Correspondence from Winter to Clerk Re: F.R.A.P. 28 (j) Supplemental Citations

    egal efense
N A A C P  L EGAL  D E F E N S E  A N D  E D U C A T I O N A L  F UND,  I NC.  

U Z l d  10 C o lu m b u s  C irc le , N e w  Y o rk , N .Y . 1 0 0 1 9 *  (2 1 2 ) 5 8 6 -3 3 9 7

December 23, 1982

Hon. John P. Hehman, Clerk 
United States Court of Appeals 
for the Sixth Circuit 
U.S. Post Office & Courthouse Bldg.
Cincinnati, Ohio 45202

Re: Garner v. Memphis Police Department,
Case No. 81-5605

Dear Sir:
Pursuant to your letter of December 10, 1982, 

and F.R.A.P. 28 (j), I am filing four copies of 
this letter containing a list of supplemental 
citations. The citations listed below are 
organized according to the point numbers in 
appellant's opening and reply briefs, 
respectively.

POINT I
1. Jacobs V .  City of Wichita, 531 F. Supp. 

129, 131 (D. Kansas 1982) - The court 
recounts the common law history of the 
fleeing felon doctrine as a mere 
acceleration of the penal process.

2. McKenna v. City of Memphis, 544 F. Supp. 
415, 416 (W.D. Tenn. 1982) —  Memphis 
police officers continue to use deadly 
force excessively under the 
circumstances.

3. Guyton v. Phillips, 532 F. Supp. 1154,
1164 (N.D. Cal. 1981) —  Officers have 
responsibility to approach and use 
techniques to apprehend a suspect that 
obviate the need for deadly force.

4. Giant Food, Inc. v. Geraldine Scherry,
51 Md. App. 586, 444 A.2d 483 (1982) - 
When fleeing suspect poses no immediate 
danger, officer should employ alternatives 
including summoning help rather than use 
deadly force.

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The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People althoogh it 
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget



Hon. John P. Hehman, Clerk 
December 23, 1982 
Page 2

POINT II
Ayler v. Hopper, cited at pages 33-35 of 
appellant's opening brief, is now reported 
at 532 F. Supp. 198 (M.D. Ala. 1981).
Jacobs V .  City of Wichita, supra, 531 F. 
Supp. at 132 —  Use of deadly force 
against unarmed fleeing felony suspect 
leaving the scene of a burglary violates 
the fundamental right to life protected 
by the Due Process Clause.
Guyton v. Phillip, supra, 532 F. Supp. 
at 1164 —  Excessive use of force 
resulting in death constitutes a deprivation 
of fundamental rights.
Mogin, The Policemen's Privilege to 
Shoot a Fleeing Spect; Constitutional 
Limits on the Use of Deadly Force, 18 
Am. Crim. L.Rev. 533 (1981) —  Use of 
deadly force against fleeing felony 
suspect who poses no immediate danger to 
officers or others violates the Due 
Process Clause unless the crime he is 
suspected of committing is punishable by death.

POINT III
Fyfe, Blind Justice: Police Shootings
in Memphis 73 J. of Crim. L. and Crimin.
707 (1982) -- Goldkamp's Belief Prospective 
I, that "police have one trigger finger 
for whites, and another for blacks," 
found to be true in Memphis Police 
Department based on data for the years 
1969-1976.

POINT V
10. Hays V .  Jefferson County, Ky., 668 F.2d 

869 (6th Cir. 1982) —  Court adopts 
Leite standard for finding of municipal 
liability.



John P. Hehman, Clerk 
December 23, 1982 
Page 3

11, McKenna v City of Memphis, supra, 554 
at 417 and n,4 —  Persistent

police officers in
F. Supp.
failure to discipline 
the face of knowledge of their 
propensity for improper use of 
constitutes official custom or 
policy; Memphis police officer 
known shooter not disciplined.

force 
de facto 
who was

Reply brief - POINT II
12

13.

Haislah v. Walton, 676 F.2d 208, 215 
(6th Cir. 1982) —  Use o f deadly force 
against unarmed fleeing felony suspect 
still an open question in the Sixth 
Circuit.
McKenna v. City of Memphis, supra, 544 
F. Supp. at 416 n.2 —  Despite opinions 
in Garner and Haislah, district judge 
below continues to read prior opinions 
of this court as unconditionally 
approving the constitutionality of the 
Tennessee fleeing felon doctrine —  
including its application to unarmed 
fleeing suspects.

Respectfully submitted.

Steven L. Winter
SLW/ac
cc: Henry L. Klein, Jr.

Walter L. Bailey, Jr.