Garner v. Memphis Police Department Brief for Appellant

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH: CIRCUIT 

NO. 77-1089

CLEAMTEE GARNER, ET AI,,

Plaintiff~Appellant
VS.

MEMPHIS POLICE DEPARTMENT, ET AL,

Defendants-Appellees.

Appeal from the United States District Court for the 
Western'District of Tennessee 

Western Division

BRIEF FOR APPELLANT

WALTER L. BAILEY, JR.
BAILEY, HIGGS & BAILEY 
161 Jefferson Avenue 
Memphis, Tennessee 38103
AVON N. WILLIAMS, JR.
MAURICE E. FRANKLIN 
1414 Parkway Towers 
Nashville, Tennessee 37219
JACK GREENBERG 
JAMES M. NABRIT, III 
STEVE RALSTON
10 Columbus Circle, Suite 2030 
New York, New York 10019

Attorneys for Plaintiff-Appellant



INDEX
Page

Table , of Authorities.................................. ii - iv
Issues Presented for Review........... . ..............  1
Statement of the Case.............................. 2
Brief Statement of the Facts...................... .. . . 4
ARGUMENT

I. EDWARD EUGENE GARNER WAS DENIED HIS RIGHTS 
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE 
FOURTEENTH AMENDMENT TO THE UNITED STATES 
CONSTITUTION AND BY 42 U.S.C., SECTIONS 1981,
19 83, 1985^ 1986 AND 1988, BY THE ACTIONS OF 
THE APPELLEE, E. R. HYMQN, IN FATALLY WOUNDING 
EDWARD EUGENE GARNER INSTEAD OF EXHAUSTING ALL . 
OTHER REASONABLE MEANS OF APPREHENDING SAID 
EDWARD EUGENE GARNER.........................- 19

II. EDWARD EUGENE GARNER WAS DENIED HIS RIGHTS TO 
DUE PROCESS OF LAW GUARANTEED BY THE FOUR­
TEENTH AMENDMENT TO THE UNITED STATES CON­
STITUTION AND TO HIS RIGHTS GUARANTEED UNDER 
42 U.S.C., SECTIONS .1981, 1983, 1985, 1986,
AND 1988, BY THE APPHLLEES’ ACTIONS IN USING 
OR AUTHORIZING THE UE/E OF THE "HOLLOW-POINT" 
PROJECTILE OR BULLETl........................ 35

III. EDWARD EUGENE GARNER WAS DENIED HIS RIGHTS 
GUARANTEED BY THE DUE PROCESS CLAUSE OF THE 
FOURTEENTH AMENDMENT TO THE UNITED STATES 
CONSTITUTION AND HIS RIGHTS GUARANTEED UNDER 
42 U.S.C., SECTIONS 1981, 1983, 1985, 1986,
AND 1988, BY THE ACTIONS OF THE MEMPHIS POLICE 
DEPARTMENT, THE CITY OF MEMPHIS, TENNESSEE,
WYATT,. CHANDLER, MAYOR OF MEMPHIS, IN THEIR 
ACTIONS OF FAILING TO EXERCISE DUE CARE IN 
THE HIRING, TRAINING AND SUPERVISION OF E.
R. HYMON..................... ................  37

CONCLUSION............ ............................ ..... 39

i-



Table of Authorities

Bevins vs. Six Unknown Named Agents, 403 U.S.
388 (1971)................................. 4

Brazier vs. Cherry, 293 F.2d 401, 405-06 (5th
Cir. 1961)...... ..........................  27

Brooks vs. Moth, 242 F.Supp. 531 (W.D.S.C. 1965) 2.8
Brown vs. Mississippi, 297 U.S. 278, 285 (1936) 29
Clark vs. United States, 193 F.2d 294, 296 (5th

Cir. 1951)...................................  28
Common Wealth vs. Chermansky, 430 Pa. 170, 272
A2d 237, 240 (1968)...................    32

Cummingham vs. Ellington, 323 F.Supp. 1072,
1075 (W.D. Tenn. 1971)......................  22, 28

Jackson vs. Duke, 259 F.2d 3 (5th Cir. 1958)... 28
Jenkins vs. Averett, 242 F.2a 1228, 1232 (4th

Cir. 1970)... ...............................  28
Johnson vs. Glick, 41 F.2d 1028 (2nd Cir.) cert.

den. 414 U.S. 1033 (1973)............... .... . 37

Kenosha vs. Bruno, 412, U.S. 507 (1973)....... 4

Love vs. Bass, 145 Tenn. 522 (1921)...........  23
Monroe vs. Pape, 365 U.S. 167 (1961)..........  4 , 26, 27
Reneau vs. State, 70 Tenn. 720 (1879)...... ... 23, 31
Rochin vs. California, 342 U.S. 165 (1952)....  37

Rosenberg vs* Martin, 478 F.2d 520 (2nd Cir.) cert.
den. 414 U.S. 872 (1973) .................. 7~ 37

Scarbrough vs. State, 76 S.W.2d l06 (1934).... . 24
Screws vs. United States, 325 U.S. 91, 106 (1941) 28
Sol vs. Hutto, 304 F.Supp. 124 (E.D. La. 1969).. 29, 33
Story vs. State, 71 ALA. 329 (1882)............ 32

*
Stringer vs. Dilger, 313 F.2d 536 (10th Cir. 1963) 28

Cases: Page



Pages
Wilks vs. Colorado, 338 U.S. 25, 27 (1949)...
Yick Wo vs. Hopkins, 118 U.S. 356, 366 (1886) 
ARTICLES:

Aummel, The Right Of Law Enforcement Officers To 
Use Deadly Force To Effect An Arrest, 14 N.Y.T. F 
749 (196 8)7............... .........;.........; '

4 Black. Com. 178-80...... ...................
The Challenge Of Crime In A Free Society: A Report 
by the President's Commission on Law Enforcement 
and Administration of Justice. Task Force Reoort* 
Police p. 189 (1967).......... .............^__ _

Colo. Rev. Stat. Ann. Sec. 40-2-16 (1963)..________

~~(lbt40^ LaW ItS Adm^n:i-5trat:i-on* Page 82, n.3

Gremel, When Can A Policeman Use His Gan, 40 J 
? CRIM. LAW 756 (1950)........ ...............
3 Greenl. ev. 115...................

Greenstone, Liability Of Police Officers For Misuse 
Of Their Weapons, 16 CLEP. MAR. L. REV. 397, 400-

fell, Legal-Social Aspects Of Arrest Without A Warrant 
49 HARV. L. REV. 566 (1936)............. ......

3 Holdsworth, THE HISTORY OF ENGLISH
311-13 (4th Ed. 1935)... ..............

Illinois Ann. Stat. Ch. 38, Sec. 7-6 (Smith-Hurd)... 
Louisana Rev. Stat. 14:20(2)........... .........

McDonald, Use Of Force By Police To Effect Lawful 
Arrest, 9 CRIM. L.W. 435, 451-52 (1967)....___ .

fflooreland, The Use Of Force In Effecting Or Resisting 
Attest* 33 NEW. L. REV. 408 (19_54)__. .____^

K-Y.L. J. Opt. 3 1967, page 4.......... ..........

Stew York Penal Law Section 35.30 (1) (McKinnie, 1968)
fterkins, Criminal Law, 881, 910 (1957).........

^ g U ^ U ^ O)16 LaW 0f Arrest, 25 IOWA L. RED. 201, 279-

28
28

30
32

34
33

31

30
32

30

30

31 
33
33

30

30 .
34
33 
30

30

-iii-



PROCEEDINGS 180 (1930-31).......................
Prosser, Law Of Tort, Section 26 (2d Ed. 1955)__
1 Russ. Cr. 665-70...............................

Bohlen Schulman, Arrest With And Without A Warrant, 
75 U. CA. L. REV. 485, 494-504 (1926-27).......

Tsimbinos, The Justified Use Of Deadly Force, 4 
CRIM. L. DULL. 3, 15-20 (1968)................

. Wilgus, Arrest without a Warrant, 22 MICH. L. REV. 
541, 569 (1924).......... ....................

Note, Justification For The Use Of Force In Criminal 
Law, STAN- L. REV. 566, 577 (1961)_____ _______777

30
30
32

30

30

30

30

gage

Note, The Civil Liability Of Peace Officers For Woundinq 
Or Killing, 28 U. CINN- L. REV. 488 (1959).......  30

Note, The Use Of Deadly Force And The Protection Of 
Property Under The Model Penal Code, 59' COLUM. L.
REV. 1212, 1217-26 (1959)........... ............. 30

Note, The Appropriateness Of Deadly Force, 15 HOW. L.
J. 306, 311-13 (1969)................. ...........  30

Note, Legalized Murder Of A Flee Felon, 15 CA. L. REV. 30
STATUTES:
28 U.S.C. § 1331..........................
28 U.S.C. § 1343(3)..... .
42 U.S.C. § 1981..........................
42 U.S.C. § 1983................ . .........
42 U.S.C. § 1985................... .
42 U.S.C. § 1986....... ................
42 U.S.C. § 1988...... ....................
T.C.A. § 40-808............. ..............
T-C-A. Vol. 1, 1975 Commulative Supplement 

at 515................................

3 , 4

2 ,3 , 4

1 .2 .3 .1 9.20.3 5 .3 7

1 .2.3 .4 .1 9.2 0.35 .37

1 .2 .3.1 9.2 1.3 5 .3 7

1.2 .3.1 9.2 1.3 5 .3 7

1.2.3.19.22.27.35.37 
3,22,27,23

18



IN THE UNITED STATES COURT OF APPEALS. 
FOR THE SIXTH CIRCUIT 

NO. 77-1089

CLEAMTEE .GARNER, ET AL,
Plaintiff-Appellant

VS.
MEMPHIS POLICE DEPARTMENT, ET AL,

Defendants-Appellees-

Appeal from the United States District Court for the 
Western District of Tennessee 

Western Division

BRIEF FOR APPELLANT

Issues Presented for Review
1. Whether Edward Eugene Garner was denied his rights 

guaranteed by the due process clause of the Fourteenth Amendment 
to the United States Constitution and by 42 U.S.C.,.Sections 1981, 
1983, 1985, 1986 and 1988, by the actions of the appellee, E. R. 
Hymon, in fatally wounding Edward Eugene Garner instead of ex­
hausting all other reasonable means of apprehending said Edward 
Eugene Garner,

-1-



2. Whether Edward Eugene Garner was denied his rights to 
due process of law guaranteed by the Fourteenth Amendment. to
the United States Constitution and to his rights guaranteed under 
42 U.S.C,, Sections 1981, 1983, 1985, 1986 and 1988, by the de­
fendant's actions in using or authorizing the use of the "hollow 
point" projectile or bullet.

3. Whether Edward Eugene Garner was- denied his rights 
guaranteed by the due process clause of the Fourteenth Amend­
ment to the United States Constitution and his rights guaranteed 
under 42 U.S.C., Sections 1981, 1983, 1985, 1986 and 1988, by
the actions of the Memphis Police Department , the City of Memphis, 
Tennessee, Wyatt Chandler, Mayor of Memphis, in their actions 
of failing to exercise due care in the hiring, training and super­
vision of E. R. Hymon.

Statement Of The Case % --------- ■ " 1 1

This is an appeal from an Order of the United States 
District Court for the Western District of Tennessee, Western

j

Division, dismissing the plaintiff-appellant's case. Plaintiff- 
appellant appeals the entire Order of 29 September 1976 except 
for those portions in which the Court ruled that no cause of action 
could lie against the Memphis Police Department, or the City of 
Memphis under 42 U.S.C., Section 1983 and 28 U.S.C., Section 1343(3] 
since they were not "persons within the meaning of that statute.

This is a civil rights action filed in April, 1974, by 
Cleamtee Garner to recover for the shooting death of his son,
Edward Eugene Garner, on October 3, 1974. Named as defendants 
were the Memphis Police Department, City of Memphis, Tennessee;

-2-



Wystt Chandler, Mayor of Memphis.; J, w, H.ubhurd, Director of 
Police oj, Memphis; and E« R, Hymon, Police Officer of the Cfty 
of Memphis. Defendant, ITymon, was sued for having fired the 
shot that caused Garner's death; the other defendants were sued 
on the grounds that their failure to exercise due care in the 
hiring, training and supervision of defendant, Hymon, made them 
equally responsible for Garner's death and all defendants were 
sued on the grounds that their use or authorization to use the 
hollow point" bullets caused the deprivation of. Garner's rights 
under the Constitution and laws of the United States.

Jurisdiction was founded upon 28 U.S.C., Sections 1343(3) 
and 1331, since plaintiff alleged that the death of his son worked 
a deprivation of rights accorded Edward Eugene Garner by the 
Constitution and laws of the United States. Plaintiff cited 
specifically in this regard the Fourth Amendment right to be•v
free of unreasonable seizure 0f the body, the Fifth Amendraent rig;ht 

to due process of law, the Sixth Amendment right to a trial by 
one's peers and the Eighth Amendment right to be spared cruel and 
unusual punishment, all rights incorporated into the due process 
clause of the Fourteenth Amendment and made applicable to the 
States. Statutory rights granted by 42 U.S.C., Sections 1981, 
1983, 1985, 1986 and 1988 were also alleged to have been violated. 
A pendent claim against the same defendants under the Constitution 
and laws of the State of Tennessee was also alleged. Violation 
of rights and duties created by Tennessee Code Annotated, Section 
40-808 with respect to the proper circumstances for a resort to 
legal force by police officers was specifically asserted.

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By Order of August 18, .1975, the Court below ruled that
.no c^use. of action, can lie. against the. Memphis Police Department
or the City of Memphis under 42 U.S.C., Section 1983 and 28
U.S.C., Section 1343C3) since they were not "persons" within the
meaning of that statute.. City of Kenosha v. Bruno, 412 U.S.
5Q7 C19731 and Monroe y. Pape, 365 U.S. 167 (1961). Jurisdiction
of the Court oyer these defendants was found to have been properly
invoked, however, under 28 U.S.C., Section 1331. Bevins v. Six-

**" * ■■ 1 ■ ■—  ...  . \
Unknown Named Agents, 403 U.S. 388 (1971). In all other respects, 
jurisdiction was upheld.

Brief Statement Of The Facts
On the evening of October 3, 1974, it appears that Edward 

Eugene Garner broke into the Lidell Anderson home at 739 Vollintine, 
Memphis, Tennessee, for the purpose of committing a robbery. A 
neighbor, Mrs. Daisey Bell Statts, of 737 Vollintine, suspecting 
that a breakin was taking place next door called the police and 
reported that 739 Vollintine was being broken into. The police 
dispatcher after receiving the call radioed to nearby Ward 128 
where the defendant, E. R. Hymon, and his partner, patrolman,
Leslie Wright, were assigned and directed them to proceed to 7 3 7  

Vollintine to investigate the call. _ _  The officers immediately 
headed to the scene and upon arriving there they saw Mrs. Statts 
standing on her porch pointing to the house next door. .____ De­
fendant, Hymon, approached Mrs. Statts and interrogated her as to 
the situation whereupon Mrs. Statts stated to him that a person 
or persons were breaking into the home next door, 739 Vollintine.

-4-



Eymon returned to the. police car where his partner was waiting, 
told his, partner what the woman had said, directed his partner 
to- report back, to the police dispatcher and further directed his 
partner to proceed around the east side of the residence at 739 

Vollintine while he, Hymon, would proceed around the west side
of the residence. _____ The house at 739 Vollintine faces north,
the back side faces south and 737 Voll ntine is located on the 
West side of 739 Vollintine.

Hymon moved from the front of 739 to the rear of the house 
along its west side with a flashlight containing five D-cell 
batteries in his right hand to illuminate the area and his 
revolver in his left hand. _ At that time, Hymon had no in­
dication that the suspect was armed. ___  when he got to the
southwest corner of the house he heard a door slam, saw someone 
move across a streak of light (created by a porchlight turned 
on in back of 737 Vollintine) and heard noise on a 5%’-6' chain- 
link fence running across the length of the back yard in an
east-west direction. ___  Weeds or "Johnson Grass" about half
the height of the fence appeared to be on the south side.
He then shined his flashlight on the fence and saw a "male black".
---- An outer building was observed at the southeast corner of
the back yard abutting the chain-link fence. _____ From where
he was standing at the southwest corner of the house, Hymon said 
he could see a broken window, a garbage can under that window
and the area around the back door. ____ After he located the
person at the fence, he yelled, "Halt. Police". The
person at the fence looked in his direction. He appeared

-5-



to Hymon to be about 17-18 years old, between 5,5”-5*-7n tall 
end roughly 13Q lbs, • ’ Hymon could see Garner’s hands but
could not see his feet because he was in a "stooped position".
____ Garner halted briefly as Hymon ordered. ____ Hymon then
called to his partner, Wright, who had come into his view at 
the southeast corner of the house. - Hymon told Wright that 
Garner was on the fence and that he should come around and get 
him. __  Wright, however, asked Hymon to repeat his in­
structions and started "perhaps a little hesitantly" around to
Where Hymon had directed him. ____ Hymon was "reasonably sure"
that Garner was unarmed, since he could see his hands at all
times. _____ When Hymon told Wright once again where
Garner was, the latter attempted to scale the six foot fence.
____ When Garner was well up on the fence, Hymon fired his .38
caliber, Model 10, Smith & Wesson revolver, hitting him once in 
right side of the head though Hymon stated he aimed, as he was 
taught, at the largest target, the back. Hymon testified
that he fired because a chicken-wire fence separated him from the 
backyard area of 739 and he did not feel that he could have 
climbed it and caught Garner who was between 30-40 feet away:
"I’m not that fast," he remarked. Yet Hymon admitted
that he did not have to jump over the fence, he could have stepped
over it and his partner stated it only took Hymon three to four
seconds to get to the fence from where Hymon was standing. ____
In regard to Hymon’s physical capabilities, Hymon played basket­
ball and softball in both high school and college, receiving a 
high school varsity letter in basketball. _____ He is 6'4" tall.

-6-



He indicated that, prior to joining the Memphis Pgli.ce Depart­
ment in 1973, he was given training in physical comhat —  use 
of the nightstick and judo —  and required to do an "excessive 
amount of running." _ _ _  when asked about the extent to which 
he recieved training in when resort to lethal force was appro­
priate in apprehending a fleeing felon, Hymon testified that he 
was told to use his discretion by instructors from the Memphis
Police Department. ---- Hymon was also asked about tests given
him by the Memphis Police Department to determine his physical
abilities. ---- in such a test that measured his performance
in ten different physical exercises, Hymon scored 75 out of a
possible 100 points. ---- This score was above the minimum
required of applicants for employment as Memphis police officers.

After being shot, Garner's body fell across the top of the 
chain-link fence, his head , arms and torso on the south side,
his legs on the north side. ____ Hymon and Wright removed Gar-
ner’s body from the fence; Wright then called for an ambulance 
and for police officials to come to the scene.

Dan Jones, Chief of Detectives for the Shelby County 
Sheriff's Department, was accepted by the Court below as an 
expert on proper police procedures in the Memphis area.

When presented with hypotheticals which contained critical facts 
about the shooting of Garner, and asked whether the procedure 
used by defendant Hymon was proper under the circumstances, Chief 
Jones answered negatively. _ _  „e stressed that under cir­
cumstances like those at the time Garner was found by Hymon behinc 

Vollentine the officer had a duty to run after the fleeing 
felon prior to resorting to lethal force and that, had he been

-7-



in Hymon'-s place he wpiuld definitely have run after Garner.
•__ _ Eugene Barksdale, Inspector of the Memphis Police Depart­
ment on leave, was likewise qualified as an expert on proper
police procedure. ____ He concurred with Chief Jones that
Hymon should have run after Garner and resorted to lethal force 
only when that alternative failed. ____

Capt. John A. Coletta, Commander of the Training Division 
of the Memphis Police Department was called as a witness in the
presentation of plaintiff's case. ____ He testified that prior
to assuming his present position, he served as Range Officer 
in charge of the Memphis Police Department Firing Range and
instructor at the Police Academy in firearms training. ___ _ He
indicated that he was responsible for training the class of 
police recruits in July and August, 1973 of,which Hymon was a
member. ---- He was asked what if any instruction was given to
recruits in the use of lethal force. ___ He mentioned that
one film, "Shoot - Don't Shoot", was shown during Hymon's
training. ---- This film was marked, introduced into evidence
as Exhibit 16 and projected during Capt. Collette's testimony.
---- The film discussed the circumstances under which a police
officer would be warranted in using lethal force to protect his
own life or the lives of third parties. ___  it cautioned that
a police officer should use lethal force in self-defense only . 
when a suspect has the "ability and opportunity" to injure the 
officer and the officer's life or limb is clearly in "jeopardy". 
---- "If there is the slightest doubt" that these three elements

-8-



Whileare all present "don't shoot", stresses the film.
. the film does allude to the fact that officers in some jurisdic­
tions are permitted to shoot fleeing felons, the only examples of 
this rule in the film are ones in which the fleeing felon is
armed- --  Capt. Colletta conceded that no film was shown
that dealt directly with the use of lethal force to apprehend
unarmed fleeing felons. ____ He pointed out that lectures on
Tennessee law and police regulations regarding lethal force were 
handled by the Police Department's Legal Advisor during the
training course. ____ No training was given to recruits, he
admitted, with respect to alternative techniques for apprehending 
unarmed fleeing felons that should be exhausted before resorting 
to lethal force, even though Tennessee law dictates that lethal 
force be used under such circumstances only as a last resort
when other means of apprehension have failed. ____ The Police
Department's Firearms Manual prepared by Capt. Colletta and 
others deals in some detail with techniques for using firearms 
but contains no such information on the apprehension of unarmed
fleeing felons. ---- in sum, police recruits recieve no training
or guidance as such —  not from the Range Officer, not from the 
Legal Advisor, not from the Firearms Manual —  in this regard.
---- They are simply told, according to Coletta, that they should
be able to live with themselves if they have to shoot and kill
a person while on duty. ___ The use of lethal force under such
circumstances is left to each officer's discretion.

The examination of Capt. Coletta then turned to a dis­
cussion of weapons and ammunition used by Memphis Police Depart­
ment officers in their official capacity. ____ Capt. Colletta

-9-



acknowledged that there were essentially three subcategories 
of expertise within the general field of ballistics: internal
ballistics/ which concerns itself with characteristics of a 
projectile within the gun; external ballistics, which addresses 
questions related to behavior of projectiles from the time they 
exit from a gun to the point of striking a target; and terminal 
or wound ballistics, which studies the behavior of projectiles
after they strike a target or live tissue. ___ Capt. Coletta.
indicated that his expertise was in the first two subcategories 
of ballistics, in view of his training on ballistics testing 
he had conducted personally for the Police Department.
Under examination, Capt. Coletta testified that Memphis police 
officers were issued a .38 caliber Smith and Wesson revolver.
----- Prior to 1970, a .38 caliber 158 grain lead roundnose
Winchester cartridge was the ammunition issued for use in ser­
vice revolvers. Between 1970 and 1972, the Department issued 
a .38 caliber HO^grain, semi-jacketed hollow-point Smith &
Wesson cartridge.- In 1972, Capt. Colletta was asked by De­
partment officials to conduct a study to determine whether the 
weapon and ammunition presently issued to line officers were
adequate. /____  According to Capt. Coletta, the police officers*
union had contended that more powerful weapons and ammunition 
were necessary to insure that the officer would be able to 
incapacitate an armed suspect immediately. The- internal

1./ "cartridge" refers to the entire ammunition; the "case" which 
does not leave the weapon upon firing, the "bullet" or "sluq" 
which does leave the weapon, and the "load", or the amount of gun powder included.

-10-



memorandum setting out the objectives of the study was admitted
as Exhibit 17. ---__ As a result of tests conducted by Capt.
Coletta, the Department adopted for general use the .38 caliber 
125 grain, semi-jacketed hollow-point Remington cartridge.
The bullet that caused the death of Edward Garner was of this 
type. ____

The tests conducted by Capt. Coletta to determine the 
most effective bullet for Department use were designed to measure 
essentially three characteristics of various types of ammuni­
tion: accuracy, penetration and cavitational effect.
Accuracy was measured by firing several rounds of each bullet - 
from a fixed weapon at a target; the farthest distance between 
any two bullet holes on the target was then recorded. ____  Pene­
tration was measured by firing bullets into a row of pine boards 
and seeing how many boards were pierced or dented by the projec-

tlle* ---- Cavitational effect was measured by firing bullets
into clay blocks and seeing how large a cavity was created in
a block upon impact from the bullet. ____ The velocity of
each bullet as it left the fixed weapon was also measured with
an electrical device. ---- since the tests were also designed
to determine which bullet would have the greatest "stopping 
power" or ability to incapacitate, velocity was a significant
consideration. ---- For kinestic energy of a projectile, that
is the amount of energy it expends in a target upon impact (and, 
to a large extent its wounding capacity), depends heavily upon
the projectile's velocity. ____ Mathematically, this phenomenon

V2
is expressed in the formula K = Mx ~2 where K = kinetic energy,

-11-



yM = mass (the weight plus gravitational force of the bullet)
and V = velocity. ____ Capt. Coletta’s tests of the three
bullets used prior to 1970, between 1970 and 1972 and after
1972 revealed the following with respect to their relative ve­
locities :
Bullst In Use Velocity

(in feet per sec.)
158 grain, Lubaloy Prior to 1970
roundnose Winchester 872 + 25
1 1 0 grain, semi-jacketed 
hollow-point Smith &
Wesson Between 1970-1972 1050 + 97
125 grain, semi-jacketed After 1972 1425 + 62
hollow

In other words, the velocity of the bullet used after 1972 
was almost twice that of the bullet used up to 1970- ____

Photographic slides which depicted the results of the accu­
racy, penetration and cavitational tests of the three bullets 
mentioned above were marked, admitted into evidence and projected
during Capt. Codetta’s testimony. ____  The results were as
follows: 
Cartridge Exhibit #

Accuracy of Slide Showing
______ _ Performance

158 grain, roundnose 
Lubaloy Winchester 1 1 /2" 18(a)
1 1 0 grain, hollow-point 
semi-jacketed Smith &
Wesson 1 ” 18(d)
125 grain, semi-jacketed, 
hollow-point Remington 5/8” 18(g)

2/ Weight of bullets is expressed in the grains; 7,000 grams 
equal one pound.

-12-



Cartridge Penetration Exhibit # of Slide 
Showing Performance

158 grain Penetrated 6 
boards and 
dented 7th 18(b)

1 1 0 grain Penetrated 5 
boards and dented 
6 3/4 boards 18(c)

125 grain Penetrated 7 
boards and 
dented 8th 18(h)

Cartridge
y

Cavitational Effect Exhibit # of Slide 
Showing Performance

155 grain 3" upon impact 18(c)
1 1 0 grain 4" 18(f)
125 grain 4 1/2 " 18 (i)
Though Capt. Coletta stated that he could not reach a definitive 
conclusions with respect to wounding capacity of the bullets 
tested based upon their cavitational effect in clay since human 
tissue might respond differently, he admitted that certain assump­
tions were made in this regard, i.e., that greater cavitational
effect in clay would mean greater "stopping power". And
he expressed awareness of professional studies that supported
the view that the 1 1 0 grain would be more effective than the 158
—/ Penetration was also measured by the distance each bullet 
travelled into the clay block: 1 5 9 grain - 18"

1 1 0 grain - 9 "
125 grain - 13"



- • J • ,

-

grain and that the 125 grain would be most effective.
4/

Capt. Coletta defended the adoption of the 125 grain based upon 
its overall performance in the tests discussed above and upon 
the fact that it would be less likely to ricochet than other 
bullets. ____ He did admit, however, that the LEAA study
had concluded that all commercially available ammunition posed 
significant risks associated with their tendency to ricochet.
_____ A document reflecting the results of Capt. coletta's
study was admitted into evidence was Exhibit 19. ____ Capt. -
Coletta was asked why Memphis Police Department officers were
trained to shoot at the "center mass", i.e, the torso area- 
where viscera would likely be hit, rather at other less vital
parts of the body. This inquiry was- pressed parti-
cularly with respect to the shooting of unarmed fleeting felons. 
_____ Capt. Coletta responded that he seriously doubted whether
such accuracy could be taught given the capabilities of recruits 
to the Memphis Police Department, the time allotted for training 
and budgeting constraints. ___

Capt. Coletta was asked whether he had any awareness, in *
view of his expertise in ballistics, of the extent to which 
certain types of bullets were banned for use in international

4/ He acknowledged, for example, that Dr. Vincent DiMaio, a 
renowned forensic pathologist had found that the 125 grain bullet 
expended three times as much kinetic energy as the 158 grain and 
a fourth more than the 110 grain. He also was familiar with a 
study conducted by the Law Enforcement Assistance Administration 
(LEAA) that found that the 125 grain had three times the Relative 
Incapacitation Index (RII) as the 158 grain and twice that of the 
110 grain. Relative Incapacitation Index was defined as the 
ability of a bullet to render an armed suspect confronting a 
police officer instantaneously non-functional and incapable of 
posing a continued threat to the officer's safety.

/•  • ■ v - . '  7  - 7 .

-14-



warfare by the Hague Convention of 1899 ____ He stated that he
understood that the convention banned the use of ”Dum Dum"
bullets (bullets intentionally disfigured to produce more 
grievous wounds than ordinary bullets) and that the United
States was not a signatory of the Convention. ____ when he

. was read language from the "Declaration (IV, 3) Concerning 
Expanding Bullets (Hague, 1899) which indicated that the 
signatories would abstain from the "use of bullets which expand 
or flatten easily in the human body, such as bullets with a 
Hard envelope which does not entirely cover the core or is 
pierced with incision," he conceded that hollow-pointr semi- 
jacketed bullets might arguably fall within the category of
those banned by the Declaration. ____ Hollow-point bullets-
have a hole in the lead slug which, upon impact, causes the 
bullet to flatten, creating a diameter greater than that of a 
roundnose bullet; the greater the presenting diameter, the
greater the wound is likely to be. ____ In semi-jacketed bullet
the lead slug is not entirely encased which causes the uncovered 
area of lead to peel back over the encased portion producing
a greater presenting diameter at impact. ____ it was Capt.
Coletta’s understanding that the United States Government did 
not permit the use of hollow-point, semi-jacketed bullets by its 
armed forces in part to avoid any international disputes over 
violations of the Hague Declarations of- 1899 despite the fact thaJ
it did not sign the document. ____ a document reflecting the
course of instruction provided to recruits at the 36th Session 
(July 30- September 2 1 , 1973) of the Memphis Police Department 
Training Academy was admitted into evidence as Exhibit 20 during

-15-



Capt. Coletta's testimony. ____ During examination by counsel
for defendants, Capt. Coletta described the establishment and
operation of the Firearms Review Board. ____ He stated in
response to a question from counsel for plaintiff that he could 
not recall an instance when an officer was found by the Board 
to have fired his weapon improperly. ____ Exhibit 21, pur­
porting to be the conclusion reached by the Firearms Review 
Board with respect to the shooting of Edward Garner was marked
for identification but not admitted. ____

Dr. Jerry T. Francisco, Medical Examiner for Shelby County 
since 1961 and Chief Medical Examiner of the State of Tennessee 
since 1970 was subpoenaed to testify in plaintiff’s case.
He was accepted by the Court as an expert witness in the areas
of forensic pathology and terminal (wound) ballistics. ____ Dr.
Francisco testified that he performed an autopsy upon the body
of Edward Eugene Garner to determine cause of death. ____ His
examination of the body revealed that Garner was 5 ’ 4" tall, 
between 85 and 100 lbs. In weight and generally thin.
The bullet entered Garner's head slightly behind and above the 
right ear and exited in the left rear part of the skull.
Dr. Francisco admitted the possibility that Garner was able to
see Officer Hymon at the time he was shot. ____  The autopsy
identified no marks on the hands or torso that might have been 
caused by the sharp, pointed wire at the top of the chain-
link fence where his body fell. ____ Garner was found to have
a blood alcohol level of .09 (about the level one would get 
from drinking four cans of beer); Dr. Francisco testified 
that such an alcohol content would probably have slowed Garner's

-16-



reaction time.

With respect to the theoretical ability of various bullets 
to wound, Dr. Francisco testified that two formulas were 
generally used to reach such determinations. The first
K = M x V2 , was discussed by Capt. Coletta. ____ Once kinetic
energy (K) is determined (measured in foot-pounds) , a second cal 
culation is necessary, according to Dr. Francisco, to measure 
potential wounding effect. ____ This second formula is ex­
pressed a s W = E x l x l x K i n  which W = wounding effect, E ='

T A
Kinetic energy, T = time during which bullet is in contact with, 
the body, A = presenting area of bullet upon impact and K = a 
number of variables that cannot easily be quantified.

Based upon his knowledge of these formulas and his presence 
during Capt. Coletta1s testimony with respect to the findings 
of his study of the 158 grain, 110 grain and 125 grain bullets, 
Dr. Francisco was able to reach the following conclusions:

1) The 125 grain bullet has the greatest 
potential wounding capacity of the three, 
the 158 grain has the least;

2) Hollow—point bullets have a greater 
potential wounding capacity then roundnose 
bullets because of their larger presenting 
area (A) on impact;

3) Semi-jacketed bullets also have larger pre­
senting areas and, consequently, greater 
potential wounding capacity then fully- 
jacketed bullets;

4) The results of Capt. Coletta’s cavitational 
erfect tests are consistent with what one 
would expect based upon theoretical analysis: 
bullets with greater wounding capacity have 
greater cavitational effect.

-17-



Dr, Francisco testified that, based upon the purported ability 
of semi-jacketed, hollow-points to expand or flatten easily in 
the human body, he would conclude that such bullets fall within 
the category of those banned for use in international warfare
by the Hague Declaration of 1899. ____ He pointed out that the
phenomenon of "yaw" or the tendency of a bullet to rotate off 
center during flight might, in any given case, cause a bullet to 
hit the target at an angle rather than head-on. As a

general rule, however, hollow-point, semi-jacketed bullets would 
tend to flatten more easily than raundnosie-.* jacketed bullets ..
---- Dr. Francisco demonstrated the wounding formulas and the
effect of yaw in writing for the Court's benefit during his 
testimony; the document containing these writings was marked and 
admitted into evidence as Exhibit 2 2 . _____  a  bulletin sent
to police officials which defense counsel sought to use for
purposes of cross-examining Dr. Francisco was marked as Exhibit 
23 but not admitted. ____ _

At the end of Dr. Francisco's testimony which concluded 
plaintiff s case, plaintiff asked the Court to take judicial 
notice that, under Tennessee law, Edward Eugene Garner had a 
life expectancy of 54.95 years at time of death. Tenn. Code 
Ann. (Vol. 1 , 1975 Cummulative Supplement at 515).
Upon the conclusion of plaintiff's case, defendants moved to
dismiss the entire action. _____ with plaintiff's .consent,
the Court dismissed the Third and Fifth Claims for Relief against 
defendants J.W. Hubbard and Wyeth Chandler, respectively.
Claims against defendants City of Memphis and the Memphis Police 
Department for their alleged failure to exercise due care in

-18-



hiring defendant Hymon, set out in Paragraphs 24 and 3 7 , 
were also dismissed. In all other respects, the Court re
served its ruling on the motion to dismiss.

ARGUMENT
I.

_EUGENE GARNER WAS DENIED HIS RIGHTS GUARANTEED BY THE
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE TINTTEn 
STATES CONSTITUTION AND BY 42 U. S . C. SECTIONS 19 81", 19 83, 19 R S . 
1986 AND 1988^ BY THE ACTIONS OF THE APPELLEE, eT~R. HYMOM. tm ~ 
FATALLY WOUNDING EDWARD EUGENE GARNER INSTEAD OF EXHAUSTING ALL 
OTHER REASONABLE MEANS OF APPREHENDING SAID T dWARP EUGENE GARNER

The actions of the appellee, E. R. Hymon, in. fatally 
wounding Edward Eugene Garner instead of exhausting, all other 
reasonable means of apprehending said Edward Eugene Garner caused 
the deprivation of rights guaranteed to Edward Eugene Garner by 
the due process clause of the Fourteenth Amendment to the United 
States Constitution and by 42 U.S.C., Sections 1981, 1983, 1985, 

1986 and 1988. The question presented on this appeal can be

1 7
The Constitutional 

the following: provision and the statutes cited provide

AMENDMENT XIV.— CITIZENSHIP; PRIVILEGES AND IMMUNITIES' 
DUE PROCESS; EQUAL PROTECTION; APPORTIONMENT OF REPRE­
SENTATION; DISQUALIFICATION OF OFFICERS; PUBLIC DEBT* ENFORCEMENT '

c. * Action 1. All persons born or naturalized in the United
?T?atTe,S -o.a^d sublect to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State 
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any

PriVV ? Y per3°n of life' liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

-19-



summarized as follows: should a police officer shoot
and kill a person whom he suspects has committed a burglary in 
a situation where the officer comes upon that suspected burglar 
in the nighttime in the back yard of a residence and that officer 
has a flashlight and a gun trained on that suspected burglar and 
the suspected burglar is approximately 30 to 40 feet away from 
that officer next to a 6 foot chain-link fence and attempts de­
spite the officer's warning to halt/to scale that 5 to 6 foot 
chain-link fence in an effort to escape and the officer is rea­
sonably sure that the suspected burglar is unarmed and that burglar 
has made no attempt to harm the officer or should the officer 
shoot a warning shot, attempt to run the suspect down, shoot to 
wound the suspect or attempt some other means of capturing the 
suspect prior to shooting to kill. Appellants submit that a

§1981. Equal rights under the law

All persons within the jurisdiction, of the United States 
shall have the same right in every State and Territory to make 
and enforce contracts, to sue, be parties, give evidence, and to 
the full and equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

§1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory, subjects, 
or causes to be subjected, any citizen of the United States or other 
person within the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Constitution and 
laws, shall be liable to the party injured in an action at law, 
suit m  equity, or other proper proceeding for redress.

-20-



police officer is required to exhaust all other reasonable means 
of apprehension prior to resorting to shooting to kill a fleeing 
suspected felon. Appellants submit that resort to a reasonable

§1985. Conspiracy to interfere with civil rights —
Preventing officer from performing duties
(1) If two or more persons in any State or Territory 

conspire to prevent, by force, intimidation, or threat, any 
person from accepting or holding any office, trust, or place of 
confidence under the United States, or from discharging any 
duties thereof; or to induce by like means any officer of the 
United States to leave any State, district, or place, where 
his duties as an officer are required to be performed, or to 
injure him in his person or property on account of his lawful 
discharge of the duties of his office, or while engaged in the 
lawful discharge thereof, or to injure his property so as to 
molest, interrupt, hinder, or impede him in the discharge of 
his official duties;

Depriving persons of rights or privileges
(3) If two or more persons in any State or Territory con­

spire or go in disguise on the higheay or on the premises of 
another, for the purpose of depriving, either directly or indi­
rectly, any person or class of persons of the equal protection 
of the laws, or of equal privileges and immunities under the 
laws;...the party so injured or deprived may have an action 
for the recovery of damages, occasioned by such injury or de­
privation, against any one or more of the conspirators.

(1986. Same; action for neglect to prevent
Every person who, having knowledge that any of the wrongs 

conspired to be done, and mentioned in section 1985 of this 
title, are about to be committed, and having power to prevent 
or aid in preventing the commission of the same, neglects or 
refuses so to do, if such wrongful act be committed, shall be 
liable to the party injured, or his legal representatives, for 
all damages caused by such wrongful act, which such person by 
reasonable diligence could have prevented; and such damages 
may be recovered in an action on the case; and any number of 
persons guilty of such wrongful neglect or refusal may be joined 
as defendants in the action; and if the death of any party be 
caused by any such wrongful act and neglect, the legal repre­
sentatives of the deceased shall have such action therefor, 
and may recover not exceeding $5,000 damages therein, for the 
benefit of the widow of the deceased, if there be one, and if 
there be no widow, then for the benefit of the next of kin of 
the deceased. But no action under the provisions of this section 
shall be sustained which is not commenced within one year after 
the cause of action has accrued.

-21-



alternative to shooting to kill is required by the laws of the 
State of Tennessee in addition to the Constitution of the United 
States of America and the laws of the United States of America..
In this regard, Tennessee Code Annotated, Section 40-808 pro­
vides the following:

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

The above statute as construed by the Tennessee Courts means
that an officer may use force that may result in death, in pre­
venting the escape of a person that he is attempting to arrest 
if (1 ) he reasonably believes that the person has committed 
a felony and (2) he notifies the person that he intends to 
arrest him and (3) he reasonably believe that no means less than 
such force will prevent the escape. Cunningham vs. Ellington.
323 F.Supp. 1072, 1075 (W,D. Tenn. 1971) and cases cited therein.
The Courts of the State of Tennessee have always held that deadly 
force was a means available to allow officers to apprehend a fleeing

§1988. Proceedings in vindication of civil rights

>llo -Jk® jurisdiction m  civil and criminal matters conferred on 
the district courts by the provisions of this chapter and Title 
18, for the protection of all persons in the United States in 
their civil rights, and for their vindication?s£a?i exe^ised 
and enforced in conformity with the laws of the United States 
so far as such laws are suitable to carry the safe into elllct- 
b b J .a U  cases where they are not adapted to the object or * 
re deficient m  the provisions necessary to furnish suitable 

remedies and punish offenses against law, the common law -iv
Statf1Sh ^  cb?nged by the constitution and statutes of'the State wherein the court having jurisdiction of such civil or

cause 15 held, so far as the same is not inconsistent
tindedhJnCOnHtltUtl0n and laW5 of ^  United States, shall be ex-
of toe cause I n d ^ / i t  Sa±d COurts in the trial and disposition rne cause, and, if it is of a criminal nature, in the in­
fliction of punishment on the party found guilty.

22_



felon only as their last resort, where other less drastic means 
have proven fruitless. in Love v. Bass, 145 Tenn. 522 (1921), 
the Tennessee Supreme Court held:

"An officer has no absolute right to kill, either 
to take, or prevent the escape of, a prisoner. if 
with diligence and caution the prisoner might other­
wise be taken or held, the officer will not be justi­
fied for the killing, even though the prisoner may 
have committed a felony. 145 Tenn. at 529-531."

In Reneau vs. State, 70 Tenn. 720 (1879) the Tennessee Supreme 
Court stated:

The law on this subject, as laid down by Mr. Bishop, 
is, in substance, that an officer having a prisoner 
in custody for felony who attempts escape, will be 
excused for killing him if he can not be otherwise 
retaken, but if he can be otherwise retaken in any 
case without resort to such harsh measures, it will 
be at least manslaughter to kill him. Id. at 721"

The Court went on, however, to clarify the rights and responsi­
bilities of a law officer with respect to the use of deadly force 
under the common law rules and stated:

"The prisoner, doubtless, acted under the belief that 
erroneously prevails as to the rights of a public

'•?lat ±S' that he may lawfully kill a prisoner it he fails to obey his command to halt. Thjs is a 
very erroneous and very fatal doctrine, and must be 
corrected. Officers should understand that it is their
enable°thPTn to.secure their prisoners as will. them hold them m  custody without resorting
to the use of firearms or dangerous weapons, and that 
they will not be excused for taking life in any case, 
where, with diligence and caution, the prisoner could be otherwise held. Id. at 722."

In Reneau, a prisoner convicted of assault and battery was being
led to jail by law officers and a guard. In route, the prisoner 
broke from his custodians and started to run away in order to 
escape. Neither the law officer nor the guard pursued the prisoner
but after commanding him three times to halt with no success, the 
law officers fired two shots, one of which killed the escapee

-23-



almost instantly.

And, in Scarbrough vs. State, 76 S.W.2d 106 (1934) the 
Supreme Court of Tennessee upheld an involuntary manslaughter con­
viction of a constable for shooting a man suspected of an auto­
mobile theft. There, Scarbrough, the constable, and a deputy 
went to a camp site outside town to arrest Johnson, the suspect, 
who was reported to be in that vicinity. Scarbrough and the 
deputy came upon the suspect while he was sleep and attempted 
to arrest him. However, Johnson broke away and began running 
away from the officers. The officers pursued Johnson, yelling 
halt, and then fired five or six shots in his direction- Johnson 
was hit and killed by a final shot from the gun of Scarbrough 
who was directly behind the suspect at a distance of approximately 
75 feet. At all times Scarbrough maintained that he did not 
intend to shoot Johnson but was firing warning shots in the air 
when he stumbled, causing his arm to drop. In upholding the
jury’s findings that Scarbrough acted unreasonably the Court 
stated:

In arresting for felony, a peace officer or private 
person, acting without a warrant, may, if necessary, 
kill a felon after he resist or flees, so that he can 
not otherwise be taken; but the law does not clothe 
an officer or private person with authority to “ 
arbitrarily judge the necessity of killing and such 
a course must be the last resort... the rule to be 
observed in a civilized state, that is to 3ay, that 

officer nor a private person can slay to 
arrest the nonresisting flight of a felon if he can 
be otherwise taken. Killing in flight is excusable' 
only when it is shown that the felon could not be 
ultimately taken by less drastic means and that pre­
sents a question for determination by the jury. 76 
S.W.2d at 107 (emphasis added)."

-24-



As the testimony adduced at trial brought out beyond dispute, 
•Ilymon at most, shouted "halt", before opening fire on Garner. 
While he was in excellent physical condition, he made no effort 
to chase the suspects, shoot a warning shot or try any other 
means to apprehend Garner. And though we live in an age when 
police radio communications systems can summon assistance to 
the scene of a crime within a matter of second, Hymon did not
see fit to use his radio until after Garner had been mortally
wounded.

The Supreme Court of Tennessee found Reneau and Scarbrough 
guilty of criminal offenses for their failure to employ deadly 
force only as a last resort; in Scarbrough's case despite his 
assertions that he did not intend to shoot Johnson. In this 
case, the lower court refused to impose civil liability upon 
311 officer who employed deadly force which resulted in death 
to one man, the plaintiff.simply because Hymon questioned his 
ability to catch the fleeing Garner. Appellant has no quarrel 
with the premise that law enforcement should not be reduced 
to a footrace between policemen attempting to make arrest and 
persons evading apprehension nor does he want, in any way, 
to belittle the very real danger to their safety law officers 
encounter in carrying out their responsibilities. However, 
these considerations should not obscure the fact that in the 
case at issue, Hymon used deadly force precipitously, without 
attempting to determine whether "less drastic means" would 
have sufficed to apprehend Garner as Tennessee law requires.
For the foregoing reasons, Appellant submits that the findings 
of the lower courts in favor of the defendants based upon

■•'30wr

-25-



Tennessee law should be reversed and the case remanded for 
. entry of judgment for plaintiff.

Appellant has argued above that the judgment below in 
favor of the defendants should be reversed by this Court be­
cause the Trial Court incorrectly applied Tennessee law on the 
use of deadly force to the undisputed facts of the case at hand. 
However, assuming arguendo that the Trial Court correctly applied 
Tennessee doctrine. Appellant contends that a reversal of the 
judgment below is warranted, nevertheless. This is so because 
the District Court appears to rely solely upon Tennessee law 
standards, without reference to relevant federal, constitutional 
standards, to determine whether the defendant officers use of 
deadly force violated plaintiff's civil rights.

Garner brings this action under the Civil Rights Act 
and the United States Constitution alleging that the defendants 
have deprived him of rights and privileges guaranteed him by 
the Civil Rights Act and the Due Process Clause of the Four­
teenth Amendments to the Constitution. In essence, Appellant 
asserts that Hymon, while acting under color of State law used 
a deadly force in apprehending him and violated his rights not: 
to be deprived of life, liberty or property without due process 
of law. Given Appellant’s assertions, the District Court had a 
duty to look first to the federal doctrine relevant to the 
question of to what extent can State police officers acting 
under "color of State law", inflict grievous bodily harm upon 
a citizen without violating the due process clause of the Con­
stitution, Monroe v. Pape, 365 U.S. 167 (1961). The Federal 
Courts may, under certain circumstances, look also to non-federal

-26-



law in civil rights cases, as the Fifth Circuit discussion of
42 U.S.C.A., § 1988 in Brazier v. Cherry, 293 F.2d 401, 405-06
(5th Cir. 1961) makes clear:

"With respect to vindication of federally guaranteed 
civil rights, Congress provided that in all cases 
where the laws of the United States are ’suitable to 
carry the same into effect' but are ’not adapted to 
the object, or are deficient in the provisions necessary 
to furnish suitable remedies and punish offenses 
against laws' then ’the common law as modified and 
changed by the Constitution and statutes of the State' 
in which the Federal Court is sitting 'so far as the 
same is not inconsistent with the Constitution and laws 
of the United States are to ’be extended to and govern 
...the trial and disposition of the case."

Section 1988 requires the District Court in this case to 
determine to what extent Tennessee Law, on the question of 
the use of deadly force, is not inconsistent with the Constitu­
tion and laws of the United States as compared to a citizen’s ' 
right to be accorded due process of law. Clearly, the fact 
ihat Tennessee Code Annotated, Section 40—808 might prove 
sufficient to insulate the defendants from criminal or civil 
liability in Tennessee State Courts for shooting the plaintiff 
does not dictate that a similar result must obtain in a 
Federal Court, applying federal law. As the late Mr. Justice 
Harlan stated in respect to Section 1983:

"The statute becomes more than a jurisdictional pro­
vision only if one attribute to the acting legis­
lature the view that a deprivation of a constitutional 
right is significantly different from and more serious 
than a violation of the state right and therefore 
deserves a different remedy even though the same act 
may constitute both a state tort and the deprivation 

u constitutional right. This view, by no means 
unrealistic as a common—sense matter, is, I believe, 
more consistent with the flavor of the legislative 
history than is a view that the primary purpose of 
the statute was to grant a lower court forum for 
fact findings. For example, the tone is surely one 
of overflowing protection of Constitutional rightsT 
....Monroe v. Pape , supra. at 196 (emphasis added)."

-27-



Nor was the court below bound by the finding of a Three Judge 
Court that T.C.A., §40-808 was not unconstitutional on its face, 
Cunningham vs. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971), 
in accpeting that section as a justification for the use of 
deadly force under the circumstances of this case. Yick Wo vs. 
Hopkins, 118 U.S. 356, 366 (1886).

The Supreme Court has stated:
"Due process of law thus conveys neither foreman or 
fixed nor narrow requirements. It is the compendious 
expression of all those rights which the Courts must 
enforce because they are basic to our free society.
But basic rights did not become petrified as of any one 
time, even though gs a matter of human experience, 
some may not rhtoricrally be called eternal verities.
If is of the very nature of a free society to advance 
in its standards of what is deemed reasonable and right. 
Representing as it does a living principle, due pro­
cess is not confined within a permanent catalog of 
what may at a given time be deemed of limits or the 
essentials of fundamental rights. Wilks v. Colorado,
338 U.S. 25, 27 (1949)

Basic to the concept of due process of law in a criminal case 
is a trial - a trial in a Court of law, not a "trial by ordeal”. 
The right to be shield from "summary punishment" is basic to 
our view of ordered liberty. Screws v. United States, 325 U.S. 
91, 106 (1941); Clark v. United States, 193 F.2d 294, 296 (5th 
Cir. 1951); Jenkins v. Averett, 242 F2d. 1228, 1232 (4th Cir. 
1970); Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963);
Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958); and Brooks y. Moth, 
242 F.Supp. 531 (W.D.S.C. 1965). Squarely before the District 
Court was the issue of whether, based upon advances in society

4

"standards of what is deemed reasonable and right," it was the 
denial of due process for Hymon to employ deadly force against 
Garner where the following elements were present: (1) Garner
was fleeing from a non-violent felony against the property of

-28-



another; (2) Garner was unarmed and so observed by Hymon;
•{3} Hymon Look no measures short of deadly force to appre­
hend Garner; and (4) the deadly force employed by Hymon was 
of such magnitude as to create an expectation on the part of 
a reasonable man that death or great bodily harm will result/ 
It could not be decided by resort solely to Tennessee law, for:

"The freedom of the State in establishing its policy 
is the freedom of constitutional government and is 
limited by the requirement of due process of law.
Brown v. Mississippi, 297 U.S. 278, 285 (1936).

Appellant submits that, had the District Court engaged in such
an analysis, his claim for damages under the Civi3. Rights Act
would have been sustained- There is no State interest that is
served by authorizing police officers to employ deadly force to
apprehend persons suspected of having committed non-violent
felonies. A State can not justify depriving such persons of an
opportunity to.be tried by Judge or jury in a Court of law as
the due process clause requires.

But there are those who would argue that the use of deadly

§./ In Sol V. Hutto, 304 F.Supp. 124 (E.D.La. 1969) the District 
Court refused to decice a somewhat similar due process issue be­
cause State law afforded the plaintiff right to recovery for wrong­
ful death against a police officer who killed a 17 year old boy 
fleeing from the scene of a crash of an automobile which he had 
stolen (a feloneous act). There, plaintiff argued that "regard­
less of State law, the killing violated the standard due process 
and was therefore unconstitutional." Judge Rubin held with respect 
to that argument as follow: "the second basis for plaintiff's claim
under Section 1983 is in effect that any time a person is killed by 
a law enforcement officer merely to protect property, he has been 
deprived of his rights without due process of law, and, consequently 
his federal constitutional rights have been violated. Since plain­
tiff is entitled to recover damages for her son's death under State 
law, determination of her federal costitutional claim is preter- 
mitted because it would afford her no additional relief. Id. at 126."

In this case, where State law does not afford such relief, it 
was incumbent upon the Court to address itself to the due process claim.

-29-



force for apprehending any fleeing.felon does not violate due
process standards because such force was sanctioned by the common
law doctrine. Appellant cannot deny that the common law so
held. However, numerous commentators have pointed out that
development of the common law right to employ deadly force was
in large parts, dictated by the fact that all felonies were

7punishable by death. Almost without exceptions, these legal 
scholars have concluded that continued recognition of the common 
law right to employ deadly force in the apprehension of persons 
who are fleeing from the commission of non-violent felonies
against property is inconsistent with modern concepts of due

8 ' process. As one commentator framed the issue:

7/ The common law felonies were murder, rape, manslaughter, robbery, 
sodomy, mayhem, burglary, arson and larceny (petty larceny was not 
punishable by death)-criminal acts which all pose threats to person 
or body. Wilgus, Arrest without a Warrant, 22 MICH. L. REV. 541,
569 (1924); Perkins, Criminal Law, 881, 910 (1957); Note, Justifi- 
cation For The Use Of Force In Criminal Law, 13 STAN. L. REV, 566, 
577 (1961). :
8/ ' ? :-\ff

Aummel, The Right Of Law Enforcement Officers To Use Deadly 
Force To Effect An Arrest, 14 N.Y.L.F. 749 (1968); McDonald, Use 
Of Force By Police To Effect Lawful Arrest, 9 CRIM. L.W. 435,'
451-52, (1967); Perkins, The Law Of Arrest  ̂ 25 IOWA L. RED. 201, 
279-80 (1940); Tsimbinos, The Justified Use Of Deadly Force,
4 CRIM. L. DULL. 3, 15-20 (1968); Prosser, Law Of Tort, Section 
26 (2d Ed. 1955); Greenstone, Liability Of Police Officers For 
Misuse Of Their Weapons, 16 CLEP. MAR. L. REV. 397, 400-05 (1967); 
Note, The Civil Liability Of Peace Officers For Wounding Or Killing, 
28 U. CINN. L. REV. 488 (1959); Mooreland, The Use Of Force In 
Effecting Or Resisting Arrest, 33 NEB. L. REV. 408 (1954) ; 9 ALI, 
PROCEEDINGS 180 (1930-31); Note, The Use Of Deadly Force And The 
Protection Of Property Under The Model Penal Code, 59 COLUM. L.
REV. 1212, 1217-26 (1959); Note, The Appropriateness Of Deadly 
Force, 15 HOW. L. J. 306, 311—13 (1969); Note, Legalized Murder 
Of A Flee Felon, 15 CA. L. REV; Gremel, When Can A Policeman Use 
His Gun, 40 J. CRIM. LAW 756 (1950); Bohlen Schulman, Arrest With 
And Without A Warrant, 75 U. CA. L. REV. 485, 494-504 (1926-27); 
and Hall, Legal-Social Aspects Of Arrest Without A Warrant, 49 
HARV. L. REV. 566 (1936). ' ‘ ~ ~

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"It has been said, 'why should not the man be shot down, 
the man who is running away with an a u t o m o b i l e ? '
May I ask what we are killing him for... are we killing 
him for stealing the automobile? If we catch him and 
try him we throw every protection around him. We say 

can be tried until 12 men on the Grand Jury in­dict him,"
"Andthen he can not be convicted until 12 men of the 
petit jury have proved him guilty beyond a reasonable 
doubt and then when we have done all that, what do we 
do to him? Put him before a policeman and have a 
policeman shoot him? Of course not. We give him 3 
years in a penitentiary. It can not be the end that 
we allow the officers to kill him because he steals 
an automobile, because the statute provides only 3 
years in a penitentiary for that."
"...is it for fleeing that we kill him? Fleeing from 
arrest is also a common law sense and is punishable 
bY a light penalty... If we are not killing him for

the automobile and not killing him for fleeinu, 
what are we killing him for?" Michael and Wechler,
Criminal Law And Its Administration, paqe 82, n 3 ( 1 9 4 0 ) 1 ---------

For many years, Courts, as well, have questioned the
applicability of the common law rule on the use of deadly force
to all grades of felonies. In Reneau vs. State, supra, the
Supreme Court of Tennessee commented:

"--it may be a question worthy of consideration
whether the law ought not to be modified in respect 
to the lower grade of felonies, especially in veiw 
of the large number of crimes of this character 
created by comparatively recent legislation, whether 
after those even escaped would be better than to take 
life. Id. at 627."

The Supreme Court of Pennsylvania recently observed as
follows in upholding the second degree murder conviction of a home

9owner for shooting a prowler:

.the common law rule that a killing necessary to prevent 
the escape of a felon is justifiable developed at a

9/ At common law the right to use deadly force in apprehending 
a fleeing felon extended to private persons and law officers 
alike. 3 Holdsworth, THE HISTORY OF ENGLISH 311-12 MthEd. 1935).

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time when the distinction between felony and misde­
meanor was very different than it is today. Statutory 
expansion of^the class of felonies has made the common 
law rule manifestly inadequate for modern law. Hence 
the need for a change or limitation in the rule is 
indicated. We therefore hold from this day forward 
the use of deadly force by a private person in order 
to prevent the escape of one who has committed a felony 
or has shown or assisted in the commission of a felony 
is justified only if the felony committed is a treason, 
murder, voluntary manslaughter, mayhem, arson, robbery, 
common law rape, common law burglary, kidnapping, 
assault with intent to murder, rape or rob, or a felony 
which normally causes or threatens death or great bodily 
harm. Common Wealth vs. Chermansky, 430 Pa. 170, 242 A.2d 
237, 240 (1968)

In Storey v. State, 71 ALA. 329 (1882), the Supreme Court 
of Alabama raised serious questions as to the correctness of 
prevailing interpretations of the common law with respect to 
the right to use deadly force in all felony cases:

"After a careful consideration of the subject we 
are fully persuaded that the rule, as thus said, 
is neither sound in principle, nor is it supported 
by the weight of modern authority. The safer view 
is that taken by Mr.. Warner, that the rule does not 
authorize the killing of persons attempting 
felonies, not accompanied by force. —  Wharton Horn. ,
Sec. 539. Mr. Greenlead confines it to "the prevention 
of any attrocious crime attempted to be committed by 
force? such as murder, robbery, housebreaking in the 
nighttime, rape, mayhem, or any other act of felony 
against the person" (3 Greenl. ev. 115); and such seems 
to be the general expression of the common law texts 
writers.—  1 Russ. Cr. 665-70; 4 Black. Com. 178-80;
The reaction of legislators in several states has been to 

limit the common law deadly force doctrine to apply only in 
cases of violent felonies. Under New York Law, an officer may 
use deadly force to effect an arrest (as well as for other pur­
poses enumerated):

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"...only when he reasonably believes that : (a) the
offense committed was: (i) a felony or an attempt
to commit a felony involving the use or the attempted 
use or threatened imminent use of physical force against 
the person; or (ii) kidnapping, arson, escape in the 
first degree, burglary in the first degree or any 
attempt to commit such a crime; or (b) the offense 
committed or attempted by such person is armed with a 
firearm or deadly weapon; or (c) regardless of the 
particular offense which is the subject of the arrest 
or attempted escape, the use of deadly physical force 
is necessary to defend a police officer or another person 
from what the officer reasonably believes to be the use 
or imminent use of deadly physical force. 1

Under Louisana Law,'*” the use of deadly force is justifiable:
"(2) when committed, for the purpose of preventing 
a violent or forcible felony involving danger to 
life or of great bodily harm, by one who reasonably 
believes that such an offense is aobut to be committed 
and that such action is necessary for his prevention.
Thus, deadly force may not be used to prevent the 
commission of a felony involving only property, 
a marred departure from the common law group."

And, in Colorado, homicide by an officer is justified only if
the felon resist; flight is not a sufficient basis for the use
of deadly force. Colo. Rev. Stat. Ann. Sec. 40-2-16 (1963) .

But the challenge to the common law doctrine has come 
from the law enforcement community as well, in large part because 
of its awareness as an authorized use of deadly force in appre­
hending fleeing felons results, more often does not, in death 
to the person evading arrest. As former police commissioner of 
New York City, Howard Leary, stated upon passage of the current 
New York provisions governing the use of deadly force:

10/
New York Penal Law Section 35.30 (1) (McKinnie, 1968). This 

New York Provisions was patterned closely after an earlier Illinoi 
enactment, 111. Ann- Stat. Ch. 38, Sec. 7-6 (Smith-Hurd).
11/

Louisana Rev. Stat. 14:20 (2). The Court in Salus v. Hutto, 
supra./ based its decision upon this provision of Louisana Law.

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"It is a step forward to have a clear statement 
that irresponsible teenagers who the actions 
happens to amount to felonies against property- 
are not for that reason alone subject to death 
at the hand of a police officer attempting to 
arrest them. N.Y.L. J. Opt. 3 1967, page 4."
In 1967, a presidential commission recommended that:
"Deadly force shall be restricted to the appre­
hension of perpetrators who, in the course of 
their crime threaten to use deadly force, or if the 
officer believe there is a substantial risk that the 
person whose arrest is sought will cause death or 
serious bodily harm if his apprehension is delayed.
The use of firearms should be flatly prohibited 
in the apprehension of misdemeanors, since the value 
of human life far out weighs the gravity of a mis­
demeanor.! 2
In jurstifying this recommendation on the use of deadly 

force, the commission pointed out as follows:
"When studied objectively and unemotionally, particular 
usage is found by police officers are often unarranted.
For example, an American Bar Foundation study revealed 
one instance where a foot partolman signaled a speeding 
driver to stop. When the driver did not, the officer 
fired five times at the speeding car...
A study by an American Civil Liberties Union Affiliate 
in a medium size city found that officers fired guns 
more than 300 times in a two year period and over 1/3 
were during automobile chases involving juveniles. On 
an average of 240 persons per year were fatally injured 
by police between 1950 and 1960...
It is the price and a that few police departments
provide their officers with careful instructions on the 
circumstances under which the use of a firearm is per­
missible .
For example, a 1961 survey of Michigan Police forces found 
that 27 out of 49 had no firearms policies. A survey in
1964, of 45 of the 51 american cities over 250,000 popula­
tion found that 3 had no written firearms policy, and,

12/ The Challenge Of Crime In A Free Society: A Report by the
President's Commission on Law Enforcement and Administration 
of Justice, Task Force Report: Police p. 189 (1967)



while others had comprehensive policy statements, 
many were quite limited. For example, one simply 
prohibit warning shots, when instructed his officers 
to "exercise the greatest possible caution," and 
10 urged officers to use "good judgment". 13

Death is the most extreme punishment enacted by a State
and then only in connection with the most serious of crimes.'1'4

The Supreme Court has to date upheld the death penalty in care­
fully prescribed circumstances where the constitutional guarantees 
of due process have first been afforded the accused. The un­
disputed facts of the instant case clearly reveal that Hymon, while 
acting under color of State law, in shooting and kilting Garner, 
punished Garner without first affording Garner his.rights 
guaranteed by the Constitution and laws of the.United States and 
the State of Tennessee.

II.
EDWARD EUGENE GARNER WAS DENIED HIS RIGHTS TO DUE PROCESS OF 
LAW GUARANTEED BY THE' FOURTEENTH AMENDMENT TO THE UNITED STATR.q 
CONSTITUTION AND TO HIS RIGHTS GUARANTEED UNDER-42~~USC- , SECTIONS 
A.3817 1983, 1985, 1986, AND 1988, BY THE APPELLEES' ACTIONS T N~~ 
USING OR AUTHORIZING THE USE OF THE "HOLLOW-POINT" PROJECTILE-

OR BULLET ' ‘ ~~ ' ' ' '
The use or authorization to use the "hollow-point" pi-o- 

jectile or bullet under the circumstances of the instant case 
caused the deprivation of rights guaranteed to Edward Eugene 
Garner by the Fourteenth Amendment to the United States Con­
stitution and 42 U.S.C., Sections 1981, 1983, 1985, 1986 and 
1988. As shown by the proof in this case, the ammunition in 
use by the Memphis Police Department at the time Garner was 
fatally wounded by Hymon and the particular ammunition that

13/ Ibid.

14/ Burglary is usually not included among the crimes that carry 
a death penalty.

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caused the death of Garner was the hollow-point bullet, speci­
fically the .38 caliber 125 grain, semi-jacketed hollow-point 
Remington cartridge. As reflected by the proof this particular 
^̂ uftunition has a hole in the lead slug which, upon impact, 
causes the bullet to flatten, creating a diameter greater than 
that of a roundnose bullet, thereby inflicting a greater wound 
on the victim hit by that bullet. The ammunition used by the 
Memphis Police Department at the time Garner was killed and 
the ammunition used to kill Gamer is the type ammunition which 
the United States Government did not permit its Armed Forces 
to use and which is outlawed in international warfare by the 
Hague Convention of 1899. There is no doubt that the 125 grain 
semi-jacketed hollow-point Remington cartridge used to kill 
Garner is more dangerous than conventional ammunition and has 
a higher propensity to kill or seriously wound a person struck 
by such ammunition.

The question becomes whether the Memphis Police Department 
and indeed any Police Department can use or authorize the use 
of ammunition that has a great likelihood to kill or seriously 
wound a person as opposed to ammunition which is sufficient to 
protect the lives and property of police officers and private 
citizens, that is, ammunition that is designed to stop a suspect 
rather than kill a suspect. Appellant submits that the use of 
the type ammunition used by the Memphis Police Department in 
the apprehension of persons suspected of crime constitutes cruel 
and unusual punishment and a denial of due process of law as 
guaranteed by the Constitution and laws of the United States of 
America. There appears to be no case law specifically dealing

-36-



with the * constitutionality of using the particular ammunition 
used in the instant case. There is, however, abundant case 
law on the unconstitutionality of acts or procedures which shock 
the conscience, Rochin v. California, 342 U.S. 165 (1952); 
Rosenberg v. Martin, 478 F.2d 520 (2nd Cir.) cert. den., 4l4 
U.S. 872 (1973); Johnson v. Glick, 41 F.2d 1028 (2nd Cir.) cert. 
den., 414 U.S. 1033 (1973). Rochin and the other cited cases 
stand for the proposition that the Constitution prohibits acts 
by the State which shock the conscience of the Court. Appellant 
submits that the use of the "hollow-point” ammunition by the 
Memphis Police Department falls within those acts which shock 
the conscience of the Court by reason of that ammunitions capa­
bilities of causing death or great bodily harm.

Therefore, appellant submits that the use of the "hollow- 
point" ammunition by Hymon and the authorization by the other 
named defendants for Hymon to use said ammunition in the killing 
of Garner constituted a deprivation of Garner’s rights guaranteed 
him by the Constitution and laws of the United States of America.

III.
EDWARD EUGENE GARNER WAS DENIED HIS RIGHTS GUARANTEED BY THE 
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED 
STATES CONSTITUTION AND HIS RIGHTS GUARANTEED UNDER 42 U.S.C., 
SECTIONS 1981, 1983, 1985, 1986, and 1988, BY THE ACTIONS OF 
THE MEMPHIS POLICE DEPARTMENT, THE CITY OF MEMPHIS, TENNESSEE, 
WYATT CHANDLER, MAYOR OF MEMPHIS, IN THEIR ACTIONS OF FAILING 
TO EXERCISE DUE CARE IN THE HIRING, TRAINING AND SUPERVISION

OF E. R. HYMON
The actions of the Memphis Police Department, the City 

of Memphis, Tennessee, Wyatt Chandler, Mayor of Memphis, in failing 
to exercise due care in the hiring, training and supervision of 
E. R. Hymon caused the deprivation of the rights guaranteed to

-37-



Edward Eugene Garner by the due process clause of the Fourteenth 
Amendment to the United States Constitution and his rights 
guaranteed under 42 U.S.C., Sections 1981, 1983, 1985, 1986, and 
1988. As shown above the actions of the appellee, Hymon, in 
shooting and killing Garner without first exhausting other rea­
sonable means of apprehension of Garner, deprived Garner of his 
rights guaranteed by the Constitution and laws of the United States 
of America and the State of Tennessee. The question at this point 
becomes whether the appellees, the Memphis Police Department, the 
City of Memphis, Tennessee, and Wyatt Chandler, Mayor of Memphis, 
failed to exercise due care in the hiring, training and supervi­
sion of E. R. Hymon. The proof reflects that Hymon was not re­
quired to go through any psychological training to determine his 
propensities to use deadly force in the apprehension of suspected 
law breakers, prior to his being hired by the Memphis Police De­
partment- The proof reflects that the Memphis Police Department 
has no formalized procedure to weed out those persons who are 
likely to use lethal force in situations where lethal force is 
unnecessary.

The proof also reflects that while new police recruits in 
going through their training period are shown films and given 
instructions on the use of lethalL force, there appears to be no 
training in connection with the use of lethal force to appre­
hend a fleeing suspected felon who is unarmed. Also in those 
training sessions new police recruits are trained to shoot at the 
large body areas instead of the limbs where wounding is more 
likely.

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*7T



The proof also reflects that after a new police recruit 
completes his training period there is little or no supervision 
of his activities.

Appellant submits that on the record in this cause, the 
Court below should have found the appellees, the Memphis Police 
Department, the City of Memphis, Tennessee, and Wyatt Chandler,
Mayor of Memphis, had failed to exercise due care in the hiring, 
training and supervision of E. R. Hymon. Appellant submits that 
a police department and a city has the duty to ascertain the 
propensities of a person to use deadly force unnecessarily prior 
to giving that person a position on a police force and placing 
into his hands a deadly weapon and releasing him on the community. 
Appellant submits that a police department and a city has the 
duty to adequately train its police officers to exercise restraint 
before a shooting and taking a persons life. Finally, appellant 
submits, that a police department and a city has the duty to 
adequately supervise its police officers to insure that they do 
not unnecessarily take the lives of private citizens.

The record reflects that the City of Memphis and the Memphis 
Police Department and Wyatt Chandler, the Mayor of Memphis, have 
failed to exercise due care in the hiring, training and supervision 
of their police officers and in the hiring, training and supervision 
of E. R. Hymon.

CONCLUSION
WHEREFORE, for all the foregoing reasons, plaintiff-appellant 

respectfully prays that the Judgment of the District Court be re-

-39-



versed and that the matter be remanded to the District Court for 
a determination of the proper relief to be awarded.

Respectfully submitted,

AVON N. WILLIAMS, JR. 
MAURICE E. FRANKLIN
1414 Parkway Towers 
Nashville, Tennessee 37219
WALTER L. BAILEY, JR.
BAILEY, HIGGS & BAILEY 
161 Jefferson Avenue 
Memphis, Tennessee 38103
JACK GREENBERG 
JAMES M. NABRIT, XXX 
STEVE RALSTON
10 Columbus Circle, Suite 2030 
New York, New York 10019
Attorneys for Plaintiff-Appellant

CERTIFICATE
The undersigned certifies that copy of the foregoing 

Brief of Appellant was mailed to Henry L- Klein, Esguire, 100 
North Main Building, Suite 3500, Memphis, Tennessee 38103, this 
the 25th day of May, 1977.

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