US Sixth Circuit Court of Appeals Court Opinion

    240 710 FEDERAL REPORTER 2d SERIES

union official was not protected by section 
101(a)(2).''

It follows a fortiori from the foregoing 
discussion that Cehaich was not statutorily 
entitled to the protections afforded in sec­
tion 101(aX5). Cehaich was not disciplined 
in any manner which affected his right to 
fully enjoy the rights and privileges of un­
ion membership. Therefore, the union was 
not required to afford him the procedural 
protections of the Act. We express no 
opinion on the question of whether the un­
ion’s bylaws or constitution contain such a 
requirement. This is an internal matter of 
union governance. If the union has no such 
requirements, then Cehaich is free to at­
tempt to change the union’s internal rules. 
However, we deal here with congressionally 
mandated protections Those enumeratexi 
protections reflect the \iew that ‘‘Congress 
simply was not concerned with perpetu­
ating appointed union employees in office 
at the expense of an elected president's 
freedom to choose his own staff.” Finne­
gan, 456 U.S. at 442, 102 S.Ct. at 1873.

In sum, we find no error in the district 
court's dismissal of Cehaich's claims. 
Though the Supreme Court had not yet 
decided Finnegan v. Leu. the district court 
correctly analyzed the intended purpose of 
the LMRDA. Accordingly, we affirmi the 
judgment of the Honorable Anna Diggs 
Taylor of the United States District Court 
for the Eastern District of Michigan

I c  I  H T d llJ M B - l'S r S T E M ;

11. TPe question before this court is not wheth­
er it might have been better to afford Cehaich 
some or ai; of the protections guaranteed b\ 
the Act The union leadership might actualh' 
inspire more confidence in its comrrutmeni to

Cleamtee GARNER Plaintiff-Appellant,
V.

MEMPHIS POLICE DEPARTMENT, et 
al., Defendants-.Appellees.

No. 81-5605.

United States Court of Appeals,
Sixth Circuit.

Argued Jan. 18. 1983.
Decided June 16, 1983.

Rehearing and Rehearing En Banc-
Denied Sejit 26, 1983.

Father of unarmed boy \\ho was shot 
by police officer as he w'as fleeing from 
unoccupied house brought wrongful death 
action under federal civil rights statute 
against municipal police department. The 
United States District Cour, for the West­
ern District of Tennessee, Harry W. Well- 
ford, J.. after rem.and, 60t.' F.2d 52, granted 
judgment for defendant, and plaintiff af>- 
fiealed. The Court of Apipeals, Merritt, Cir­
cuit Judge, held that: (1) Tennessee’s flee­
ing felon statute was unconstitutional un­
der the Fourth and Fourteenth Amend­
ments, and (2) municipality was not im­
mune from liability under federal civil 
rights statute.

P,eversed and remanded
1. Arrest <s=68

Tennessee’s fleeing felon statute was 
invalid under the I'ourth Amendment as an 
unreasonable seizure of the person since it 
did not put sufficient limits on use of dead­
ly fore* and did not make distinctions based 
on gravity and need or on magnitude of the 
offense T.C.A. § 40-808 (now § 40-7- 
108); U.S.C.A Const.Amend. 4
2. Arrest e=§8

Before taking drastic measure of using 
deadly force as a last resort against a flee­
ing suspect, officers should have probable 
cause to believe not simply that the susf)ect

open and free debate if it did so However, 
Congress has not made the failwe to provide 
such protections to those in Cehaich's position 
a matter of federal concern



iff-Appellant,

RTMENT, et 
fllees.

Apfieals,

)83,
983.
r En Banc
83.

 ̂ho was shot 
fleeing from 
■ongful death 
ights statute 
rtment. The 
‘or the Wesl- 
rry W. Well- 
d 52. granted 
plaintiff af>- 
.Merritt. Cir- 

nessee’s flee- 
itutional un- 
nth Amend- 
was not im- 
federa! civil

statute wa.« 
dment as an 
rson since it 
use of dead- 
ctions based 
litude of the 
)w § 40-7-

ire of using 
iinst a flee­
ce probable 
the suspect

5. However, 
e to pro\ide 
ch's position

GARNER V . MEMPHIS POLICE DEPT.
Clteas710F.2d24« (I»83)

has committed some felony, but that the felon statute, T.C.A 
suspect poses a threat to safety of the offi­
cers or a danger to the community if left at 
large, the officers m.ay be justified in using 
deadly force if the suspect has committed a 
violent crime or if they have probable cause 
to believe that he is armed or that he will 
endanger physical safety of others if not 
captured.

3. Arrest <s=>68
Police officers were not justified under 

the Fourth Amendment to use deadly force 
against an unarmed boy fleeing from bur­
glary of an unoccupied house. U.S.C.A. 
Const.Amend, 4.

4. Constitutional Law <3=252.5
Where a fundamental right is involved, 

due process requires a state to justify any 
action affecting that right by demonstrat­
ing a comfielling state- interest. U.S.C..A.. 
Const.-\mend. 14.

Before EDWARDS, Chief Judge. 
KEITH and MERRITT. Circuit Judgt-

§ 40-808 (19751 under 
the Fourth. Eighth and Fourteenth Amend­
ments. The Tennessee statute, as inter­
preted by the District Court and by other 
federal and state courts, authorizes fKilice 
officers to use deadly force in order to 
capture unarmed suspect fleeing fromi non­
violent felonies. The statute reads: “If 
. . . the defendant . . . either flee or forci­
bly resist, the officer may use all the neces­
sary means to effect the arrest." In the 
present action for wrongful death under 42 
U.S.C. § 1983 (1976), a Memphis ĵ folice offi­
cer shot an unarmed bo\' fleeing from, the 
burglar}' of an unoccupied house. We hold 
the Tennessee statute unconstitutional t>e- 
caust it authorizes unnecessaril} .severe and 
excessive, and therefore unreasonable, 
methods of seizure of the jierson under the 
Fourth and Fourteenth .Amendments.

I.

5. .Arrest <s=68
Constitutional Law <a=>262 

Tennessee’s fleeing felon statute, a law 
which infringed on fundamental rights, was 
invalid under the Fourteenth Amendment 
since it was not so narrowly drawn so as to 
express only legitimate state interests at 
stake. T.C.A. § 40-808 (now § 4(e-7-108), 
U.S.C.A. Const.-Amend. 14

6. Ci>il Rights <s= 13.8(3)
There was no gCKxl faith imm.unity for 

municipality under federal civil rights stat­
ute. 42 U.S.C.A. § 1983.

Steven L. Winter (argued). New York 
City. Walter L. Bailey, Jr.. Memphis, Tenn., 
for plaintiff-appellant.

-Arthur Shea. Asst. County Atty.. Henry 
L. Klein (argued), Memphis, Tenn., for de- 
fendants-apfiellees.

and

MERRITT. Cmcui'. JudgL 
The principa' ouestior, lofore us concerns 

the constitutionaiit} of Tennessee’s fleeing

On the night of Octolor 3. 1974, a fifteen 
year old. unarmed 'toy broke a window and 
entert-d an unoccupied residence in subur­
ban Memphis to steal money and projorty. 
Two folice officers, called to the scene by a 
neighlor, intercepted the youth as he ran 
from, the back of the house to a six foot 
cyclone fence in the back yard. -After shin­
ing a flashlight on the loy as he crouched 
by the fence, the officer identified himself 
as a foliceman and yelled "Halt." He could 
see that the fleeing felon was a youth and 
was apparently unarmed. As the lot 
jumjod to get over the fence, the officer 
fired at the ujiior pan of the iKidy, using a 
38-calibre pistol loaded with hollow fxiim 
bullets, as he was trained to do by his 
sujieriors at the Memphis Police Dejiari- 
ment. He shot tiecause he Iielieved the 1k)\ 
would elude capture in the dark once he 
was over the fence. The officer wa« taught 
that it was prosier under Tennessee law to 
kill a fleeing felon rather than run the risk 
of allowing him to escajie. The youth died 
of the gunshot wound. On his person was 
ten dollar.- worth of money and jewelrt he 
had taker, iron, the hou-se 

Tn* District Court dismissed the suit 
brought b} (ie-c-edent’s father against the



mi='i

242 710 FEDERAL REPORTER, 2d SERIES

City under 42 U.S.C. § 1983 (1976) to recov­
er damages for wrongful death caused by- 
claimed constitutional violations of the 
Fourth. Eighth and Fourteenth Amend­
ments. In accordance with Monroe v. Pape, 
365 U.S. 167, 81 S.Ct. 473. 5 L.Ed.2d 492 
(1961), the District Court held that a city is 
not a "person” subject to suit under § 1983. 
Before we heard the first appeal, Monroe 
was overruled on this p>oint by Monell 
Department o f Social Services. 436 U.S. 658. 
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The 
District Court also dismiissed the case 
against the officer and his superiors hold­
ing, in accordance with our decisions in 
Beech v. Melancon. 465 F.2d 425> (6th Cir. 
1972), cert, denied. 409 U.S 1114, 93 S.Ct. 
927, 34 L.Ed.2d 6% (1973); Qualls v. Parr­
ish, 534 F.2d 690 (6th Cir 1976); and Wiley 
V. Memphis Police Department. 548 F.2d 
1247 (6th Cir.), cert denied. 434 U.S. 822. 98 
S.Ct. 65. 54 L.Ed.2d 78 (1977). that the 
officers acted in good faith reliance on Ten­
nessee law which allows an officer to kill a 
fleeing felon rather than run the risk of 
allowing him to escape apprehension.

On appeal, a panel of this Court consist­
ing of Chief Judge Edwards and Judges 
Lively and Merritt affirmed the District 
Court's holding that the individual defend­
ants were protected by the doctrine of qual­
ified immunity because they acted in good 
faith reliance on T.C.A. § 4(‘-808. Garner 
V. City of Memphis. 6(K! F.2d 52 (6th Cir 
1972). We reversed and remanded the case 
against the City of Memphis, however, for 
reconsideration by the District Court in 
light of Monell v. Department o f Social 
Services, supra. Because Monell held that a 
city may be liable in damages under § 1983 
for constitutional deprivations that result 
from a “policy or custom” followed by the 
city, 436 U.S. at 694 and n. 66, 98 S.Ct. at 
2037-2038 and n. 66. we instructed the Dis­
trict Court to consider the following ques­
tions:

1. 'Whether a municipality has qualified 
immunity or privilege based on good 
faith under MonelP

2. If not. is a municipiality's use of dead­
ly force under Tennessee law to cap­
ture allegedly nondangerous felons

3.

4.

fleeing from nonviolent crimes consti­
tutionally permissible under the 
Fourth, Sixth, Eighth and Fourteenth 
Amendments?
Is the municip>ality’s use of hollow 
point bullets constitutionally permis­
sible under these provisions of the 
Constitution?
If the municipal conduct in any of 
these resf)ects violates the Constitu­
tion, did the conduct flow from a 
“policy or custom” for which the City 
is liable in damages under Monell? 

600 F.2d 52, at 54-55.
On remand. Judge Wellford ordered 

memoranda and oral argTJment on the issue 
of whether the trial should be reopened. 
By order dated February 29, 1980 he denied 
further hea.nngs and dismissed the case on 
the merits, holding that the con.stitutional 
claims had already been fully adjudicated. 
Because there had been no constitutional 
violation, the holding of Monel! that cities 
could be liable for violations occurring pur­
suant to a policy or custom of the city did 
not require a different result. Plaintiff’s 
motion for reconsideration was granted and 
he was allowed to submit further briefs and 
make an offer of proof. The Judge con­
sidered the offer of proof and once again 
ruled against plaintiffs in a written opinion 
dated July 8, 1981. He held that the wis­
dom of a statute permitting the use of 
deadly force against all fleeing felons was a 
matter of policy for the legislature rather 
than the judiciary, and that the Tennessee 
statute w-as not unconstitutional on its face, 
nor as applied by the police officer in this 
case

Addressing the question of the City's 
good faith imiTiunity, the District Court 
held that Owen v. City o f Independence, 
445 U.S. 622. 100 S.Ct. 1398, 63 L,Ed.2d 673 
(1980), prevented the city fromi claiming 
immunity from liability based on the good 
faith of its agent. Nevertheless, it found 
that it was still an open question whether 
the City might claim immunity if the City 
itself was relying in good faith on the Ten­
nessee law as interpreted by the federal and



ioient crimes consti- 
issible under the 
'hth and Fourteenth

tv’s use of hollow 
titutionally permis- 

provisions of the

conduct in any of 
lates the Constitu- 
duct flow from a 
for which the City 

?es under Monell?

V^ellford ordered 
Jmeni on the issue 
ould be reof>ened. 
29. 1980 he denied 
nissed the case on 
the constitutional 
fully adjudicated, 
no constitutional 

Monel! that cities 
)ns occurring pur- 
'm of the cit\- did 
esult. Plaintiff’s 
was granted and 

further briefs and 
The Judge eeri­

ly and once again 
a written opinion 
eld that the wis- 
ting the use of 
eing felons was a 
egislature rather 
it the Tennessee 
•ional on its face.
* officer in this

1 of the City’s 
Distnet Court 

f  Independence,
. 63 L.Ed.2d 673 

from claiming 
od on the good 
heless. it found 
Jestion whether 
nil;, if the Cjiy 
:tr. on iht Ten- 
the fe-Jera! and

Judge Wellford did not t»e- ness” and "necessity” of the officer’s action

GARNER V. MEMPHIS POLICE DEPT. 243
Cite as 710 F.2d 240 (1983)

state courts 
lieve it necessary to address the constitu 
tionality of the use of hollow point bullets, 
because he found that there was no causal 
connection between the use of hollow point 
bullets and Garner’s death.

II.
We consider the Fourth Amendment 

question first because, unlike the other 
more general constitutional provisions 
raised, the Fourth Amendment is specifical­
ly directed to methods of arrest and seizure 
of the person. The question under the 
Fourth Amendment is one of first impre.s- 
sion in this Circuit, The narrow question 
presented is whether a state law authoriz­
ing the killing of an unarmed, nonviolent 
fleeing felon by police in order to prevent 
escape, constitutes an unreasonable seizure 
of the person.

The Fourth Amendment provides for the 
"right of the people to Oe secure in their 
persons . . . against unreasonable . . . sei­
zures.” The Amendment also provides that 
where a warrant is necessary it must de­
scribe “the {lerson to be seized.” When an 
officer “accosts an individual and restrains 
his freedom to walk away,” the Fourth 
Amendment comes into play Terry i-, 
Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877. 20 
L.Ed.2d 889 (1968! “[A] fierson is ‘seized'
, . when, by means of physical force or a 
show of authority, his freedom of move­
ment is restrained.” United States v. Men­
denhall, 446 U.S 544 , 553. 100 S.Ct. 1870. 
187 (, 64 L.Ed.2d 497 (1980). Killing the 
individual is the most decisive way to make- 
sure that he does not "walk away,” a meth- 
(xl “unique in its severity and irrevocabili­
ty.” Gregg V. Georgia. 428 U.S. 153, 187, 96 
S.Ct 2909, 2931, 49 L.Ed.2d 859 (1976). It 
is plainly a “seizure” of the "person.” The 
question therefore becomes whether this 
method of capturing suspects is “reasona­
ble” under the Fourth Amendment.

Tennessee courts have interpreted their 
statute regarding the capture of fleeing 
felons to create a jury question on the issue 
of the ".reasonableness” and the "necessity” 
of using deadly force. But the “reasonable-

must l)e judged solely on the basis of 
whether the officer could have arrested the 
suspect without shooting him. Purporting 
to follow the rule developed in England at 
common law allowing the use of deadly 
force against susr>ecG fleeing from any fel­
ony. Tennessee courts have interpreted 
their statute to mean that once it is deter­
mined that the officer probably could not 
have captured the person without firing, 
the jury should find the police action rea­
sonable under the statute. Scarbroug^h v. 
State, 168 Tenn. 106, 110, 76 S.W.2d 106 
(1934) (officer may kill automobile thief "as 
a last resort” to prevent escaf>e and the 
question of "necessity of killing” is one for 
jury): see also Ui the same effect Love v. 
Bass. 145 Tenn. -522, 238 S.W. 94 (1921) and 
State Boles. 598 S.W.2d 821 (Tenn.App. 
1980) and the cases cited in those opinion.' .̂ 
It miakes no difference that the felonv was 
nonviolent or that the felon was unarmed 
and not dangerous to the physical safety of 
others.

It is true that the common law j>ermitted 
the killing of a felon who resists arrest 
without regard to the nature of the felony. 
But it did so at a time when all of the small 
num’oer of teionies then in existence were 
capital crimes. Since any felon at large 
would be hanged or otherwise executed if 
taker, and tried, ne was an "outlaw” who 
was automatically dangerous and posed an 
imminent threat to the physical safety of 
others. The common law, however, prohile 
ited the use of deadiv force against a flee­
ing sus}>ect whose crime did not require 
execution and who, therefore, was not like­
ly to liecome a dangerous outlaw.

Pollock and Maitland de.scril)e' as follows 
the felonv at common law and the method 
b y  which a felon could I k .- taken:

But the verj ease with which the king's 
peace spread itself until it had t»ecome an 
all-embracingf atmosphere prevented a 
mere breach of that j>eace from being 
permanently conceived as a crime of the 
highest order. It was otherwise with 
felony. This becomes and remains a 
name for the worst, the bootless crimes.

iI
,8: .'!*• ..■ .c'-v-v K.k ' ■ ■; .'7 V

i i : : V



iff!

244 710 FEDERAL REPORTER 2d SERIES

The specific effect of the ‘words of 
felony’ when they were first uttered by 
appellors, who were bringing charges of 
homicide, robbery, rape and so forth, was 
to provide that, whatever other punish­
ment the apfiellees might undergo, they 
should in all events lose their land . . .  
At all events this word, expressive to the 
common ear of all that was post hateful 
to God and man, was soon in England and 
Normandy a general name for the worst, 
the utterly ‘bootless’ crimes. . . . The 
felon's lands go to his lord or to the King 
and his chattels are confiscated. The fel­
on forfeits life or member. If a man 
accused of felony flies, he can be out­
lawed.

We have now to speak of the various 
processes which the law employs in order 
to compel men to come tiefore its courts. 
They vary in stringency fromj the polite 
summons to the decree of outlawry.

When a felony is committed the hut 
and cry should be raised. . The neigh­
bors should turn out with the bows, ar­
row’s, knives, that they are bound to keep 
and, besides much shouting, there will be 
hornblowing; the ‘hue’ will be ‘horned' 
from vale to ville.

Now if a man is overtaken by hue and 
cry while he has still about him the signs 
of his crime, he will have short shrift. 
Should he make any resistance, he will be 
cut down.

T'nere is hardly room, for doubt that 
this process had its origin in days when 
the criminal taken in the act was ipso 
facto an outlaw. He is not entitled to 
any ‘law,’ not even to that sort of ‘law’ 
which we allow to noble beasts of the 
chase. Even when the process is 'Oeing 
brought w’ithin some legal control, this 
old idea survives. If there must be talk 
of proof, what has to be proved is not 
that this man is guilty of a murder, but 
that he was taken red-handed by hue and 
cry.

II Pollock and Maitland, History of English 
Law, 464-66, 578-80 (2d ed. 1959).

It is this common law rule allowing all 
fleeing felons to be killed, a rule based on 
the ancient concep)t of outlawry, that Ten­
nessee courts have adopted in interpreting 
their statute. These killings were accepta­
ble at common law because only violent 
crimes were classified as felonies, and all 
were punishable by death and subject to 
outlawry The killing of a fleeing felon 
merely accelerated the time of punishment 
The rule of outlawry permitting the killing 
of the fleeing felon did not apply to misde­
meanors and lesser crimes. Lesser crimi­
nals who took flight from their crimes could 
not be killed to prevent their escape. See 
Comment, Deadly Force tc, Arrest: Trig­
gering Constitutional Reviev^, 11 H.^rv 
C.R.-C.L. L. Rei 361, 364-6c; (1976).

It is inconsistent with the rationale of the 
common law to permit the killing of a flee­
ing suspect who has not committed a life 
endangering or other capital offense and 
who we cannot say is likely to become a 
danger to the community if he eludes im­
mediate capture. Those states like Tennes­
see that cite the common law in defense of 
their rule p>ermitting the killing of any flee­
ing felony suspect exalt the form of the 
common law rule over its substance and 
purpose. Tennessee law authorizing the 
use of deadly force against all fleeing felons 
is at odds with the purpwse and function of 
the common law principle because there are 
now hundreds of state and federal felonies 
that range all the way from, violations of 
tax. securities and antitrust laws and the 
pxissessior. of stolen or fraudulently obtain­
ed propierty to murder and crimes of terror. 
A state statute or rule that makes no dis­
tinctions based on the typje of offense or the 
risk of danger to the community is inher­
ently suspiect because it p>ermits an unneces­
sarily severe and excessive police resp>onse 
that is out of proportion to the danger to 
the community.

This line of reasoning concerning the ori­
gin, development and current status of the 
common law rule is similar to the reasoning 
of the Eighth Circuit in its en banc decision



, History of English 
1 ed. 1959).

rule allowing all 
ed, a rule based on 
outlawry, that Ten- 
)ted in interpreting 
lings were accepta- 
icause only violent 
is felonies, and all 
ith and subject to 
of a fleeing felon 
ime of punishment, 
rmitting the killing 
not apply to misde- 
nes. Lesser cnmi- 
n their crimes could 
their escape. See 

i to Arrest: Trig- 
Reifew, 11 H ap.v 
>4-66 n976).
the rationale of the 
he killing of a flee- 
t committed a life 
apital offense and 
■ikely to become a 
y if he eludes im- 
states like Tennes- 
1 law in defense of 
killing of any flee- 
i the form of the 
its substance and 
A authorizing the 
St all fleeing felons 
«e and function of 
? because there are 
nd federal felonies 
from violations of 
rust laws and the 
■audulently obtain- 
id crimes of terror, 
hat makes no dis- 
le of offense or the 
mmunity is inher- 
ermits an unneces- 
ve police response 

to the danger to

loncerning the orj- 
rent status of the­
ir to the reasoning 

en banc decision

GARNER V . MEMPHIS POLICE DEPT.
Cite as 710 F.2d 240 (1983)

245

in Mattis v, Schnarr, 547 F.2d 1007 (8th 
Cir.1976), vacated as moot f>er curiam sub 
nom Ashcroft v. Mattis, 431 U.S. 171, 97 
S.Ct, 1739, 52 L.Ed.2d 219 (1977). There 
the court held a similar state statute in 
Missouri unconstitutional under the Four­
teenth Amendment as a matter of substan­
tive due process. After tracing some of the 
history of the fleeing felon doctrine and 
cataloguing in comprehensive fashion the 
state statutes on the question, as well as 
federal decisions, administrative rules and 
scholarly commentary, the Eighth Circuit 
observ-ed that “the historical basis for p>er- 
mitting the use of deadly force by lav 
enforcement officers against nonviolent 
fleeing felons has tieen substantially erod­
ed," 547 F.2d at 1016. At common law 
“since all felonies . . were punishable by 
death, the use of deadly force was seen as 
merely accelerating the penal process. . . ," 
547 F.2d at 1011 n. 7.

Likewise, in Jones v. Marshal!, 528 F,2d 
132 (2d Cir.1975), the Second Circuit in a 
scholarly opinion by Judge Oakes observed 
that a rule which permits the use of deadly 
force against nonviolent fleeing felons is 
not consistent with the purpose and func­
tion of the common law rule. Although the 
Jones case, like our earlier opinion in this, 
case, insulates the officer fromi federal lia­
bility when, in reliance on a similar state 
statute, he shoots a nonviolent fleeing fel­
on. the court commented:

[T]he common law rule evolved when 
only a few crimes were felonies, and all 
of them involved force or violence 
and were punishable by death or forfei­
ture of lands and goods. See- ALl, Model 
Penal Code § 3.07. Comment 3 at 56 
(Tent, Draft No. S, 19581, (“Such ration­
al justification for the common law rule 
as can be adduced rests largely on the 
fact that virtually all felonies in the com­
mon law period were punishable by 
death”) . . . .  As the scofK of “felony” 
crimes has expanded wholly away from 
the concept of violence which underlay it.e 
common law origin, the use of the felony 
label to justify especially severe police- 
behavior has become increasingly 
strained. As stated by Judge McCree in

his concurring opinion in Beech v. Melan- 
con. 465 F.2d 425, 426-27 (6th Cir.1972), 
cert denied, 409 U.S. 1114, 93 S.Ct. 927, 
34 L.Ed.2d 696 (1973);
“ . . 1 would find it difficult to uphold as 
constitutional a statute that allow'ed po­
lice officers to shoot, after an unheeded 
warning to halt, a fleeing income tax 
evader, antitrust law violator, selective 
service delinquent, or other person whose 
arrest might be- sought for the commis­
sion of any one of a variety of other 
felonies of a t\-pe not normally involving 
danger of death or serious bodily harm,.”
We have thoroughly explored the digests 

and the electronic case retrieval systems, 
and our research discloses only one appel­
late decision discussing Fourth Amendment 
limitations on the use- of deadly force tt' 
capture a fleeing sust»ect. In Jenkins v. 
Avcrett, 424 F.2d 122> (4th Cir.1970), a 
black youth took flight at night. The police- 
officer cornered the- l>o_\ and shot him. The 
District Court dismissed the federal consti­
tutional claim. Ajiiilxnng a Fourth Amend­
ment analysis, the Fourth Circuit in an 
opinion by Judge- Solieloff reversed. Hold­
ing that the Fourth Amendment “shield 
covers the individual's physical integrity.” 
the Cx)urt found a constitutional violation 
because “our plaintiff was subject to the 
reckless use of excessive force.” 424 F.2d 
at 1232.

The only other discussion of the rea,sona- 
bleness of the use of deadly force by police 
in a Fourth Amendment context is that of 
Chief Justice Burger in his dissenting opin­
ion in Bivens v. Six Unknown Federal Nar­
cotic Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 
L.Eki.2d 619 (1971) In Bivens the C-our, 
held that the Fourth Amendment creates a 
direct constitutional tort claim for violation 
of a citizen's right to be free of illegal 
searches of the home and seizures of the 
j>erson. Although Bivens was not a fleeing 
felon case, Chief Justice Burger, in the 
course of his Fourth Amendment analysis in 
dissent, observed:

1 wonder what would be- the judicial re­
sponse to a police- order authorizing ‘shoot 
to kill' with resfiect to every fugitive. It



246 710 FEDERAL REPORTER, 2d SERIES

is easy to predict our collective wrath and 
outrage. We, in common with all ration­
al minds, would say that the police re­
sponse must relate to the gravity and 
need; that a ‘shoot' order might conceiva­
bly be tolerable to prevent the escap>e of a 
con^^cted killer but surely not for car 
thieves, pickpockets or a shoplifter. Bi­
vens V. Six Unknown Agents, 403 U.S. 
388, 419, 91 S.Ct. 1999, 2016, 29 L.Ed.2d 
619 (1971) (Burger, C.J., dissenting) (em­
phasis added).

The Sixth Circuit long ago in United States 
V. Clark, 31 F. 710 (6th Cir.1887), expressed 
similar doubts about the validity of a rule 
allowing deadly force against all fleeing 
felony suspects:

Suppose, for example, a person were ar­
rested for petit larceny, which is a felony 
at the common law. might an officer un­
der any circumstances be justified in kill­
ing him? I think not. The punishment is 
altogether toC' disproportionate to the 
magnitude of the offense.

Id. at 713.
[1,2] The Tennessee statute in question 

here is invalid because it does not put suffi­
cient limits on the use of deadly force It is 
“too disproportionate.” It does not make 
distinctions based on “gravity and need” 
nor on “the magnitude of the offense”  Be­
fore taking the drastic measure of using 
deadly force as a last resort against a flee­
ing suspect, officers should have probable 
cause to believe not simply that the suspect 
has committed some felony. They should 
have probable cause also to believe that the 
suspect poses a threat to the safety of the 
officers or a danger to the community if 
left at large. The officers may be justified 
in using deadly force if the suspect has 
committed a violent crime or if they have 
probable cause to believe that he is armed 
or that he will endanger the physical safety 
of others if not captured A statute which 
allows officers to kill any unarmed fleeing 
felon does not meet this standard and is 
therefore invalid.

After oral argument in this case, upon 
motion, the Ckiurt permitted the state of 
Tennessee, through its Attorney General,

William M. Leach. Jr., to intervene 8is a 
party under 28 U.S.C. § 2403(b) for the 
purpose of defending the constitutionality 
of T.C.A. § 40-7-108. The State has filed 
an able brief. It concedes that Tennessee 
courts and law enforcement agencies inter­
pret the statute U> permit the use of deadly 
force against any fleeing felon, whatever 
the felony, “when no lesser means of appre­
hension reasonably appears available.” 
(Brief, p. 5.) The State’s brief argues, how­
ever. that we should not reach the issue of 
whet'ner Tennessee’s rule may be constitu­
tionally applied to a nondangerous felon 
fleeing from a non-violent felony because 
here the officer “could not be certain 
whether there was an accomplice in the 
burglarized house, or in the area, and 
whether the accomplice might tie- armed ” 
(Brief, p. 6.)

[3] This arg-ument almost always per­
mits the officer to shoot to kill. The officer 
will seldom be absolutely certain of the 
situation. The Fourth Amendment resolves 
this problem, however. It requires probable 
csuse—an objective, reasonable basis in fact 
to believe that the felon is dangerous or has 
committed a violent crime. There is no 
evidence to support such a finding in this 
case, although as the state argues, and as 
the District Court found, the officer was 
not certain on this point. The officer knew 
onlj, that he was dealing with a youth who 
had committed a non-violent felony and 
was apparently unarmed. W'e do not have 
to hold the District Judge’s findings clearly 
erroneous in order to reach this result, be­
cause the facts, as found, did not justifv the 
use of deadly force under the Fourth 
Amendment

An analysis of the facts of this case under 
the Due Process Clause of the Fourteenth 
Amendment leads us to a similar result 
Thai clause prohibits any Slate from de­
priving “any person of life, liberty, or prop­
erty, without due process of law.” U.S. 
Const. Amend. XIV. The right to life, ex­
pressly protected by the Constitution, has 
been recognized repeatedly by the Supreme 
Court as fundamental in the due process 
and equal protection contexts. Yick Mb v



lES

ich, Jr., to intervene as a
U.S.C. § 2403(b) for the 

nding the constitutionality 
r-108. The State has filed 
It concedes that Tennessee 
mforcement agencies inter- 
to permit the use of deadly 
ly fleeing felon, whatever 
n no lesser means of appre- 
ably appears available.” 
e State’s brief argues, how- 
ould not reach the issue of 
«e’s rule may be constitu­
te a nondangerous felon 

non-violent felony because 
r ‘‘could not be certain 
vas an accomplice in the 
3e, or in the area, and 
omplice might be armed.”

iment almost always per-
0 shoot to kill. The officer 
absolutely certain of the 
ourth Amendment resolves 
■ever. It requires probable 
ve, reasonable basis in fact 
e felon is dangerous or has 
lent crime. There is no 
Drt such a finding in this

the state argues, and as 
"t found, the officer was 
s point The officer knew 
dealing with a youth who
1 non-\iolent felony and 
narmed. We do not have 
:t Judge's findings clearly 
r to reach this result, be-
found, did not justify the 
orce under the Fourth

he facts of this case under 
Clause of the Fourteenth 
> us to a similar result, 
bits any State from de- 
>n of life, liberty, or prop- 
‘ process of law.” U.S.
V. The right to life, ex- 
by the Constitution, has 
!peatedly by the Supreme 
mtal in the due process 
on contexts. Yick Wo v.

356, 370, 6 S.Ct. 1064, rately states Fourth

GARNER V. MEMPHIS POLICE DEPT.
c ite  as 710 F.2d 240 (1983)

247

Hopkins, 118 U.S 
1071, 30 L.Ed. 220 (1886) (the fundamental 
rights ‘‘to life, liberty and the pursuit of 
happiness”); Johnson v. Zerbst, 304 U.S. 
458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 
(1938) (‘‘the fundamental human rights of 
life and liberty”); Roe v. W’ade, 410 U.S. 
113, 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973) 
(right to life protected by Fourteenth 
Amendment when fetus becomes viable).

[4. 5] When a fundamental right is in­
volved, due process requires a state to justi­
fy any action affecting that right by dem­
onstrating a compelling state interest Roe 
V. Wade, supra: Mattis v. Schnarr, 547 F.2d 
1007, 1019 (8th Cir.1976) (en banc). Laws 
which infringe on fundamental rights must 
be ‘‘narrowly drawn to express only the 
legitimate state interests at stake.” Roe v. 
Wade, supra. The law challenged here is 
not so narrowly drawn. Cenainly there are 
state interests in law enforcement served 
by this law which allow police to shoot all 
fleeing felons. Those interests are compel­
ling when the fleeing felon poses a danger 
to the safety of others. We do not consider 
these interests sufficiently compelling to 
justify the use of deadly force to protect 
only property rights

As the Eighth Circuit pointed out in 
striking down a similar law:

We find nothing in this record . to 
support the contention of the state that 
statutes as broad as these deter crime, 
insure public safety or protect life. Felo­
nies are infinite in their complexity, rang­
ing from the violent to the victimless. 
The police officer cannot be constitution­
ally vested with the power and authority 
to kill any and all escaping felons, includ­
ing the thief who steals an ear of corn, as 
well as one who kills and ravishes at w ill. 

Mattis V. Schnarr, supra 547 F.2d at 1019- 
20 (footnote omitted). Where, as here, hu­
man life is the right at stake, a statute that 
sweej)s as broadly as this one violates due 
process of law and must be struck down.

The principles and distinctions we have 
enunciated here have been cast in the form 
of a rule by the American Law Institute in 
the Model Penal Code, a rule which accu-

Amendment limita­
tions on the use of deadly force against 
fleeing felons:

The use of deadly force is not justifiable 
unless (i) the arrest is for a felony, 

and (ii) the person effecting the arrest is 
authorized to act as a peace officer or is 
assisting a person whom he believes to be 
authorized to act as a peace officer; and 
(iii) the actor believes that the force em­
ployed creates no substantial risk of inju- 
r>- to innocent fiersons; and (iv) the actor 
believes that (1) the crime for which the 
arrest is made involved conduct including 
the use or threatened use of deadly force; 
or (2) there is a substantial risk that the 
person to be arrested will cause death or 
serious bodily harm if his apprehension is 
delayed.

Model Penal Code § 3.07(2)(b) (Proposed 
Official Draft. 1962).

Our holding here under the Fourth 
Amendment is not inconsistent with our 
holdings in Wiley i'. Memphis Police De­
partment, 548 F .^  1247 (6th Cir.1977), and 
Beech v. Melancon, 465 F.2d 425 (6th Cir. 
1972), or the three judge District Court 
opinion in Cunningham v. Ellington, 323 
F.Supp, 1072 (W.D.Tenn.l971), in all of 
which youths were killed by the Memphis 
police while fleeing from the commission of 
a burglary. In each of those cases the 
Tennessee statute was drawn into question 
under the “cruel and unusual punishment” 
clause of the Eighth Amendment and under 
the Fourteenth Amendment as a matter of 
substantive due process. In none of these 
cases was a Fourth Amendment question 
raised, discussed, mentioned or decided 
Fourth Amendment considerations were not 
argued. Mbreover, in each of the cases the 
narrow question before the court was 
whether the police officer who shot the 
fleeing boy was entitled to a good faith 
privilege against liability based ufK)n his 
reliance upon the Tennessee statute. In 
each case the court held, just as we held in 
our previous decision in this case. Garner v. 
City of Memphis, supra, that the officer i.=: 
insulated fromi personal liabiiitv b\ a gcK>d 
faith privilege which entitles him to relv



248 710 FEDERAL REPORTER, 2d SERIES

upon the Tennessee statute. This is the 
ratio decidendi of each of those cases. In 
those cases it was unnecessan.' to reach the 
constitutionality of the statute in order to 
decide the question of the officers’ immuni­
ty, and in any event, no Fourth Amendment 
question was raised in any of the cases.

III.
[6] In his opinion of July 8, 1981, Judge 

Wellford held that although Owen v. City 
of Independence, 445 U.S. 622, 100 S.Ct. 
1398, 63 L.Ed.2d 673 (1980), precludes the 
city of Memphis from claiming immunity 
based on the good faith of its police offi­
cers. that opinion left ofien the question 
whether the City could claim, immunity for 
its good faith reliance on a facially valid 
state law in enacting City police regula­
tions. Because he found no violation of 
Garner's constitutional rights, the Judge did 
not have to answer this question. In light 
of our finding of a constitutional violation, 
we must reach this question; in doing so, 
we hold that there is no good faith immuni­
ty for municipalities under § 1983.

The reasoning underlying the Supreme 
Court’s decision in Owen, supra, precludes a 
municipality’s claim, of good faith immunity 
under § 1983 altogether. Justice Brennan, 
speaking for the Court in Owen, gave two 
major reasons why good faith immunity of 
city officials should not be extended to m,u- 
nicipalities themselves. First he pointed 
out that at common law , which is the source 
of immunities under § 1983, there was no 
good faith immunity for governmental enti­
ties. Id. at 640, 100 S.Ct. at 1410, Sover­
eign immunity at common law was unrelat­
ed to the question of good faith and was 
waived when the government consented to 
suit as it does under § 1983. Immunity for 
discretionary functions, the only other gov­
ernmental immunity at common law, in­
volved concerns of separation of powers, 
unrelated to good faith. Because a munici­
pality has no “discretion” to violate consti­
tutional rights of its citizens, this tradition­
al form of immunity does not come into 
play. There is no common law analogue 
which would suggest that municipalities

have immunity for good faith reliance on 
state law under § 1983.

Second, Justice Brennan discussed the 
public policy considerations which justify 
individual good faith immunity and found 
that they did not weigh heavily in favor of 
governmental immunity. The two consid­
erations are (1) the injustice of forcing an 
individual whose position requires him to 
exercise discretion to bear the cost of his 
good faith reliance on a law or regulation; 
and (2) the danger that the threat of liabili­
ty would deter individuals from executing 
the duties of their offices or even from 
seeking public office. Id at 654, 100 S.Ct. 
at 1417. When a municipality is held liable, 
whether for the actions of its officials, or 
based on its owm reliance on state law, no 
single individual or official must bear the 
cost. The cost is spread among the genera! 
public, which is. ultimately responsible for 
the conduct of its officials. There is little 
danger that individuals will hesitate to 
carry out their duties or accept public of­
fice, when any liability for their reliance on 
state law will be paid from the public fisc.

In a well-reasoned opinion, the Tenth Cir­
cuit sitting en banc, held that good faith 
reliance by a school district on the prior law 
of the circuit provided no independent prcv 
tection from liability for wrongful dismissal 
of a teacher. Bertot v. School District No. 
1, Albany County. 613 F.2d 245, 251 (10th 
Cir.1979). It held that the remedvnng of 
deprivations of fundamental constitutional 
rights must be of primarv concern to courts 
and other governmental bodies. A rule im­
posing liability despiu* good faith reliance 
insures that if governmental officials err, 
they will do so on the side of protecting 
constitutional rights. It also serves the de­
sirably goal of spreading the cost of uncon­
stitutional governmental conduct among 
the taxpayers who are- ultimately responsi­
ble for it. Id. at 252.

Neither the District Judge nor the City of 
Memphis has offered any reason why the 
courts should expand the doctrine of good 
faith immunity under § 1983. The consio- 
erations which prompted the Supreme- 
Court in Owen to deny good faith immunity



aith reliance on

1 discussed the 
s which justify 
mity and found 
ivily in favor of 
Fhe two consid- 
:e of forcing an 
requires him to 
the cost of his 

or regulation; 
threat of liabili- 
from executing 

3 or even from 
It 654, 100 S.Ct. 
ity is held liable, 

its officials, or 
Dn state law, no 
1 must bear the 
long the general 

responsible for 
There is little 

vill hesitate to 
iccept public of- 
their reliance on 
1 the public fisc. 
[1, the Tenth Cir- 
that good faith 
on the prior law 
ndependent pro- 
•ongful dismissal 
hool District No. 
d 245, 251 (10th 
le remedjing of 
al constitutional 
»ncern to courts 
dies. A rule im- 
>d faith reliance 
tal officials err, 
le of protecting 
50 serves the de- 
le cost of uncon- 
conduct among 
mately respxmsi-

e nor the City of 
reason why the 
doctrine of good 
'83. The consid- 

the Supreme 
1 faith immunity

GROSS DISTRIBUTING CO. v. C.I.R.
c ite  as 710 F.2d 249 (1983)

to municipalities for the acts of their offi- 2. Internal Revenue ®=3582 
cials apply with equal force to this case.

Accordingly, the judgment of the District 
Court is reversed and the case remanded for 
further proceedings consistent with this 
opinion.

I  KEY NUMBER s y s t e m ;
L T

GROSS DISTRIBUTING COMPANY, 
Petitioner-Appellant,

V.

COMMISSIONER OF INTERNAL
RE\T;NTE, Respondent-Appellee.

No. 82-1524.

United States Court of Appeals,
Sixth Circuit.

June 16, 1983.

Appeal was Uken from a judgment of 
the United Sutes Tax Court, Simpson, J., 
upholding the Commissioner of Internal 
Revenue’s retroactive declaration that tax­
payer’s pension and profit-sharing plans 
were nonqualified. The Court of Appeals 
held that Clommissioner did not abuse his 
discretion by making disqualification retro­
active where significant, permanent change 
in business had occurred which increased 
participation by prohibited group and re­
duced participation by other employees and 
where taxpayer did not alter its plan U> 
take such changes into consideration

Affirmed.

1. Internal Revenue <*=3582
Taxpayer’s pension and profit-sharing 

plans were nonqualified plans after attri­
tion had resulted in only beneficiary being 
president and sole shareholder who was 
most highly compensated employee 26 
U.S.C.A. §§ 401, 501.

Doctrine of unforeseen circumstances 
did not protect taxpayer’s pension and prof­
it-sharing plans from being disqualified af­
ter attrition had resulted in president and 
sole shareholder being only remaining par­
ticipant where plan was originally extremely 
limited in its coverage and made participa­
tion by new employees very difficult, busi­
ness change to w'hich attrition as attrib­
uted was not temporary fluctuation but 
semipermanent one, and plan was not 
changed to accommodate change in employ­
ees that continued over period of four 
years 26 U.S.C.A §§ 401, 501.

3. Internal Revenue <*=3.582
Commissioner of Internal Revenue did 

not abuse his discretion by making disquali­
fication of taxpayer’s pension and profit- 
sharing plans retroactive where sigmificant, 
permanent change in business had occurred, 
that change increased participation by pro­
hibited group and reduced participation by 
other employees, and taxpayer did not alter 
iUs plan U) Uke such changes into considera­
tion. 26 U.S.C.A. §§ 401, 501.

Martin Welenken. Judith A. Rosenberg 
(argued), Welenken, Himmelfarb & Rosen­
berg. Louisville, Ky., for petitioner-appel­
lant.

Kenneth W. Gideon, Chief Clounsel, I.Pv.S., 
George M. Sellinger, Washington. D.C., 
Glenn L. Archer, Jr., Michael L. Paup, Mi­
chael Roach (argued). Tax Div., Dept, of 
Justice, Washington, D.C., for respondent- 
appellee.

Before MERRITT and WELLFORD, Cir­
cuit Judges, and WEICK. Senior Circuit 
Judge.

ORDER
This is an appeal from a judgment of the 

United Stales Tax Court upholding the 
Commissioner of Internal Revenue s retro­
active declaration that the pension and 
profit sharing plans of petitioner-appellant 
Gross Distributing Company (the Company) 
were non-qualified plans for ceruin years.