Supreme Court Transcript Proceedings

    OFFICIAL TRANSCRIPT 
PROCEEDINGS BEFORE
THE SUPREME COURT OF THE UNITED STATES

DKT/CASE NO. ^
TENNESSEE, Appellant v. CLEiM̂ rEE GAR3ER, ETC., ET AL.; and TITT E MEMPHIS POLICE DEPARTMENT, ET AL., Petitioners v. CLEAMTEE 

‘ * ‘ GAINER, ETC., ET AL.
PLACE Washington, D. C.

DATE Octc±)er 30, 1984

PAGES 1 thru 56

(202) 628-9300 
20 F STREET, N.W.
■ WASHINGTON, D.C. 20001



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IN TH’£ rUFFEyE COUFT CF TFE UN’'!!? FT^TFF
- - - - - - - - - - - - -  -X

TENNE? SEE ,
A E E 6 ] 1 = r. t ,

Nc. 93-1035

C1EA?^TEE GAFN^r, ETC., ET Al., 

and
KE^'FHIS POLICE DEFART^ENT, ET 

AI. ,
FFt i tione r s,

V .
CLEAN.! EE GAF.'TEP, ETC., ET A I.

1 c. P3-107C

W a p h i n c t c n , F. C.
Tuesday, CctctFr 3C, 199U

The a b ove-e n t it 1 c d matt or cr. rre on rcr oral 
arcumer.t before the Supreme Court the Ur.ited State: 

at 10;C0 o'clock, a.n.

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APFFAP. ANCESi
HFN'PY I. KTFIN, FSCw ''ernrhis, Te m e  s ; cr. b^Yialf 

cf petiticrerr ir. 83-107C.
W.J. .YTCHAEI CCDY, FSC . , Attorney General cf Tennessee; 

Nashville, Tenr.='ssee; on tehalf cf appellants ir. 

fi 3-1 C 3 h .
STFVES L. WIFT-F., FFC., fork. Few York-, or. he.haif of

appellees in 83-1C35 and respondents in 83-1C70.

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c n N X L ' d l s

Or.H  k P.GUyENT CF :

HFKFY I. KI-I'', FSC./
on behalf of petitioners in 53- 1070 

V.J. YICKAIL CCDY, FSC- /
on behalf of appellants in E3-103E 

STFVEN L. WINTEP, ESQ.,

on behalf of appellees in £3-1035 
and responder, ts. i n 83-1070 

HFNEY 1 . KLEIN, ESC • ,
on behalf of petitioners in 

53-1C70 - rebuttal

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1 1 ? C C E E E I K G ^
2 CHIEF JUSTICE PUEG’̂ î We will hear a'l’curente

3 first this ircrr.ing in Tennessee against Garner and th“

4 consolidated case.
5 hr. Klein, ycu ray prcceed whenever, ycu are

6 ready.
7 GFAL AhGUKEM CF -̂'EVPI I. KLEIJ., ESCw
8 ON PEWfLF OF PETITIONEES IN 83-1070

9 hP. KIEIN: hr. Chief Justice, an̂  ̂ ray it

10 please the Court, there are two issues in this case.
11 The first deals with the c c r s t i tu t i c r a 1 i t y of a state

12 statute with regard tc the use by a pclice officer of
13 all necessary rears tc eff-ct an arrest.
14 The second is whether the ir. un ici p ali ty * s r se

15 of deadly force tc apprehend a fleeing turrlary suspect

16 afrer exhausting all other reasonable rears is

17 constitutionally permissible.
18 The reason the ci'-y asked fcr certicrari in
19 this case is that it has a substantial public int<-rest
20 in being able tc apprehend persons fleeing from serious

21 crimes such as burglary in the first degree.
22 The facts in this ca'̂ e are s.uch that they lend

23 themselves tc show that the officer involved had

24 probable cause to believe that a felony had teen

25 committed.
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1 Cn tht evening cf Cctcber 3rd, 197U, the
2 police received c ce 11 to coint̂  re the scene C j. whe . ves

3 an apparent treaking and entering. The police arrive'^

4 on the scene. They i«ere advised by the next-door

5 neighbor that "They are breaking in n‘=»xt door."
6 The. officer then rroceeds survey th<=

7 situation and then to move, into the area wher*̂ - th'̂

8 reported burglary was taking place.
9 The officer goes down the side cf the house,

10 and as doing s c ,  notices as he cones to the rear cf the
11 house that there was a window that had teen broken, and

12 a garbage can ’'eneath the window, which appeared to him

13 that scirecre had used the carbege can net up to *hc
14 window, had broken the window, and then had gained

15 admittance to the hone.
16 This all took place at apprcxinately 11;CC

17 o ’clock in the eveninn. officer then, as he reaches

18 the back cf the house, sees an individual exiting from

19 the house and running roward the back of the yarn.
20 There was a lot cf clutter in the yard at the time.
21 There was a small mesh fence that was an obsta.clf to the
22 police officer as he started to move into the back yard.
23 There was a chain link fence in the back cf

24 the yard which was approximately six feet tall. The
25 suspect, after exiting the tack door, immediately

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1 proc&sds to thp fsr.ce/ and then pauses at the fence in a 

steeped position.
""he officer qives the cemmand to halt, 

police. At this point, the individual turns and Iccks 
in the direction of the police officer, and aces rerrcin 

in this stooped pcsiticn ircT.entarily, and then as the 

officer is atcut to make his advance ferward tc atterpt 

to app rehend the individual , he then begins to jump and 

vault over the fence, at which time the officer fires, 

and unfortunately it results in the death of the 

suspec t.
New, these basically are th<-- facts that are 

involved, and as I pointed cut earlier, there can he 
little or any question that at the tine the officer 

arrived cn the scene, there was probable cause if net 
more to believ- that a burglary in the first decree had 

beer, ccinritted.
Puralary in the first degree under Tennessee 

law is the breaking and entering in a dwelling place in 
the nighttime with intent tc commit a felony, and the 

Tennessee legislature has determined that burglary is a 

serious crime, which, if nothing more, is evidenced ty 
the fact that it carries of not less than five, no more 

than 15 years.
The officer also made the judgment or

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1 determ inaticn, as he sc testi-f'i&d, that he cculd net
2 apprehend this individual by any ether means. ’̂cw,

3 under Tennessee la;-, it is clear that an. officer '̂ ust

^ use all means available tc apprehend a fleeine felcn,
5 and he is crly justified in using deadly fence as a last

6 resort .
7 This officer testified that because cf the

8 conditions cut at the place, the fact that it was dark,
9 h<= was unfamiliar with th ■= neiohb erheed , and that teyend

10 the fence there was growth -- I think he described it

11 Johnson grass -- which was rather tall, that he knew
12 that cr.ee the individual got beyond the fence, there was
13 nc chance fer him tc apprehend, and that's the reason.
14 that he used the deadly force to attempt tc apprehend.
15 Few, in. the court prcceedines below, the

16 District Court found in. favor cf all defendants. Named
17 ■ in the original action was the City cf Memphis, '•he

18 individual officer who was on the scene, and two
19 supervisory p^-rsonnel.
20 The case was appealed tc the Sixth Circuit

21 Court cf Appeals, and was sent back because in. the
22 mear.tiire this Court had decided the harell case, and

23 that the Court cf Appeals decided that the case should

24 be remanded in light cf Manell to further consider
25 whether there was any liability on the part cf the

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The judoT^ent as ■̂c individual defendent-

was affirmed by the Court of Appeals. The case was 
reconsidered by th«̂  District Judge/ and again the 
District Judge found that the city was rot liable/ found

in favor of the city/ and the case went up again.
Th“ second time the court declared ^hat the 

Tennessee statute allowing th<=' use of deadly force was 

uncons tituticr.c 1. The reasons given were that it did 
not put sufficient limits on the use of deadly force/ it

was toe disproportionate/ and it did net make

distinctions cn the magnitude of the offenses.
CUFTTICK: hr. Klein --

MR. YeS/ sir.
CRRCTic.v; -- did the Court of Appeals say 

that the statute was urccnstitutional across the heard 

or on its face, gp did it just say it couldn't 

constitute a defense in this action?
KR. KLEINi It said it is unconstitutional 

across the board.
ODEJTICy; Did it intimate that there was some 

First Amendment problem involved here?
KP. KLEIN: NC/ sir/ there was nc indication.

The Fourth and Fourteenth Amendment were the two bases 
that the court used for declaring it unconstituticra 1.

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1 The court said that the use cf deadly force 
cculd only te iir.Flenien ted if a suspect had ccrrrrltted a 

violent crime, if there was .prchahle cause to believe 

the suspect was armed or tr.at he would endar.ser the 

physical safety cf ethers if ret captured.
The standard which the Court cf Appeals used 

was based uper the hcdel Feral Code. I- is the city's 
position that the ycdel Penal Cede was implemented to be 

used as a ejuide for lecislatures, and that re-lly *'he 
purpose cf the hcdel Penal Code should te as a guide tc 

lecislatures in the event they see fit to enact 

legislation tc cover situations such as this.
The rearers the city disagreed with the Sixth 

Circuit cpir.icn are, first, the city feels strcngly that

the court erred in concluding that :his was not a

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serious crime. Again, I <rmrhasize and reiterate, the 
crime involved was burglary in th*̂  first degree. Arc 
the court doesn't really deal with why it considered the 

crime tc te nonviolent. They did label it as a 

so-called prcp-'=rty crime.
Also, the city feels that the standard which 

was imposed, which was that which is based upon the 
Model Penal Cede, is an impediment to apprehension. 
Because cf the standards placed under the Model Penal 

Code, it puts an undue burden cn law enforcement in
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1 situations such as this in attemptina tc appreheni 

fleeing felons.
Because cf the standards set cut in the hcdel 

Feral Cede, it requires a police officer tc make an on 
th= spot constitutional analysis and still react tc the 

exigencies cf an emergency situation.
Fecause cf these standards set cut ty 

Sixth Circuit, it is difficult to de t& rmine how an 
officer will ever know reascnatly or otherwise- i the 

felon is allowed tc escape whether he will ever again he 

free tc commit another crime if not apprehended.
cUFSTlCNi ''r. Klein, may I ask you a

question?
hF.. ‘'IFIi; Yes, sir.
CUZS'TIC'i ; Supposing there had teen another 

officer on the ether side of the fence unteknewnst tc 
the man who felt it necessary tc sheet the flceino 
felcn, and he had later beer -- say he had missed and he 

had actually '■•=en apprehended. What penalty could th? 
state have impesed cn him under your cede fer the crime 

of not submitting to the officer's demand?
^'LEIK: ct submitting tc the arrest?

CUESTICNi Yes, fleeing. What sort of crime

is it?
MF. KLEIN; Your Foncr, I might add factually

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there wac another officer on the scene.
CUFT'^IOi; Put ycu ur.derst anc ‘ m y 

hy p-cth etical. Just say instead c-*" shootino hir. they had 

been able tc catch him. He has committed a crime, 
surely, cf escapino in defiance of the officer’s command 

tc hal*. I am just wondering, what is *he penalty under 

Tennessee law for that crime?
''H . KLEIN: Well, cf course, he is still in

tĥ  ̂ process cf perpetra tiro buralary in the first 

deg re e .
CUFETION ; I understand. He is subject tc 

penalty for that. Fut I G. S sure he has committed a 
separate offense when he flees.

'’R . KLEIN; In refusing tc chey the officer’s

ccmmand to halt.
EUESTIG’': '̂ -s.
KF . KLEIN; If Ycur Honor please, that is —  

there is a city ordinance which covers tha*, but it is a 

very miner efic-nse, and it really would be a city 
violation. It is not a state violaticr.

CUFETICN It is not a state violation?
KP. KLEINi Nc, sir, it is not a state 

violation. Of course --
QUESTION; Sc the cnly deterrent that the 

state imposes for that offense really is to shoot the
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mar. at the tiT*-'.
"5. KIZIK; '■ell, if they cannot apprehend him 

by any ether means.
QUESTION.* Tiat’s richt. iut if he can 

apprehend him, basically you ar® tellinc me- there really 

is rc ]egislative deterrent cf-er than the threat that 

if you don't aet away you might get shot.
h.E. KlEIiv; That’s correct, sir.
QU EFT ION: Vhat is the penalty fer firs”

decree burglary?
. KLEIN: Not less than five nor more than

15 years. And if a weapon is involved, it becomes ret 

less than ten nor m.cre than 1- or 15 years.
i f'- mere than UC?

NP. KLEIN: Fifteen, sir.
CLFETIC^-; V’h.en a weapon is invclved?
LE. ‘'L’̂I*-': Vh.ere a weapon is involved, not

less than ten nor more than 15 years, if a weapon is 
invclved, sc the Tennessee statute maAes.it even a more 

serious crime if a weapon is invclved.
The city further contends that what the Eixth 

Circuit has dene is im.posed a standard which should b® 
left to the legislature. It is a standard of morals, a 

standard of public policy, and it is the position of the 

city that this is something that should be left to the
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legislc tures.
What thf* court did war, under-the gulTe cf 

constitutional —  is imposing upon the various states 

which would he involved its own standards. Furthermore, 
the level cf crime which would justify use cf force 

should also to left to the legislature.
Tennessee has determined that turglary is a 

serious crime, and therefore it makes it all the more 
important that in a situation such as this, that the 
right to apprehend is compelling, and is certainly a 

compelling state interest.
The legislature has an interest in prctectira 

its citirens aaainst hurclaries. Of course, we confine 
ourselves to the tacts of this particular case, and when

•f,

we talk in terms of compelling state interest as opposed 

to th.3 riahts of the individual, the city takes the 
pcsiticn that the individual burglar has nc 
con St i tuti on al rioht to commit burglary and escape the 
censequerces , and he has nc constituticra1 riaht tc flee 

frem hurclary when tcld tc stop.
And in this particular situation, when the 

police officer arrived cn the scene, all the individual 

had to dc when confronted by the officer and told to 

step was tc do sc, and that wculd have teen an end tc 

the si t ua ti c n.
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1 Sc, really, there are two thinps that are 

involved frcm the standpoint of the individuals^ Fe has 

put hiirself in the position ty coirn'. it ting the burglary, 
which he takes to ^c himself, and certainly assumes a 
certain risk cf what might happen when he dees put 

himself in that pcsiticn, and, then secondly, when told 
to stop, all he has to do is stop, and the matter is at 

a n end .
Pnd all the constitutional rights t^at he 

contends that were deprived cf him. cerre intc play. Fe 

gets a fair trial. Fe gets an opportunity to be heard. 

But in this particular case the individual chose tc 
perpetrate the crime and chose to continue after being 

told tc step.
CUEFTIC’’; '■ r. Klein, may I ask ycu a 

qu-sticn? In your reply brief, ycu emphasize the 
‘'enphis policy, and you say that it is lim.ited .tr 

situations where there are violent crimes, and you list 

the types cf violent crimes.
hP. KLETNw Yes, Your Honor.
CUEBTIONi Dees the Memphis —  ycu call it a 

policy. Is it a state ordinance, a city ordinance?
KE . KLEIN; Ycur Fcncr, what has happened is, 

the city has implemented what is known as a general 

order.
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ClE?TIC?»'i A general order by the city

council? ''
“P. vriFiNi s-c, sir, it is by the city pci ice

depart irent.
CUEETIC’’; The pclice departrrent. 

y.? . KLEIN i Yes , sir.
CnESTIO;'''Eces the police d epar tiF. er. t have 

authority to lirit the full scope cf state lav?

KP . KirihJi he, it dees not.
TT t C , • Dc ycu consider this ordinance

consistence with state law?
hF. ’'LKIhi Yes, sir.
CUETTTOh i Is state law limited only tc 

serious violent crimes'
YE. KLEIN; '̂ell , that's —
CĈ E'̂ 'IC!*; It doesn’t say sc, dees it? 
yp, . KLEIN; It doesn’t say sc, hut I ni^ht add 

the courts in interpretinr the state lav, and again, the 

state lav is really the com men law, and the courts in 
interpreting the state lav have said even as far hack as 

1879 in the case cf Peneau versus State that the statute 
only intended that the use cf deadly force be acairst 
what I categorize as serious crimes, and that even -- 

CUESTICNi Serious or violent?
HE. KLEIN; Well, serious —  they didn’t use

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1 the word "serious. " Vhat they said ir. Fereau versus 
State is that if there were certain crimes of lesser 

degree, felcr.i‘=-s of lesser degree -- they talk in terms 
of felonies, tut if there were certain felonies cf 

lesser degree, then there may le some Question.
Put I want tc emphasize that the state cevrts 

have always interpreted this statute tc apply to what I 

would classify as the more serious cateccry.
CUES’TICi'i Pc you draw a distinction between 

serious and violent?
PP. KLEIfi Veil, my distinction cf sericus is 

that it is serious, as I indicated, because tie 
legislature said it is sericus. Violent crimes are 
these such as burolary in the first degree which have a 

great potentiality for violence-. '̂ cu may have a 
burglary that may not in fact involve violc^nce. It may 

on the ether hand involve violence.
For example, in the case here, the officer, 

when he arrived cn the scene, didn’t know what was going 
on inside. There may have been some victims laying cn_ 

th<̂  floor.
OnEFTIONf Suppose this house or building, 

instead cf being a private residence, had been a 

deserted building in a field somewhere. fcould the 
officer still have had the right under Tennessee law to

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shoot 3 P‘3 rscn fleeino from scan® viho apparent]y had

broken intcit?
hF. KLEIN’; I can’t say that a dwellinc in a 

deserted field vould be burglary under the Tennessee 
statute. At b-st it would be burolary in the third 

deoree , which carries a lesser penalty.
CUEETION’; Of course, your Eerrphis policy 

would cover burglary ir the third degree.
KLEIN; Kemphis policy would cover 

burglary in the third degree, tut again, the point of 
this is that burglary in and of itself, and again, that 

is what we had in this case that is before us today, 
burglary is a serious cff^-nse with a great potentiality 

for V io1en c® .
And even though it may not have teen a violent 

act that was ccrmitte-̂ . in the example that "̂ our "'̂ nor 
gave with regard to a dwelling house in a deserted 
field, the idea that an individual who will break and 

enter is the type of individual that has a great 
propensity or likelihood for violence, whether it he 

it may net be a^ that time, hut it may be in the 
apprehension of that individual, and it is by the nature 

of the crime, the nature of the person that perpetrates 
such a crime that it is our position that therein lies 

the great potentiality for violence.
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1 QUESTION; Kr. Klein, may T ask you a question 

about what we Tiean by the terir "deadly force?""'Pc we 

irean that the officer can deliberately shoot to kill the 

indivi dual?
KF. KLEIN: Veil, deadly force rreans usinn

that fcrce, whether it be -- usually in the context w<̂- 

think of it it would be a cistcl, a firearff,
CUFSTICi. ; And it also' ir.eans, I take it, that 

he iray deliberately shoot to kill.
KIEIK; Veil, When you say deliberately. 

Your Honor, yes.
QUESTIC-'; Cr doesn’t it rrear that? I an ;ust 

tryinn to understand.
YE. KlEINj les, wher he pulls his weapon, 

that is what he is intending to do.
QUES'I'IGri Sc it is really more than 

apprehending hiir; then.
YE. KLEIKi Ic, it is apprehending hiir. Ibat 

is the purpose. It is the atteir.pt to apprehend, and 
that is the last resort. That is the last thing he car. 

do. If it not that, the perpetrator is gone, and free 
to coiririt a felony on another day or down the read.

If Your Honor please, I would like to reserve

my time.
CUEETION; hr. Klein, let me ask you ere

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1 question if I may. In your introduction tc your 

arquir.sr.t in ycur brief / you say that the Tennessee 
courts have interpreted the statute to allcv the use of 
force that may result in death if the officer reasonably 

believes that the perscr. has ccmmittec a felony, he 

notifies the person that h« intends tc arrest hit, and 

he reasonably believes that no means less than such 

force will permit the escape.
Kow, I would read ^hat as indicating that if 

the officer thinks that by shooting tc vcund the person 

and he can prevent the escape, that he is cbligated to 

do tha t .
MF. Kini-i Aell, that is true, but tc be 

candid with Ycur licncr, the police pclicy has bee- tc 

shoot for the mast. The reason --
CUFTTIO'J; Shoot for the what? 
hR. YIFI’.': The mast, which is —  and the

reason for that is that it is obvious that one who uses 
a pistol cannot be as accurate as, say, a marksman with 
a rifle because of the circumst ance s, the fact that he 
may be running or he stops, and the faot that a pistol 

is just not an accurate weapon.
GUFSTIONi VJhat you are talking about really 

is a shot tha* has a potential for killing. It i'- rot a 

shot intended to kill.
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1 f*F. KLEIN; That’s correct/ sir. No cnj- can

2 arcue that once you use a firearn, there is always the

3 potential for killing, and it is not that the officer is
4 intending to kill. He is intending to apprehend cr

5 attexpring to apprehend, and that is the only rears he

6 has left to do it.
7 CHIEF JUETICF EUFGEP; . Attorney General.

8 CPAL ARGUY ENT OF W.J. YICHAEL CCCY, ESC.,
9 CN BEHALF CF AFFELLANTS IN 83-1035

10 YE. CCT-Y ; Yr. Chief Justice, and may i'­

ll please the Court, in considering the constitutionality

12 of the statut-' here, I believe that there are two

13 overriding questions fcr the Court.
14 First, was the Court of Appeals correct in

15 rejecting the common law rule end establishina as a
16 federal constitutional mandate that deadly force may
17 only be us<=d when the officer has probable cause to

18 believe a violent as distinguished from a ncnviclert

19 crime has beer, committed.
20 And secondly, is a federal court under cur

21 system of federalism the appropriate >'Ody to make this
22 ethical and moral public policy decision, or is it mere

23 appropriately left to the state legislature as the

24 elected representatives of the people?
25 And we submit that the answers to these

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1 questions will turn cn an urderstcndinq and a 
reccanition of the state’s substantial interest^ir, being 

able tc apprehend serious crin-inals and preserve tte 

public safety.
It is the pcsitian of the state that Serticn 

U0-'-106 of the Tennessee Code, which is generally an 

einbcdi IT'6nt of the ccnur'cn law rule as it has beer, 
construed over the years by the Tennessee fuprere Ccurt, 
is con stituticr.al as applied tc the facts ":his case, 

and as I have indicated, I think there are serious 

considerations before th® fcurt.
The ethical and the ircral judgr>.pnts of public 

policy that a society rust irake are judgn'cnts we believe 
better made in the state legislature than in the federal 

court, and the ability cf the statp tc effectively 
apprehend suspects that are fleeing frcr felcny crimes 
reflects a substantial interest on th= part cf the state 

and does not amount, as has teen suggested, to 

punishment of the suspect.
a.nd in balancing the interests in. this case, 

we are talking about that substantial state interest in 
apprehending criminal suspects measured aoainst *he 

right cf the criminal, who can lawfully submit tc arrest 
and possibly lose his liberty, because if he submits tc 

arrest, he may in all probability for a felcny gc today
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1 to jail, so he loses seine of his liberty arr̂  freedom, or 
to disregard the lawful order of the police arK̂ ’ risk the 

possible losing of his life if in the apprehension 
process the force that was used was deadly ferre.

These cuesticr.s, we believe, under the 

Fourteenth Amendment will allow this Court to recconize 

that the felcn should net hav- a riaht to unwarranted 
protecticn from apprehensicr which would jeopardize the 

public security in not beinc able to bring a crirical tc 

justic e.
It is the apprehension process that is 

necessary before any of the ether criminal justice 
procedures can come into play, and unless the state is 

able tc recegnize and to implement its substantial 

interest in arresting and apprehending felonies, then 

the state has lest for ever its ability to do that.
And the rule which wculd allow a flceirc felon 

to disregard the fact and to say that the police have nc 
threat cr nc abi^'ity tc use maximum force if necessary 
will encourage in property crimes or burglary crimes as 

we have here, will enreurage the criminal tc run each 

time.
If there is a person helping him who merely 

looks out for the police, all that has to be said is, 

here come the police, and they know that the police
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1 canrot use all necessary force to apprehend ther , and it 

beccmer basically a feet race.
The Ccurt cf Appeals drew the line in its 

settino up, w«: think, cf a constitutional mandate based

on a cdel renal Code rule which is at variance with at

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least half cf the state rules between viol^'nt and 
nonviolent felonies. ko believe that there are other 
indicators of the state’s substantial interest in 

apprehendina criminals ether than violence.
And if the Ccurt will allcw ne, I would like 

to leave --
CUrSTIQb’i hr. Cody, I guess some states have 

adopted a more restrictive provision than Tennessee has, 
and something mere along the lines cf the Penal Ccr̂ e, 

Model Penal Code.
MB. COPY i That is true.
CUBTTICN’i Has that creved tc be workable in

most states, do you know?
*'?. CCEYi I suspect that would depend uper. 

that legislature’s analysis cf how it has worked. he 

point that we have tried tc make in cur brief is that if 
a pclice department cr a city or a lecislature makes a 
rule which is more restrictive or like the Ccurt cf 

Appeals rule, then it is just that. Tt is a rule that 
the police department cr the legislature Iccking at the

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1 chp.nging cir cun stances may wish tc change again.

Put if this Court -- ""
CUFSTIOMi Well, I understand, tut I thcrcht 

ycu were arguing that any ircre restrictive standard 

would te unwcrKable, ard sc I was curious.
hR . CODY; Well, I have no infornation, hut T 

believe that it would be ur.wcrkable if the officer is 
put to the task of trying to nak-e this probable cause 

analysis when he arrives at an arrest scene.
CUESTTOY; Certainly the fact that other 

states have a different rule would indicate that it 

works.
YE. CCDY; That it has worked for those 

states, or that they have chosen tc let sone fleeing 
felons escape rather than jeopardize their life, but we 

contend that that is a policy decision for the 

legislature tc make.
CEESTICNj Would ycu take the same position 

with respect to a fleeing felon whose felcny is an 

antitrust vichation?
(General laughter.)
KE. CCDY: If the Court please, that makes a

difficult question, but I think that T would have to 

answer that if there was a state antitrust statute that 
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th£ state’s substantial interest felt that that was a 
serious crin>e, then they cculd authcrire d e adly" f c r c e.

The situation never arises because they can 

identity that person, and ycu dcr't ever aet to the last 

rescrt .
CUFTTION; May I ask one other questicn, just 

briefly? In measurinc the state policy at stake, dc you 

agree with hr. Klein that there is nc legislsative 
deternination of the aiprcpriate punishment for fleeing 

in these circumstances?
KE. CCDYj I think that is ccirect.
CUEETIONs General, I was going tc ask ycu a 

gu<^sticn somewhat similar tc Justice Elackm.un’s. The 
Court cf Appeals stated that the question in this case 
was whether under state law a rcnviclent fleeing felcn, 

unarmed, could he shot by the pclic<=> to prevent his 

escape .
I am interested in whether or not ycu think 

the Supreme Court Tennessee would apply its statute 

to an unarmed, nonviolent fleeing felon.
KE . CODY: If th- Court please, the Tennessee

Supreme Court in the only case that directly seemed to 
refer tc this had a property crime, the stealing cf a 

small amount of merchandise, and the court in that case 
said that we would not extend the privilege to that

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case.
It is difficult, however, tc see vhetT'er it 

was because there were ether means of a pp reher.si or. or 

not. I think that the Tennessee Supreme Court would of 
necessity, based upon some reasonable interrretatier , 

make the crime one that had enough seriousness tc it to 

reflect a substantial state interest.
CUFFTIOVi You do not draw the line with 

respect tc violent and nonviolent crimes?
YP. . COPY: No, I do not. I think that is the

error in the Court of Appeals.
CKIPF JUFTICE PUFGFPi hr. '■‘Unter?

OFAI AEGITVEK':' CF FIEVEK L. WIMFP, EEC./
C!' PFPAIF CF AFFELIEES IN 63- 1035 

ANT PFSPON’PFNT'' IN 63-1070

hp . KINTEP; Chief Justice, and may it please 
the Court, I would like tc start by tryino tc address 

some of the questions. In answer tc Justice Stevens' 
question, the maximum penalty for fleeing from an 
officer under the ^'emphis Code is a ?50 fine, and that 

is —  the citation for that is Footnote 31 of our 

brief.
In reference tc the Question about the 

workability of the standard adopted by the Court of 
Appeals asked by Justices C'Connor and Elackmun and

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1 Justice Fowell, we would point cut that net only ,-̂c the 

majority of the states apply a rule consonant with the 

rule adopted hy the Court ct Appeals, tut the 
overwhelminp majority of municipal police departments in 

this country, somethinp at the rate of 75 percent, apply 

a rule similar to that adopted ty the Court of Appeals.
The experience under these statutes and under 

these municipal policies has teen investigated. I vculd 

point the Court to the amicus brief filed by the various 
police erganiratiers in over 3C individual police 
deoartments in this country, from common law and 
non-common law states alike, in support of our position 

in thi s Co urt.
They recount the studies that have been done 

in these jurisdictions. Arrest rates do not go down. 

Crime rates do not go up. The only thing that is 
affected by a more restrictive deadly force policy, is 

the rate of officer safety, and the rate of officer 
safety improves under these more restrictive policies.

CUETTIONi What if after the event it 

developed there were two dead bodies in the house and a 
third person who was seriously wounded but alive who 
later identified the fleeing felon as the person who had 

done the killing and the wounding? What would he your 

view?
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1 MR. wINTEPi I think the Chiff Justice*? 

questicn points cut cne of the t r ch le ir s • w i t h rv' 

opponent's position. Thst is, cftc-n times there are 
other means cf apprehension short of kill inc the fleeinc 

felon, eye witness identification, evidence on th= 

scene. Tn this particular case --
CUFSTICk'; before you aet tc the eye wi*ress, 

ycu have to apprehend the individual, dcn't you?
h^. k'lN’TFFi If the officer can, certainly. 
CUESTIC*': It he isn't apprehended, the eye

witness is net much help.
hB. WlkTEF.i Well, if the eye wi-*-ness car 

identify him, then the witness is cf a lot of 
assistance. In this particular case, th= officer, when 

he ordered Garner to halt, and Garner did halt, the 

officer was a hie tc see Garner. '*ow, it is possi''‘le 
that he would have teen ah 1e tc make an idertificatrer 

after the fact.
CUEETICh; Well, cc ycu think the officer was 

able to know whether there were or were net some dead 

bodies in the house?
yp. WINTERf Fo, tut the officer had rc re escn 

to believe that there were any dead bodies in the house, 
and I think that is a critical point, because one of the 

major differences between our position and the position
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1 of the city and the state is that they viculd preirise the
2 richt CO kill of a police officer on vihat the officer

3 does not know.
4 Pet this Ccurt has held, and I air thinking of

5 Your Honor's opinion for the Ccurt in Frown versus.
6 Texas, that the Fourth Airendirent requires pclice actions

7 tc be governed by what the officer decs knew, specific

8 objective faces indicating society's legitimate

9 interests that require a seirure of the particular

10 individual.
11 The Feurth ?nendnert answers that question for

12 us, bacause it requires that specific cbjectivp
13 knowledge ôn the part of a police officer before he

14 acts.
lg Now, Justice Fovell asked about the nature of

16 the crime and the punishment for firs* degree burglary
17 in Tennessee. We would point cut that the Ccur.t cuaht

18 to be clear about the nature of the underlying crime in

19 this case.
20 First of all, if Garner had been, auilty of

21 first degree burglary, the punishment wculd have beer a

22 maximum of If years. This first degree burglary statute
23 is the equivalent of the third degree burglary statute

24 in South Dakota that the Ccurt discussed in Solon versus

25 Helm. It defines the exact same crime, with the
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selfsaire punisrhinent cf 15 yearr.
It is not a first decree burglary sta'^ute like 

many other states such as ''’ew York that define first 
decree burglary as a 1 ife~erdangering burglary vh-ie the 

burglar may be armed or where harm results to a victim.
Sc, althcugh it is first degree as a matter cf 

Tennessee lav, this is not the first degree crime 
defined by many of the states, and is equivalent tc th<= 

third decree burglary that this Court has already 

addressed in 5clon.
I would pcin* out that the Ccurt in Sclcr 

Versus Helm recognized what is in fact the case, *hat 
this kind cf third degree burglary is a nonviolent 
crime. It is a property crime, a rrcp^rty cri-e listed 

under crimes against prcp-rty in the Tennessee co'̂ e. 

Numerous state courts have observed what this Ccurt 
observed in Solon, that burglary is not a violent . 

crime.
I am thinking of the Lewis case in Florida, 

cited in our brief, as well as the Brown case from 

Alaska, and this is cited in the city's reply brief. Ir 
Frown the Alaska Supreme Ccurt held that burglary was a 
serious crime against property, but net per se a violent 

crime.
QUESTION: hr. Winter, how old was this

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vietim ?
J'F. WiriEP; Tht victim vas 15 years cli. Your 

Kcr.cr, ard the Tirtrict Ccurt found at two places, and I 

refer to .11C in the Appendix and the petition for 
certiorari at A5, Fcctnot- 5, that the officer 
reasonatly believed that -grner was a juvenile. ''"he 
officer misjudged by two years. Pe thought Garner was 

17, possibly 18 years old.
Under Tennessee law, he could net have been 

prosecuted for burplary. -ased on the actual facts, at 

15 he absolutely could not have been prosecuted as a 
felon. He would only have been assigned to th® juvenile 
courts, and perhaps adjudged delinquent, which is an 

expressly noncrininal status under Tennessee law, and 
ever, under what the officer reasonatly believed, that he 

was 17, in was liKely that he would not be transferred 
to the adult courts under the statutes in <=-ffec* ir 
1 9 7 4 , but would have similarly teen assigned only to the 

juvenile courts.
CUFSTICN: If in fact there were two dead

bodies, and he was identified as the killer, what would 

have been the maxiiruir penalty?
KF. WINTER; If he had committed murder, then 

he could have been treated as an adult at that time, but 

the Tennessee statute, which is 37-234, specifically
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1 provides that juveniles less than If at that time couls 

or.Ij he hound ever for violent crimes, and it 
specifically excluded hurolary as one of those crimes 
fer which a 15-year-old could he hound over to the adult 

courts.
So, the answer to Your Honor’s question, he 

could have teen treated as an adult fer itiorder, hut rot 

for the burclary that he in fact committed.
CUfSTICH: ’'r. -inter, this was an acticr for

damaces, was it not?
Id3. WINTER; Ccrrec* .
CUESTICN; And the state asserted the statute 

a defense. As I read tne Court cf App^cls cpinicr, 

it declares the statute perhaps facially invalid. Is 

that ycur reading cf it, too?
■YP. W INTER i 1 am not cuit= certain. Your 

Honor. I understand the operative language car. he feund 

at A4U o-p the Appendix, where the court at the outset of 
its analysis states, "The narrow question present-d is 
whether a state law authorizing the killing cf an 

unarmed, nonviolent fleeing felon by police in order to 
prevent escape con s ti't u tes an unreasonable seizure cf 

the pe r son ."
QUESTION; That doesn’t strike me as a very 

happy phrasing of any question. I had never known
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1 before that a law could constitute an unreasonable

2 sei2ur £.
3 KF. VINTIF,: There = re Fccblems with th^

4 court's forifulation/ T would anree/ but I think t,.e

5 essential import of what the court was saying is clear,

6 and that is that as applied to these facts, certainly,
7 where she officer restified that he kn.t-w the juvenile to
8 be tnartred, that the shooting under these cir cur st an ces

9 is unccnstituticnal.
10 QUESTICV : You w^uid agree, then, that i-̂ the

11 Court cf Appeals opinion goes any further than to say
12 that on these facts, the Tennessee defense statute can't

13 be applied, the Court cf Appeals is wrong.
14 VR. WIVTFF: I would say that this Court need

15 pc no further than to affirm the judgment below cn these

16 f a c ts .
17 CU-CTIGi: .• Cc we ar“=̂ talking about an as

18 applied basis, not an cn its face basis.
1 9 wp. wINTFFi Th-= other aspect I wanted -- the

20 Court should also be clear about the facts that my
21 oppenents neglected tc menticn. That is that the
22 District Court in an explicit finding, which is else

23 fcur.d at Aa in the Appendix, that when Hyman, the
24 officer, stopped 15~year~cld Garner, "Garner did not

25 appear to be armed," and this finding was based cn
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sutstantial reccri tesiror. y.
The officer testified repeatedly that^ he had 

no ini icaticr. that Garter was arired, that he was 
r e a so natly sure that Garner was ur.arired/ and finally / on 
direct testirrcny, when asked, did you know positively 

whether cr ret he was armed, h«̂ answered, I assured that 

he was net .
In cur view, this case presents really three 

issues fer the Court to determine. There is a 
constitutionality of the state statute and th.̂  municipal 

policy as applied tc this case, given the facts, a 

nonviolent, nendangerous fleeing property crime 

suspec* .
Ther^ is the cuesticn of the constituticnalimy 

Qe- ths city's policies and customs that encourage, in 
fact, enccurage and insulate the use cf excessive fcrce 

wher? officers do not exhaust reasonable alternatives.
And finally, the cuesticn cf whether the 

I'-̂ rphis policy is in violation of the fourteenth 

Amendment because it is racially discriminatory.
Cur position before this Court on the first 

issue, that is, the constitutionality of the statute, is 

that the Court cf Appeals is clearly ccrrect that a 
statute is only narrowly drawn to express a legitiir.ate 
state interest at stake, and is only carefully tailored

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tc its underlying justification if it fermits ■‘•he 

shooting when safety interests are at stake.
.And the Court ought tc he clear about what is 

involved. This is not a case about shcctinc tc vici'nd cr 

a case about arFrehensicn at all. The heragbis policy is 

not to shoot tc wound. It is explicitly rot so. It i.s 

a policy of sheeting tc kill.
CUH'̂ TICh'i Vhen ycu say the ''emphis policy, I- 

had read the Court o-f= Appeals cpiricn tc d-al only with 

the Tennessee statute.
yp. WINITn: ■ That is correc-‘-. , Your Honor. We 

raised in both of the ccurts below the cuesticn, ti-e 

narrower question cf the "emphis policy, and that is a 
question that I think the Court could rule on witheut 

reaching the statute.
CUIC'̂ IC.;; tut the Court of Appeals ^idr't 

passorit.
.YP . HINT'?: The Court of Appeals did.net, hut

the factual basis was before the Court of Appeals. In a 
prior case in wiley versus Yeiriphis police department, 

the District Court irade a finding of fact that ’'eir.jhis 
officars are ■‘■auoht to shoot tc kill whenever they 

sheet.
The testimony was based on —  this was based 

on testimony that Memphis arms its officers with dum-dum
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2 mast, where viscera are irore likely to be hit,'^nd death

3 more likely tc ensue, and the officers understand their

4 training to be to shoot tc kill.
5 Officer Hymar, whe fired in this case, sc

6 testified, that he fired as he was taught, at the terse,
7 and he shot to kill. The police director 's testi-cny,

8 Director Hubbard, is found at Tags 1,ECC of the record.

9 It makes very clear that there is no shoot tc wound

10 policy in ''emphis.
11 Pe says, "Our o:^ficers simply have to be

12 trained sc that if the use of a firearm is justified at
13 all, then the full con secruc nre s have to be accepted.
14 The likelihood of killing someone in that process is

15 very high. You simply have to. It takes a shoot to

16 kill policy. lust a shoot tc wound policy is

17 imp rac tical. '*
18 So, this, we submit, is precisely the shoot tc

19 kill policy identify by the Chief Justice in his Fivens
20 dissent, and recently discussed by the dissenters i r. Los

21 Angeles versus Lyons.
22 CULTTIO!,; Hew dc you think the Court of

23 Appeals formulated the standard as to when you can shoot

24 to kill?
25 MB. WINTEBi The Court of Appeals —

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1 QUESTION : Or did it? Or did it? Did it?
VINTtt^i It forTulated ircre than'^ne

standard, I ar afraid.
QU'^STlCNi Yes, I thcught sc. T wondere-d 

which cne ycu thought was correct, if either cne is.
YF. WINT^Fi Well, the cr.e that we wculd rtce 

cn this Court is, I think,, test stated at Page If1 cf 
the Appendix. The Cour t of Appeals says the cclice can 

only shoot, and we are talkinc about shooting to k_j.1, 

when the suspect pcses a threat to the safety cf the 
officers cr a danger to the community if left at large.

We subrit that this is --
CU'^ETICN ; Di-̂  you say "cr” cr "and?"
Up. Or a danger to th= ccirirur.ity if

at large. We subirit that this is the clear rile.

It is rational. It is prcporticned to the state’s 
underlying interest and ur.cerlyinn justifications. An. 

it is workable for the police cn the beat. Indeed, we 
would subinit it is more workable than the ccrnmcn law 

rule.
QUZETION; How would ycu ever know that 

alt ern ative or ?
XB. WINTEFi I take it that the police office: 

would irake this decision —  wc- would apply this -- we 
would suggest that the standard to be applied is the

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1 Standard enunciated by the Chief Justice for the Court 
in United States versus Ccrtez, that what a rea-Scrably 

prudent officer exercisino his prcfessicnal judgrrert 

based or his -^raining would conclude under all 

circum stance s.
Tf, for —  the city in its --
CUF'̂ ’TIC''; In this particular case, I suppose 

you would just have to conclude that that other, t^at 

alternative could just revet have teen satisfied.
KR . V’IVTEP; In this case -- I think this

case - -
CUEPTION: Cr in ircst cases. khat you would

really have to say is that the officer would ‘’ave to 
know or reasonably believe that the rr=n or lady va s a 

dancer to the ccir.nunity.
KF,. Wlh’TE ̂ .• That's right. Tf he were atT ed , 

for exairple. If the next-door neiohtcr --
CUFSTIO^’w Vculd being armed be enough to 

satisfy the alternative?
KP . WINTEEi Certainly if the suspect, when 

told to halt, the officer was -- police officer refused 

to throw down his weapon --
QUESTION: Kcw would you know whether he was

a rmed ?
«F. WINTEF: If the officer knows that he is

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a rirea
CUFS'TION; So •ĉf̂ officer h?.c to know'that the

cerson -- if he is armed but ^he officer doesn’t knew 

it, the officer can't shoot.
yR. VINTER; If in fact the person is armed 

but he never reaches for his weapon, T don't see where 
the state interest in shooting to apprehend --

QUESTICNi A person cam be armed and can be 

not reaching for his weapon one minut‘d, and 1“̂ seconds 

later he can ’̂e reaching for his weapon.
'•p. y INTER; When he reaches, I think the 

officer is obviously entitled to and shoul'^ shoot. 
CUESTICN; And not until then? 
hF. VINTER; Not until then.
rUFS"'IC' ; I surpese if Ycu have a warrant to 

arrest someone w hO’ is known to be dannerous, and ycu 
encounter him, and he runs, what about that?

hP. WINTER: 1 think that may well be a case.

For example, thinking cf a year or so ago, the tax 
evader in South Dakota, Gordon Kalb, whe shot two FRT 

agents. The FFI were moving in to arrest him, and he 
started to run. I think he was a dangerous individual. 

The police may be justified in shooting in that 

circum s tance .
It depends on all the circumstances, and what

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1 a reascnatly prudent officer world dc kr.cwirg wl.at he 
kncwr. If the voirian r.ext door who ha d■ ca 11 ed'1 r. the 

burglary had sail, I heard screams next door, I think 
the officer might well have probable cause to believe 

that the fleeing suspect is dangerous.
Cl-FSTICNi k culd ycu think that a burglar vhc 

enters th=- hoiiies or residences of pecple at r.iohttiire is 

a danger tc the ccnirunity?
V̂ IN’TE^i It seems so intuitively. Your 

Pcncr, but I think that ir is net borne out, as this 
Court has recocnized in Folon and as ether courts have 
recccnized. The statistics we have marshalled in cur 

brief are very, very clear and convincingi percent
of all burglari€-s occur wh-̂ -r nobody is home. Cn]y f

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p 1 -rcent of all burclaries are armed with guns.
Burglaries result in confrontations bstweer th= burnlar 
and the victim only 2.S percen* of the time, and half cf 

those- never escalate beyond sheutinm.
ClETilCN; These statistics based upen pecpl':̂  

who are apprehended, aren't they?
’■IF. V’INTEF.i These statistics are based -- I

believe that is correct.
QUFSTIONi Of necessity. These who are ret 

apprehended, there is no basis for a statistic, is 

there?
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MF. wINTIFi Kell, there were several studies 

that were dene. I think it was one of them, th't Tcrcntc 

study, that is cited in our brief, was done by going 

threuah police records of all reported burolaries, an1 

not all arrests. fc I think it is ret —  and the 
studies are all generally ccrsister.t in th^-ir findings
cnthelcwcor. frentatienrate.

This is not surprising, because ■‘•hose studies' 

that have beer, done that have interviewed the burrlars 
have found that the cverwhelrirg cernrer dereminater cf 

all burglars is that they choose to burgle unoccupied

houses, and thus the --
CljFFTICNi Are you familiar with the 

statistics in !■'ew ierk Ci'̂ y?
h-F. blNTFFi No, I am net, Ycur Fcncr. 
CCIFTIOTi As to what p-rreer-taae of all 

crimes, including burglary, are ever a per c-hended" 
hP,. vibTFF; No, I dc no': know these;.. 
QUEFTIOV; It is somiCthing less than 15

percen t .
YE. WINTEF: I would point out. Your Honor,

that the statistics fer rates cf murders in residences 

and rates of rapes in residences are extraordinarily 

lew. Cnly 2.2 percent cf all murders occur in a 
residence. Cnly f.5 percent of all rapes occur in a

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residence tetveen strangers.
£c, the statistical crotatility cf JCrtice 

OTonncr’s hypothetical is very, very low, that sonetody 

may in fact have been harmed inside the building.
QUE'^TIChi What dc ycu suppose the hcmeovners 

feel atcut whether scmecnc- whc burglarizes homes as a 

danger tc the community?
hB. KINTEBi There is no doutt that burolary 

is be t h a serious crime and a frightening crim.e.
Indeed, the re-’̂son why burTlary is punished severely in 

our society is because all cf us feel the sanctity cf 
our home violated and all cf us are very frightened by 

the- prospect of a stranger ccm.ing in at niaht.
We have no cuarrel with burglary being treated 

as a serious crim<̂ ' under state law and lengthy 
punishments being imposed. The only question that we 
pose is wh ether t''e state's in'rerests in preventing 

escape because appreber.sicn is not wha* occurs are 
sufficiently substantial to justify the taking of life.

We submit that it is not, and that it is ret 

proportionate only unless the state's interests are 
implicated, and they are not with most burnlaries. Now, 
if the officer has some reasonatle objective basis in 

fact tc believe that this particular burglar is 
dangereus, that he is armed, or if he has infermatier

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1 that there wa3 a screar or a ahct inside, to use scire cf

2 the hy pcth etica Is frcn the city reply brief, I>hjnk.

3 that is a different case.
4 CUES’TIOK: ?c you would say violent crimes

5 then, would you say automatically this test that you

6 propose is satisfied?
7 hF.. kIMEF; Yes, T would --
8 CUFSTICNi If there is a prohahle cause to

9 believe that he has just ccrmitted a viclert crirr'?
10 ^5. V’IVTFF; In scst instances, I would say

11 yes.
12 CU FF":" TO»̂’: And that violent means violent —  a

13 dancer tc a p<=̂ rson , is that it, or
14 Mp . VI’’TEF: Correct. It could he dang-^rcus

15 to a police officer.
10 CUEFTICh; It doesn't mean that he just

17 happens to use violence tc break into a house.
18 MR. VINTFF.: No. I mean. Garner broke a
1 g win do w to get into the house. That world cert, ainli i.o.

20 give the officer probable cause tc believe he would

21 assault an individual.
22 CUFFTIO'I: Vhat about someone thought tc be

23 guilty cf espionage cr treason? Obviously, this wculd

24 affect federal statutes if you are correct.
25 ME. WIliTFF; I must confess tc having net

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1 thought about that. Tha policy of tha FBI as I 
understand it would net be tc sheet such peepl^. The 

FBI policy is ere cf crly shooting in defense cf life. 
Perhaps the state interest would be substantial encuah. 

Under the rule than we are sugcestinc, it would rot 

apply.
Justice Vhite asked about alternative readir.es 

of the Court of Appeals holding. I take it that the 

citation of the Court cf Appeals to the ’̂odel Penal Co':’e 

suggests that it might have had in mind a rule slightly 

different than what we are prepcsina here today.
CUFFTTCh : Yours would not make an exception

because treason and espionage are not crimes of 

V io len c e ?
yp. wlh’TrF; Correct. Unless it was a ciirn̂

of sabotage.
CUFFTICKi Yes.
hE. ;'I>TEF: Pc, under the Kcdel Penal Cede

rule, I take it that the distinction drawn, and we think 
it is a less satisfactory rule, the distinction drawn is 

one based on the gravity cf the crime. And basically it 
is violence also. If it is a dangerous crime and for 
violent crime the gravity of the crime is sufficient to 

justify use of deadly force.
The state and the city attack that position on

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th-7 grounds that it is too difficult to draw thos? kind 
of lines and l<.-gislatures ?;hould. I take it tfilit this 
Ccuir has already addressed an analogous ouesticr. jn the 

Eighth Amendment context in the Solon case. And m  
Solon, the Court identified three objective factors that 

are capatle of judicial application to ascertain the 

gravity of a crime.
The Court identified whether the crime is 

violent or nonviolent, secondly, the magnitude of the 
offense, and third,.the culpability of the offender. ?y 
each of these criterion, the crime involved in this case

falls on the less grave side.
Certainly this was a nonviolent crime. And as

we hav<̂  demonstrated , burclary is inh«=rently a 

nonviolent crime.
CUESTTCN’i '̂ hat brings me hack tc scire cf yc u r 

responses, an-" I will repeat anain the ouesticr., what if 
in fact there were two or three dead bodies in there who 

had heen stabbed tc death? Would you hav'r a Ccse.
"iR. Vilh’TEFj Ve would have certainly a mere 

difficult case, bum I think the case has to turn cr what 

the officer knows.
QUESTION; Do you just think it would be mere

dif fic ult?
JIR. WINTER; I think it has to turn on what

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1 the officer knows. The officer can’t justify shooting

2 after the fact.
3 QU EFT 10'; ; Few can the officer conceivably

4 know one way or the other whether there are or whether

5 there are not scir.e dead bodies insid“ the house?
6 hE. WINTFEi He nicht well. This officer

7 testified -- the facts of the case are, when the officer

3 arrived on the scene, he went along the side of the
9 west side of the house to the tack yard, which was where

10 he found young 1f-year~old Garner.
11 While he was walking along the side of the

12 house-, he had occasion to look into the house. He saw
13 the bedroom th-̂ t had been ransecked, although I am net

14 sure if he saw it had beer ransacked a* that point, tut
15 he looked into the house. When he go* to the tack yard,

le" he saw that a window had been broken into. He saw the

17 garbag'= can.
18 He might have reason to know that scirethinc

19 more had occurred if i’- hâ '. The neighbor might have

20 reported, instead cf hearing glass breaking, that she
21 heard screams. Any of these wculd have constituted

22 probable cause.
23 CUEfTICNi Put you think ycu wculd just have a

24 more difficult case if there were some dead bodies,

25 people stabbed tc death in the house?
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KR. KINTFE: If the officer -- the officer’s

action has tc he based on vihat he Kncwsor h a s r c  t a bl e 

cause tc believe, and not cn what is found out after the 

fact. Just as if the officer thought that Garrer was 
arned, if he saw a shiny object, it would have ’̂eer. 
reasonable fcr him tc shoot, even though it turned out 

after the fact that the shiny object wasn't a gur.
It s‘=enis to re that the rule cuts bcth ways. 

rui'̂ 'TIChi Have ycu thought about -- I suppose 

in carrying the case ycu rust have thought about it -- 

suppose the police want tc stcr a car, and they walk 
alone side of it and flash, a red light, and he takes off 

at high speed, and they chase him.
MR. WINTER: Can they shoot the tires?

CEFETIO" ; Certainly armed with a car.

MR. WINTER; Ye.s.
CFFFTIC::; Can they shoot?
MR. VINTFr; ho, but fcr a different reason. 

Your Hcncr. The two constants of almcst every police 
sheeting policy are not to shoot at cars that are 

moving , and not to fire warning shots.
QUESTION: That may be —
KR. WINTER: And there is a good reason,

because the people who get hit are almost
QUESTIONi That may be so, but would it be

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unconstitutional under your rule?
Kp, . V-'TKTZ’'; If the people ir-the car^v^re

arn'ed and dancercu?/ I think rc.
CUEPTICKi V<;11, they are being quite a darger 

tc the ccir, mu nit y hy drivinc up and down the street at ?C 

miles an hcur.
h F.. VINIF.?: It se-^ms to me that the better

alternative vculd he tc get on the radic and call ether 

cars and head the- eff . I would note that the policy in 

Memphis is that people who are driving under the 
influence/ wh.c are quite dangercus/ even though it i sn t 

a felony --
QUESflCt.- Yes, they don't shoot them.

JF. V’lhTFP: -- get shot. They may well he

suhstantially more danaerous than people like 

1 5-y‘=-a r-old Garner.
QUFPTICN.* hr. ’̂intcr, the "’enn-ssce law dees 

require some kind of a warring by the offioer to *he 

su s pec t ?
KP,. WIN’TFP: Yes, and I take it "Halt, police"

is sufficient. T mean, the officer neither here nor in 

many other cas^s said "Stop or I'll sheet." Garner had 

no specific warning from the officer.
QUESTION; But was told to stop by an officer 

in uniform. Is there any validity tc the concept that a
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ptrson/ a suspect in those circumstances is givinc u? 
certair rights ty refusinc tc heed a warnino cf^that 

kind hy an officer in rnifcrm?
KR. WINTER: Well, I start from the premise

that the suspect should stop, hut whether he is waiving 

his con stitutional rights it seems to me is hard to 

say. I mean, I would point cut that we ar= talking 
about a IR-year-cld who the last time he broke "into a 
neighbor's house had teen turned in tc the police ty his 

own father. ’-'c was probably more scared of being cauoht 

and being turned over tc his father than of the 

policen.an's bullet.
nlsc, on th- nioht of his death, 15-year-ol^ 

Garner had had a Leer and -as somewhat intoxicated, 

acccr-’inc tc the medical examiner. It is hard tc 
imacine a knowing and voluntary waiver under '■hes-- 

circum stances.
QUFETION; Rut we are not talkinc just about 

-- at least your arcument isn't premised just on the 
fact that this particular plaintiff war If years old, 

perceived tc be 17 years old. I mean, if you are 
talkino about giving up some rights when you refuse to 

heed, you are equally talking about a ccld sober 

U5-yea r-old.
KF. WINTi^F: That's correct.

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1 CUEFTICN; Is that right'’ I am just trying tc 

think it thrcugh. Are ve ttinkina atcut the statute as 

applied to the- facts o-̂  this case, or is applied tc 

hypetheticals in heth directions?
hF. WINTHPi The rule that we would suogest as 

applied tc the case that Justice Fehneuist has 
hypethesized, I think, is that we would sugeest tha* 

there is no waiver, but Ycur Hcncr is quite correct. On 
the facts of this case as the officer knew them, to was 

dealina with a juvenile who, as this Court has 
reccqnized in tdeings versus Gklahcira and Vellcti versus 

Earrett, is less capable O'^ being responsible, is less 
capable cf thinking of the consequences c-f̂ his or her 

actions, who also is acting impulsively, and is less 
capable cf conforming his or her actions to the lew, all 
things that this Ccurt discussed in the Zddinos ccirior. 
and in the prior opinion In Velctti. The officer knew 

that.
CUESTICN; All I was suggesting is, if ve 

measure the police officer’s ccrduct as applied in this 

case, should we not also analyze *he waiver issue as 
applied, or do we have one rule for one situation and 

ancthe i for --
KB. WINTEFi Certainly, and at least as the 

officer knew it to be, which was that he was dealing
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1 with a juvenile. I miaht ccint out that under th*̂  -- 
CUES'TIC'’i Veil, QC you think that i'f'really 

is unreasonable under the Fourth Amendment for an 
officer who would tell an exrerienced adult turolar, 

step or I ’ll shoot, yc v; think the i^curth Amendment 
prohibits that? ^cu think *h=’- there is no room there 

for saying that the person vhc refuses to heed that 
warning is knowingly giving up any right to have 

alternative action tak<=n?
hr. VIX’TFF; Ko, I don’t think that the Fourth 

Amendment should allow such a shooting. i think that 
unless the state interests recuire it because of the 
interests of prctectino the public, the Fourth. Amendment 

would 'bar- that shooting. '"he officer ray have other 

altern a tives.
He should run after him. He should call in 

assista nee. He should investigate the scene. It does 

not invariably follow that the person gets away and he 

will never be caught, although that may often be the 

cor seg uence.
kith regard to both the workability and the 

question of the shooting in this case, I would also 

point out that at least since 1976 Memphis has had a 
rule with regard to the shooting of juveniles that is 

precisely the rule that we urge in this Court. That is,
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1 under the ''emphiE policy, only juveniles who are 
dar.gercuE to life can he shct. That was not in’ effect 

in 197 U / hut it was adcpted —  well, I ina y be wrong on 

the date. Perhaps 1975.
With regard to the Tennesset statute and 

whether it only covers sericus crimes or ncnserious 

crimes, v.e vculd draw the Court’s attention tc Tage 
1,460 in the Court of Appeals record, which is 'a listing 

of every nonviolent prcperty crime suspect shot a* ty 

the Memphis police between 1969 and 1975.
This listinc was prepared by Captain Colleta 

cf the ''emphis Police repartment. It lists sheetings 
for such circumstances as a prcwl«=r who is stealine from 

a car let.
CUPSTTONi Ar-a you suggesting that in e-verv 

instance the particular policeman whe shet was acting in 

conformity with ths Tennessee law?
hr,. WIî TEF.; Well, we suggest thâ - in mary 

instances, wha'̂ .ever the Ttrnnessee law may be on the 
bccks, cr as the courts would construe them if it get 

th® cases, it is net the practice und=--r either the 
Tennessee law cr the Memphis policy tc restric* 
sheetings only to sericus and dangerous people.

QUESTION; That might be useful evidence in 

your attack on the Memphis practice. It is certainly net
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sta tut f .
!̂ F. VINTFE; No, Xut w» brir.o it to the 

Court's attention because the arguir.ent that the 
Tennessee statute is somehow sufficient to prevent these 

uncenstituticnaX sheetings and that the Court need net 

ruXe on the question we suggest is just not herr.c out hy 

the practice and the record ;
PeopXe who have steXen checks have been shot 

at by ’'eir.phis poXice. These are the petty the 
pickpockets and the petty thieves identified by the 
Chief Justice in Eivens which the repXy briefs say, no, 

n“ver happens in Tennessee.
CUEC''IC'-»j Nr. V’intc'r, before you sit down, 

you didn't get tc ycur third argument, and I ~ust or not 
cX«ar CP one factuaX matter, foes the record teXX us 
the race of the victim and the race c-̂ the officer in 

thiscase?
hF.. VINTFE: In this case, yes. Both wp re

bXack .
CUESTION; Both were Mask?
NE. VTNTFFi Both were black. Put X would 

point, Ycur Honor, to the testimony of the police 
director that he "had more problems with his black 

officers trying to out-re''neck his white officers."
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ALDERSON REPORTING COMPANY, INC.
20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300



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1 CHIFF JUSIICF BUF,GEE; Lc ycu have anythinc 

further, I'r. Klein? Ycu have six minutes remaininc.

ORAL ARGUYEKT CF HEKEY L. KLEIN, EEC./

ON EEHAIF CF TH^ FFTITICNFRE IN 83-1070 - REPU7IA1
YR. viEIKi In r'--*sponse to Justice C’Connor’s 

question earlier about whether or net ary stages have 

adepteP the Yo'̂ el Penal Co'̂ e and whether it proved 
satisfactory, it is cur understanding that both Idahe 

and New York had adopted The Yodel Penal Code, tut later 
Idaho has reverted hack to the corrmcn law, which is the 
sase as what Tennessee has, and that •■'ev York now has 

soirething in between which is referred to as a forcible 

f'^lcny statute.
With regard to the pcnal+y that would cciTie 

into play just for not stcppir.r, and that is true, that 

is —  and I think I have pointed that out earlier, that 
is just a fine, but we again want to emphasize-that

what is in progress is a burglary, and that is a 
continuius violation from the time that there is the 

breaking and entering which is known to the police 

officer through the attempt to apprehend.
CUESIICW; Yes, tut of course he wouldn't be 

shot just for the burglary. He is shot because he tried 

to escape.
YE. KLEIN: That is correct, but he is

Eu

ALDERSON REPORTING COMPANY, INC.
20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300



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escaping from a serious crime/ which is burglary.
CUISTIONi I un.-’erstand , hut it s till’ pu2 2 IS'S 

me that the legislature didn’t make that a serious crime 

as well, because 1 think that is a serious matter.
ME. KLEI>-; Well, of course, the point of all 

of this, and this gets tack to what states adopt what, 

really what may he good in Idaho may not he good in 
California, or vice versa, and that is cur argiiimert 
about these policy guesticns. Not only does it relate 
to the state and the legislature, but also to the city 

of Memphis. ,hnd that each state has to gauge wha+r its 

particular prchlem.s are and what policies it needs tc 
enforce, and that is our arcumc-rt with the fixth Circuit 

Court of Appeals.
rUECTIC;: ; Yes, hut "" would suppose you would 

agree that the state could not adopt a statute making it 
a capital offense tc flee in these circumstances.

ME. KlZINi That is correct. That would he --
CUESTIG->i Sc there are some limits or *he 

state’s power.
YE. YLEIKi ficht. regardless of what happens 

in the state, they are all subject tc certain minimal 
constitutional guarantees. We have tc work within that 

framework, and if a state gets out of bounds or out of 
whack, then they are subject tc those restrictions.

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ALDERSON REPORTING COMPANY, INC.
20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300



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I appreciate the hcnor of being able tc appear 

before the Court.
CKIIF JUSTICI BUFGEF.; 'I'hanV you, gentleren.

The case is submitted.
(i^hereupcn, at 11jC3 a.m., the case in the

above-entitled matter was submitted.)

ALDERSON REPORTING COMPANY, INC.
20 F ST., N.W., WASHINGTON, D.C. 20001 (202) 628-9300



CERTIFICATION

( Alderson Reporting Company, Inc., hereby certifies that the 
attached pages represents an accurate transcription of ^ 
electronic sound recording of the oral argument before the 

(. .jpreme Court of The Onited States in the Matter of:
#83-1035 - TENNESSEE, Appellant v. CLEAMTEE GARNER, ETC.. ET AL.; and 
#83-1070 - MEtj^HIS POLICE DEPARTMENT, ET AL. , Petitioners v. CLEAMTEE GARNER,

and that these attached pages constitutes the original 
transcript of the proceedings for the records of ̂ c o u r t .

(REPORTER)

( =

C