrest population. R.1084. In a study 
performed in Chicago during the same period statistien 
revealed that Spanish-Americaus had the 
rate for the entire population at 4.5 per 100,000; bine

Pm rrmnl below ore to the Joint, Appeinlix in the 
Sixth c!."i;it nn!l ore .lesipnnted ns U. -  . The prrcecl.na .nfornin- 
iion wns obtnined from n study on the police n.se of dead y force 
l.rcpnred by tbe I,nw Rnrorc.enicnt. Assisinnee Adnmiistration, tl.8.
Dept, of Justice in IH?!).

deaths accounted for 2.67 per 100,000; and whites, 0.34 
per 100,000. 11.1085. This slinly also indicated that blacks 
accounted for 73.3 percent of the arrest population for 
felony ofreiises and 74.7 percent of the fatality victims, 
a conclusion consistent with the prior Chicago study.

The fatality rale was greatest for suspects under 25 
years old. This observation is consisleiit with the evidence 
for rhiladelphia. Although 85.5 percent of the cases were 
designated Justifiable homicides by the coroner, the re- 
senrehera accounted for the interdependence of the cor­
oner’s olTicc with the police department, slate attorney, and 
internal affairs division, and adjusted this rale downward. 
An obieclive review of the evidence indicated 36.8 percent 
of the investigated incidents exhibited evidence of police 
misconduct. U.1084. The reasons attributed to this dis­
proportionate percentage of Justiliahle hoinicidos are Ihe 
“ lack of independent examinations within the system, td., 
and closed investigative proceedings shielded from the 
public’s view.

All of the Chicago data was collected during a period 
when the State of Illinois had a common law fleeing felon 
slatule in effect. In a recent decision, Simmons v. City of 
Ctucago, 118 111. App.3d 676, 455 N.10.2d 2.32, (1983), in̂  
lerpreting 111 . Rev. Slat., ch. 38, §7-5(a) (1977 the court 
rccognixed that the common law authority of police omcers 
to use deadly force wns curtailed to use only against of 
fenders engaged in a "forcible felony” . States proscribing 
this common law rule have not been challenged on con­
stitutional grounds.

A study conducted in New York« for the years 1970 to 
1973 show that 73 percent of the individuals killed by po-

(1 ) (n )  (McKinney Rupp. 1!)7r»).



lice were niiiiorilica: 52 pciceut black and 21 percent His­
panic, in comparison to 10 percent white. R.108G.

Tlu  ̂ rc[»ort also revealed that there are significant dis­
parities based on the race o f the policeman/olTender, and 
that this (lisparity occurs ns the resnlt of racial discrim­
ination on the part o f indivdnal ofiicers. During this per­
iod white ofiicers fatally shot 9C black and 4 Hispanic 
criminal suspects. Id. In contrast, the number of wlnto 
suspects killed by black and Hispanic police ofiicers com­
bined, wns only two.' Hispanic ofiicers accounted for one 
percelit of the police force, yet killed two percent o f tho 
black victims, and six percent of all Hispanic vrctinis^ 
I1.108G. Yet, theso figures do not preclude a finding of 
racial discrimination against minorities.'’'

1,1 the aggregate sample of 320 shootings from seven 
large cities in the United States,' it was determined that 
•10 percent were fatal shootings and 79 percent of the 
shooting victims were black. R.1093.

At the time of this study three other cities that codified 
the common law statute permitting the use of deadly force 
to arrest a felony suspect were Kansas City, Miami and 
Milwaukee.’ Based on the data provided for Kansas City, 
black citi7.cns were 7.5 times more likely to be victims of

n lOBG. AUhougli black police offleers 
of tbc New York rolicc Department lietwecn 1970 and 1973 they 
were far more likely to shoot blacks and Ilispanics (9 and 18 per­
cent, respectively).

V. rartida, 430 U.S. 482, 499 (1977) (As a 
maner of law one should not assume that members of 
,S , l e  and distinct group will not •■discriminate against other
ineinbeis of their group.")

‘ The seven cities included: Birmingham, Al'ibnina; Detroit,
Michigan; Indianapolis; Indiana; Km.s.as City, Mis-souri; Oakland, 
California; rortland, Oregon; and Washington, D.C.

1 Mo llev. Slat. ^559.040 (Vernon 1909) mi
Slat. 5̂(53.040 (3 )(‘2)(a) (Vernon 1979); Fla. Slat. Ann. §770.0.
(1983); Wis. Stal. §939.45(4) (1973).

police use of deadly force, than their while counterparts. 
Similarly, in Miami the ratio of blacks killed in comparison 
with whites was 8.8 to one. However, Milwaukee exhibited 
tbc most disproporlioimlc rate of all three cities. Blacks 
were victimized by police use of deadly force at a rale 
29 5 times more than their white comilerfiartB." Altboiigb 
the authors concluded Kansas Oily and Miami exhibiled 
high rates of jiislifinble homicides, 4.50 per 1,000,000 and 
7.0G per 1,000,000, respectively, these figures are qiies- 
tionable.’ The discretion iiermilted police ofiicers in l.lie 
use of deadly force to elTecl arrests under common law 
statutes are subject to dilTerent interpretations Rt.- l̂owide 
throughout various law enforcement deparlmenls. I tiis 
lack of specific guidelines for the use of deadly weapons 
under this common law statute means that the killing o 
n non-violent properly crime suspect may be 
iustifiable in one part of the stale and not another. Tims, 
it is inevitable that these disparities in perception are 
bound to exist among ofiicers within the same department.

One study reveals that approximately 89 percent of all 
police nationwide who killed civilians were white, 7 percent 
o f the police were black and 4 percent were Simnish Amer­
ican. R.1080. •

• R. 1097 (Inble 6).
•11. 1099 (table 9).
I. Rubslantive Due Proces.s ami the Dae of Demi I y 

the Fleeing Felon: Wiley v. Memphvt PoUce Dept. 
thaarr 7 Cap. U. h. Rev. 497, 498 (1978) recognizes that s t ^  
Surls v;ry in determining when deadly force may be used to elTeet
an arrest.

II R 1095 DilTerenees in perception are the result of diverse

•M7 355 (1981) Beeniise there is no requneil performanee level, 
■/.'rlvidual H iee  ofii.ers delermine what is reasonable and ,ust in 
a iiarticular instance.



Nntionwido dntn nlno show that a larger number of 
blacks become civilian fatalities at the hands of police than 
whites. Non-whites constituted between 47 and f)0 percent 
o f the fatally injured.'* Although blacks constituted ap­
proximately 10-11 percent o f the total American popula­
tion in 19G4 and 1908, one study shows blacks constituted 
28 percent of total arrests and 51 percent o f total civilian 
deaths.'* Thus, the disproportionate number of blacks 
fatally wounded by police use o f force justifies an assess­
ment of whether there has been a violation of the equal 
protection clause of the Fourteenth Amendment.

The Court has long recognized that the discriminatory 
application of a state statute on the basis of race is pro­
hibited under the equal protection clause of the Fourteenth 
Amendment. See Yick Wo v. Hopkins, 118 U.S. 356, (1886). 
A state law neutral on its face, yet reserving arbitrary 
discretion in the law enforcement officers to determine 
whether a suspect should live or die, opens the door for 
unending discrimination against any race or class of peo­
ple thus, nullifying the right to equal protection under 
the law. See id. at 302. The common law fleeing felon 
statutes impose no guidelines or standards qn police officers 
discretion in using deadly force to clTcct an arrest. Sec 
Tcnn. Code Ann. ^40-7-108; Accord, Florida Stat. Ann.
^776.05 (1983 ):

A law enforcement officer, or any person whom he has 
summoned or directed to assist him, need not retreat 
or desist from efTorts to make a lawful arrest because 
of resistance or threatened resistance to the arrest. 
He is justified in the use of force which he reasonably

”  U 1^0-1077 ciliitg Nntionsl Center for Ilenlth Rlstisties 
(NCIIR). Division of Vital Statistics (U S. Public Health Service)
(1978).

'» n  1079 1080 The autlirtr also notes that in 1904 when blacks 
neeonnted for less than thirty i>ercent of arresla for major crimes 
—bomieiiles, rape, robbery, OKKravatetl assault 
ami auto theft— "blacks constituted 51 percent of civilian deaths.

8
believes to be necessary to defend himself or another 
from bodily harm while making the arrest or when 
necessarily committed in retaking felons who have 
escaped or tvhen necessarily commilled in arresting 
felons fleeing from justiee. (emphasis added)

These statutes and others which codify the common law 
allow law enforcement onicers to use diverse methods, in­
cluding deadly force, lo effect an arrest." Lack of stan­
dards permit a host of factors, including race, to play a 
part in which suspects are shot and which are ariested 
by some less ilestructive alternative. Statistics bear out 
the fact that left to their own discretion, a significantly dis­
proportionate number of black suspects will be fatally shot
by police.

Prevailing case law clearly embraces the proposition that 
racial discrimination can be inferred from the historical 
background underlying the decision. Arlington 
Metropolitan Housing Corp., 429 U.S. 252, 200-207 (1977). 
Historical discrimination within the Memphis Polce He 
piirtment is a fact. 1’he number of blacks and minorities 
employed within the department at the time o f (larner’s 
death was leas than 0 fiercent." This number was signif­
icantly lower than the racial distribution of the entire 
population of Memphis : 01 percent white, .19 percent black.'

H A look nt Furman v. rirorgia, 408 U.8. 288, 250 257 (1972) 
(l)miKlns, ,1., coiicurriiiR) revests “ . . cliseretion.sry s ntu w are 
iimWitiitioiial ill tbeir operation. They are pregnant 'vitli (bŝ  
erimination, ami iliseriinination ts an ingredient not compatible 
witli the idea of equal protection of tbc laws .

A Dent Tbe Polities of Daw Bnforeeinent 95 (1974). Tbo 
racial distribution of policcn.cn in tbe sample is 
Ibe same found tbrougl.oul tbe cnl.re police dcpartn.ent (Tab e 
r, 4) Tbe ai.tbor was an assistant professor of poldical 
Meinl.l'is Ktatc University nnd a consultant to Ibe Mempb.s I olice 
Academy of Ibe Mcmpl.is Police Department r.n.ning Division at 
tlie lime of Ibis publication

•"Id. at 92.



A b Into as 1908, “ recniitmciit, Bclcction and promotion in 
the dcj)artment was caaentially political.”  Discrimination 
was recognized by the public, police officials and aociolo- 
giata. The tenaion that exiated between white officers and 
black citizens had led to the creation of programs to im­
prove police-community relations. However, in Memphis, 
police liaisona with the black community rarely relayed 
these citizens concerns about police brutality and shoddy 
police service. Rven local politicians dared not give in 
to the numerous reipicsts of the black community because 
it would be detrimental to their political careers.”

Sociologists recognized that most major urban cities are 
torn along racial lines over the administration of the law 
and the enforcement o f order. Policemen are seen as 
products of a white environment. They experience fear, 
anger, confusion and frustration when patrolling black 
communities.*'

This consistent pattern of racial discrimination on the 
part of Memphis police officiols, politicians, and street-level 
officers clearly shows a violation of the Equal Protection 
Clause.'* .

In addition, the highly discretionary policy in effect at 
the time Garner was killed contributes to the pattern of

10

Id. nt 113.
”  Id at 113. For example, Claude Armour, vice-mayor and com­

missioner of Imtli fire and police, was aware of problems in the 
black community, but rarely acceded their requests.

' » Id at 42 (footnote omitted), citing D. Perry and P. Sornoflf, 
"Polities nt the Street-licvel: The Select Ca.se of I olice Adminis- 
1 ration and the Community,” (a paper prepared for delivery at 
the annual inceting of the American
Washington, D.C., September 5-9, 1972), P. 37. See aUo R. 1828̂  
1829. As late as 1972 blacks perceived the police as their enemies 
in the City of Memphis.

-’ Compare Wadnnolon v. Davi., 42fi US. 229 (197fi). Unlike 
n.e Appellees in the ease at bar, the officers ,n /Mow were unable 
to show a history of diseriminatory netions, or a single adminis- 
Iralive action taken for "invidious" purposes.

racial discrimiiialion on the part of police officers. 1 he 
policies are subject to the individual’s perception of the 
circumstances at the time he apprehends a (leeing felon. 
Tndividuiil interpretations load to the application of the 
common law in a iioii-aystomatic maimer within one single 
police department.'* These interpretations are inniieiiced 
by the values of the department and the society that sup­
ports them. Thus, ii.se of deadly force in apprehending 
fleeing felony suspects will vary considerably among the 
niimerons departments despite the similarities codified in 
the state statutes.

The common law policy docs not preclude invidious dis­
crimination of any racial classification. Thus, because the 
statute is not applied in the same manner, some officers 
are apt to discriminate on the basis of race, in violation 
of the ccpial iirotcction claiice o f the Fourteenth Amend 
ment.”

As in jury selection cases, where disproportionate ini 
pact on a specific racial class is coupled with a system of 
selection that is discretionary or easily subject to abn.se, 
discriminatory intent may be inferred. See Castaneda v. 
Partida, 4.30 U.R. 482, (1977); Hernandez v. Tex,as, .347 
U.S. 478 (194.*)), Atkins v. Texas, .325 U.R. .398 (1945).

A similar analysis can be employed to show a violation 
o f equal protection has occurred in the context of fleeing

•" llnrt)7r Arcouiitnbilily of Law Rnforcement, Officora In The 
Use of Deadly Foree, 7 Blaek U.J. 347 (1981) advocnles instituting 
a “defense of life” policy wliieli would eliminate arbitrary actions 
and result in greater aeeonntability on llie part of the police in 
their use of deadly foree.

»' See infra p 2-(i, text shows that the majority of officers in- 
volve.1 in police homicides are white. Despite suggestions in U. 
1080 that black officers kill black suspeels tins does not 
the denial of equal protection argument. See Cadeaiedn v. I nrhdn,
luvra 430 118 182. It is conceivable that a hlaek officer wishing
In be ’promoted'may shoot black suspects to curry favor with high 
nvcl officers or he conshlered "one of the hoys” . 3 Inis, it is of 
very little rclevaine whclin r the assailant is a ineinher of a ma­
jority or miiiorily group.

11



12

felon cases. In Memphis blacks accounted for 70.6 per­
cent of those arrested for property crimes between 1969 
and 1976, and 88.4 percent o f these suspects were shot 
by the Memphis police. Appellee’s Brief, supra, at 27. 
Of those suspects fatally wounded 50 percent were ini- 
armed and nonassaultive. Id. at 28. "Memphis police 
killed 2.6 unarmed, non assaultive blacks for each armed, 
assaultive white”  Id. (citation omitted). These differences 
arc as great as those deemed significant in the jury selec­
tion cases.”  The discretionary aspect o f the common law 
statutes result in an unreasonable and totally dispropor­
tionate number of blacks and minorities being kilted by 
police officers.”  These results clearly question whether 
police officers treat all similarly situated non-violent fleeing 
felons in the same manner. Murdering a significantly dis- 
proportional number o f blacks bears no rational relation­
ship to a state objective to preserve the peace within a 
community and apprehend all felony suspects.

In the instant case, appellee provided the United States 
District Court for the Sixth Circuit with enough evidence 
to prove the City of Memphis policy on deadly force was 
motivated by racial animosity. This evidence was errone­
ously deemed insufficient to set forth a prima faeie case 
to prove the existence of racial discrimination in police

” Tn Caslcneda v. Partida, supra, of the 79.1 percent Mexican 
Americans in fhe general population only 39 percent were aum- 
moned for grand jury duty over an 11 year period ; J-
Fouehr, 396 IT.R. 346 (J970) (60 percent Negroes in the total 
population, only 37 percent on the grand jury lists). Whilus v. 
Gcoraia. 385 II.S. 545 (1967) (21.7 percent Negroes in the gen- 
crnl population, only 9.1 percent on grand jury venire).

”  Til Fyfe Blind Justice: Police Rhootings In Memphis, J3, 
Crim h & Criminology 707 (1982), one alternative explanation 
for liic great volume disparity in the number of black shooting 
victims compared with whites is that police practice a policy of 
using “one trigger linger for whites and another for blacks . 
Id at 708. Racism, ns encouraged by olTicers and administratora, 
rcsnlls in "shooling blacks in situations which they would ordi­
narily refrain from shooting whites” Id.

homicides. However, the equal protection claim in Gnrvcr, 
buttressed by Oity and Nationwide data serve to show that 
the Tennessee policy was racially motivated.

ARGUMENT II
A Sinic Slnlulc Allowing Lnw Eiifoicciiieiil Oflieers to 

Shoot Fleeing Felon Suspects, Whom the Officers Ren- 
soniihly Assume to Re Unnniied and Engaged in Non- 
Violent Froperly Crimes, Violate the Suspects’ One 
Process of Lnw.

Appellee correctly asserted that the Due Process Clause 
of the Fourth Amendment prohibits police officers from 
using deadly force to arrest an unarmed person suspected 
of committing a non-violent property crime.”  Relying on 
Terry v. Ohio, 392 U.S. 1 (1968) and Jenkins v. Averett, 
424 F.2d 1228 (4th Cir. 1970), the Sixth Circuit Court of 
Appeals found that the method o f applying deadly force to 
secure the arrest and sei/.iire of a nonviolent fleeing felon 
by police constituted an unreasonable seizure of young 
Garner.

Unlike in the case at bar, the defendant in Terry v. Ohio 
had a concealed weapon and sought to have the same sup­
pressed. Terry argued that since he was not engaged in

13

II It has been RUggested that the 4th Ameiulment due proeew 
teat is easier to apply than the 14th Amendment test heeause it 
eliminateR inquiries into compelling state interê sls, and produeea 
(he same results. Under this test the suspeets fundamental right 
to life is of paramount impnrtanee, and an otTleer may only use 
deadly force to protect the safety of the public or in se f-defense 
See Note Tennessee Code. Fieclion 40-7-108 anthommg the use. of 
deadly force by police officers ayninst an unarmed, suspect of a. 
nonviolent felony is nnconsUlnttonal under the Fourth and Four  ̂
leenlh amendments-Carner v. Memphis ^
|P2d 24(1 52 llniv. Uin. U. Itev. 1155, 1168 ( 1983); .<?ee o/.m Note 
The Vneonstitutionnl Use of Deadly Force Ayainsl 
Fleriny Felons: Garner v. Metnplns Pohee Department, 18 Georgia 
h. Rev. 137 (1983).



14

any criminal activity the police had no reason to arrest 
and search him on the suspicion of being an armed and 
dangerous character. Id. at 9. Yet, although confirming 
Terry’s conviction, this Court still maintained the proposi­
tion that the Constitution forbids unreasonable searches 
and sciz.nreB.

When the arresting olTicer proceeded to apprehend young 
Garner to effect an arrest, it was incumbent upon the o f­
ficer to act in a reasonable manner. An arrest is no loss 
than a “ seizure” o f the person. United States v. Watson, 
42.1 U.G. 408 (1970): therefore, arrestees are entitled to 
the protection o f the Fourth Amendment against unreason­
able seizures o f their persons. See Terry v. Ohio, supra; 
Cupp V. Murphy, 412 U.S. 216 (1973). To kill an appar­
ently unarmed person just to insure that he does not walk 
away is a method “ unique in its severity and irrevocability.”  
Corner v. Memphis Police Dept., 710 F.2d at 243, quoting 
Gregg v. Georgia, 428 U.S. 153, 187 (1976). In the case 
at liar, the police officer, by his own testimony, confessed 
that he believed young Garner not to he armed, yet he 
shot Garner in the head because Garner was running to 
climb a fence in an attempt to get away. Surely, the police 
officer and his companion officer could have used a reason­
able manner of apprehending young Garner short o f seiz­
ing the hoy’s life.

The Tennessee Fleeing Felon Statute, Tenn. Code Ann 
^40-7-108, which the Sixth Circuit ruled unconstitutional, 
clearly gave police officers complete discretion to use deadly 
force against any and all felons to effect an arrest. Ruling 
that Tminessee’s Fleeing Felon Statute is unconstitutional 
was not something done blindly by the Sixth Circuit, nor 
was it fhe first time the statute came before that Court or 
any other Court.

In Wiley v. Memphis Police Dept., 548 F.2d 1247, 1253 
(6th Cir. 1977), based in part on the fact that guns were 
fonml n(‘avby, f he court found the use of deadly force rea

sonable under the circiimslaiices concluding the act of flee­
ing from the scene of the burglary constituted a continuous 
commission of tlie burglary. See also the concurring opinion 
of Judge McCrise in Wiley, supra, at 1256.

During 15th Century England and 18th Century America, 
law enforcement officers were widely permitted to use 
deadly force in arresting a felony suspect because all fel­
onies wore punishable by ileath;’ " llierefore, “ the use of 
deadly force was seen as merely accelerating the penal 
process” without the inconvenience of a trial.”

The 18th Century American view of the common law 
rule was weakened in the second half of the 19th Century 
becau.se although the number of crimen classified as fel­
onies increased, the number of cajiital punishment dim es 
decreased.”  Thus, an of 1976, in the twenty odd states 
who codified the common law deadly force rule, police o f­
ficers, were authorized to use deadly force in many more 
situations than was authorized at common law.’ " Conse­
quently, boys like Garner who may have ordinarily re­
ceived a minimum sentence term or probation arc facing 
the maximum sentence of death without a judge or jury. 
More than thirty states have already recognized the in­
justices of the common law deadly force rule, and the 
Sixth (Tircuit should be apiilauded for doing the same in 
Tennessee.

In Hochin v. People of Cnlifornin, .342 U.S. 165 (1951), 
this Court was faced with whether the sheriffs viol.ated

Coniinent, Deadly Force to Arrest; Triggering Constitutional 
lleview, 3fil, It IlHrv. (!.V. U.-CivJ,. I; Uev. nt .305. iTlonics 
inrltide murder, rnpe, innnsIniiKliter, robbery, Bodomy, innbem, 
liurglnry, arson, priRon break, and larceny.

”  Id., at 305.
/d  at .300 • See also W, lioKavo & A. 8eoU, Handbook on 

Criminal 1-aw V̂,0 (l'»72) (llecanse a mnnber of felon.es are no 
|o„K,.r pnnisbable by dealb, the police olfice.^ ngbt to use dcadlj 
foiee slionld be limited).

Id., at 308, 300.

15



i .
Iho acciiscd’B right to due process when the sheriffs, hav­
ing some information that the accused was selling nar­
cotics, entered an open door to the dwelling, forced open 
the door to the accused’s bedroom and forcibly attempted 
to extract capsules from the accused’s mouth; and when 
that didn’t work, directed a doctor to pump the accused’s 
stomach against the accused’s will and therefrom extracted 
two capsules containing morphine. Id. at 206. In looking at 
the Due Process question, this Court acknowledged that 
the administration o f criminal justice is predominantly 
committed to the care o f the States. Id. at 168. However, 
this Court further went on to say that

“ the requirements o f the Due Process Clause”  inescap­
ably imposes upon the Court an exercise o f judgment 
upon the whole course o f the proceedings [resulting 
in a conviction] in order to ascertain whether they 
offend those canons o f decency and fairness which ex­
press the notions o f justice of English-speaking peoples 
even toward those charged with the most heinous o f­
fenses. Id. at 169, citing Malinsky v. New York, 324 
U.S. 401, 416-417 (1945).

In the case at bar, to uphold the constitutionality of the 
common law deadly force statute would be sanctioning 
questionable police policies and tactics that not only re­
sult in honest mistakes, but deliberate violations of the 
right to human life. Chief Justice Burger’s dissent in 
Biven.’i v. Si(c Unknown Named Agents of Federal Bureau 
of Narcotics, was well taken when he said

I wonder what would be the judicial response to a 
police order authorising “ 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 nnd need; that a “ shoot”  order might 
conceivably be tolerated to prevent the escape o f a

16
convicted killer but surely not for a car thief, a i)ick 
pocket or a sluqdifter. 40.3 U.S. .188, 411 (1971).

The Court lias stateil that “ it would be a stnltincation 
of the responsiliility which tlie Court of constitutional his­
tory has cast upon this Court to hold that in order to 
convict a man the iiolice cannot extract by force what is 
in his mind, but can extract what is in his stomach. Bochin, 
.supra, at 17.3. Yet, would it not be a greater stultUication 
for this Court to say an unarmed iierson cannot be sen­
tenced to death for committing a nonviolent property crime 
by a judge or jury, but that same person can be killed, and 
in effect sentenced to death, for running from the scene of 
a nonviolent property crime by a police ollicer even though 
the (leeing victim was not placing anyone’s life in danger, 
but, apparently, his own.

Therefore, justice dictates that this Court nllirin the Sixth 
Circuit Court of Appeals holding that the Tennessee Slat 
ute as well as other state common law statutes on deadly 
force, violates the Due Process Clause of the Constitution, 
and is, therefore, unconstitutional.

17



18

CONCLUSION

It is respectfully submitted that the judgment of the 
Sixth Circuit Court o f Appeals should be alTirmed.

Florida Chapter o f the National 
Bar Association 

on behalf of
The National Bar Association 

Prepared by:

Pamela A. Brown, Esq. 
1399 Hendren Drive 
Orlando, Florida 32807 
305 277-3287

Evott L. Simmons, Esq.
380 S.Cnmpbell Street 
Daytona Beach, Florida .32014 
904 255-6573