State of Tennessee's Suggestion for Rehearing En Banc

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, et al. ,
Plaintiff- 
Appellee ,

MEMPHIS POLICE DEPARTMENT,
Defendant- 
Appellant .

NO. 81-5605

STATE OF TENNESSEE'S SUGGESTION FOR REHEARING EN BANC

JERRY L. SMITH 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-6439

OF COUNSEL:
WILLIAM M. LEECH, JR. 
Attorney General & Reporter

□rncE or the
A t t o r n e y  Ge n e r a l  o f  T e n n e s s e e

4 5 0  JA M E S  R O B E R T S O N  P A R K W A Y  
N A S H V IL L E , T E N N E S S E E  3 7 2 1 9



INTRODUCTION

Comes now the State of Tennessee, by and through 
the undersigned Assistant Attorney General of the State of 
Tennessee, pursuant to Rule 35, Fed. R. App. P. and Sixth 
Circuit Rule 14, and respectfully requests a rehearing en 
banc of the Court's decision of June 16, 1983, which re­
versed the judgment of the United States District Court for 
the Western District of Tennessee, Western Division. That 
judgment upheld the constitutionality of Tenn. Code Ann.
§ 40-7-108, generally referred to as Tennessee's "fleeing 
felon" statute.

The undersigned expresses a belief based on a 
reasoned and studied professional judgment, that the panel 
decision is contrary to the following decision of the United 
States Court of Appeals for the Sixth Circuit and that con­
sideration by the full Court is necessary to secure and main­
tain uniformity of decisions in this Court: Wiley v. Memphis
Police Department, 548 F.2d 1247 (6th Cir. 1977).

I express a belief, based on a reasoned and studied 
professional judgment, that this appeal involves one or more 
questions of exceptional importance:

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whether Tenn. Code Ann. § 40-7-108, which allows 
police to use all necessary means to effect the arrest of 
a fleeing felony suspect, including deadly force when all 
lesser means of apprehension have been exhausted, violates 
any provision of the United States Constitution because it 
may authorize the use of deadly force against what ulti­
mately is determined to be an unarmed suspect fleeing what 
ultimately is determined to be a non-violent felony.

JERRY L . /  SÎ ITH 
Attorney of Record for 
t*he State of Tennessee

OF COUNSEL:

WILLIAM M. LEECH, JR. 
ATTORNEY GENERAL OF THE 
STATE OF TENNESSEE

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This case involves a civil rights action brought 
by Cleamtee Garner on April 8, 1975, in the United States 
District Court for the Western District of Tennessee pur­
suant to 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988 and 
28 U.S.C. §§ 1343(3) and 1331, seeking redress for the 
fatal shooting of plaintiff-appellant's son, Edward Eugene 
Garner on October 3, 1974, by an officer of the Memphis 
Police Department. Named defendants in the lawsuit were 
the Memphis Police Department, the City of Memphis,
Tennessee, Wyeth Chandler, Mayor of the City of Memphis,
Jay W. Hubbard, Director of Police of the City of Memphis 
and E. R, Hyman, Police Officer of the City of Memphis.

The suit alleges that the defendant Hyman violated 
the constitutional rights of Edward Eugene Garner when Hyman 
shot and killed Garner in an attempt to apprehend him as 
Garner fled from a private residence at 739 Vollintine, 
Memphis, Tennessee. The remaining defendants were joined on 
the grounds that their failure to exercise due care in the 
hiring, training and supervision of defendant Hyman made them 
equally responsible for Garner's death and all defendants were

PRELIMINARY STATEMENT

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sued on the grounds that their use or authorization to use 
the "hollow point" bullet further caused the deprivation 
of Garner's rights under the Constitution and Laws of the 
United States.

Trial was held on August 2-4, 1976, before the 
Honorable Harry W. Wellford, sitting without the interven­
tion of a jury. At the conclusion of the plaintiff's proof 
on August 4, 1976, the district court granted a directed 
verdict for defendants Hubbard and Chandler, and a partial 
directed verdict as to the City of Memphis and the Memphis 
Police Department with respect to hiring practices.

On September 29, 1976 the district court found in 
favor of all defendants on all issues. On appeal a panel 
of this Court affirmed the judgment of the district court 
dismissing the case against the individual defendants. How­
ever the case was remanded as against the City of Memphis 
for reconsideration in light of Monell v. Department of 
Social Services, 436 U.S. 658 (1978). See: Garner v.
Memphis Police Department, 600 F.2d 52 (6th Cir. 1979).

On remand the district court entered an order in 
favor of the City of Memphis and determined inter alia that

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Tenn. Code Ann. § 40-7-108 met constitutional muster.

Plaintiff-Appellant again appealed to this Court. 
After oral argument of the second appeal the Clerk of this 
Court notified the Office of the Attorney General of 
Tennessee that Tenn. Code Ann. § 40-7-108 was under consti­
tutional attack. Despite the provisions of 28 U.S.C.
§ 2403 (c) no prior notice of such an attack had been afforded 
the Office of the Attorney General of Tennessee. Pursuant 
to 28 U.S.C. 2403(c) the State of Tennessee, through the 
Office of the Attorney General, filed a motion to intervene 
in this case for the purpose of defending the constitution­
ality of Tenn. Code Ann. § 40-7-108. This Court granted the 
State's motion and permitted the State to file a brief on 
the issue.

In an opinion delivered by the Honorable Gilbert 
S. Merritt and concurred in by the Honorable Nathaniel R. 
Jones, and Damon J. Keith, this Court determined that Tenn. 
Code Ann. § 40-7-108 was violative of the Fourth and Four­
teenth Amendments to the United States Constitution.^

■̂ The copy of the opinion received by the undersigned 
attorney indicates that the Honorable George Clifton Edwards, 
Jr., Chief Judge, participated in the opinion, however, the 
undersigned has been informed this is a misprint and that 
the Honorable Nathaniel R. Jones actually sat on the panel.

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The panel found that in so far as Tenn. Code Ann. § 40-7- 
108 would permit the use of deadly force against a non- 
dangerous fleeing felony suspect fleeing a non-violent 
felony, the statute permitted an unreasonable and excessive 
seizure of the person. The case was remanded for further 
proceedings consistent with the opinion.

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ARGUMENT

THERE IS NO AUTHORITY FOR THE PROPOSITION THAT THE FOURTH 
AMENDMENT PRESCRIBES THE LEVEL OF FORCE NECESSARY TO 
CAPTURE A FLEEING FELON; AND THIS COURT HAS PREVIOUSLY 
UPHELD THE CONSTITUTIONALITY OF TENN. CODE ANN. § 40-7-108

In the instant case the panel finds that Tenn.
Code Ann. § 40-7-108 is unconstitutional because it may 
be construed so as to allow the use of deadly force to 
apprehend a non-dangerous fleeing felony suspect who is 
fleeing a non-violent crime. According to the panel this 
would authorize an excessive use of force and amount to an 
unreasonable seizure of the suspect in violation of the 
Fourth Amendment's prohibition against unreasonable searches 
and seizures. In the opinion of the panel the use of a 
deadly force by police meets Fourth TUnendment standards only 
upon a finding of probable cause on two (2) levels. First, 
police must have probable cause to believe that a felony has 
been committed and that the person fleeing committed it, 
i.e. probable cause to arrest. Secondly, in order to justify 
the use of deadly force police must have probable cause to 
believe the fleeing suspect is dangerous or has committed a 
violent crime. See: Opinion p. 12.

The State agrees with the panel's observation that

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there is a dearth of authority for the proposition that 
the Fourth Amendment imposes limits on the use of deadly 
force to capture a fleeing felony suspect. See; Opinion 
p. 10. The panel indicates that the case of Jenkins v. 
Averett, 424 F.2d 1228 (4th Cir. 1970); however, is such 
a case. However, in Jenkins officers unreasonably "seized" 
the fleeing Jenkins by shooting him because they had no 
probable cause to arrest him using any level of force. The 
very attempt to apprehend Jenkins without probable cause to 
interfere with his freedom of movement was the constitutional 
violation subjecting the officer to liability. It is beyond 
cavel that the Fourth Amendment prohibits this type of con­
duct. However, the Jenkins case did not, with all due re­
spect to the panel, indicate that once probable cause to 
arrest has been found the officer must then have probable 
cause to believe the fleeing suspect is dangerous or has 
committed a violent crime before resorting to deadly force 
to effect the arrest, once all lesser means of apprehension 
have been exhausted.

Thus, the State is unaware of any precedent for 
the holding of the panel that the Fourth Amendment prescribes 
not only the level of knowledge necessary to arrest a suspect, 
but also the reasonableness of the manner in which the arrest

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is accomplished. The only case of which the State is aware 
that has stricken as unconstitutional a statute similar to 
Tenn. Code Ann. § 40-7-108 is Mattis v. Schnarr, 547 F.2d 
1007 (8th Cir. 1978). However, in Mattis the Missouri 
statute was found to be violative of the Fourteenth Amend­
ment's due process clause; no analysis was made of the 
statute under the Fourth Amendment.

In Wiley v. Memphis Police Department, 548 F.2d 
1247 (6th Cir. 1977); this Court, it is respectfully sub­
mitted, considered the constitutionality of Tenn. Code Ann.
§ 40-7-108 [formerly § 40-808] and found the statute to meet 
constitutional muster. This Court stated:

The Eight Circuit is the only Court 
to our knowledge which has ever held that 
such a statute, which is so necessary even 
to elementary law enforcement, is uncon­
stitutional. It extends to the felon un­
warranted protection, at the expense of 
the unprotected public.

548 F.2d at 1252.

Thus, the opinion of the panel in the instant case 
is at odds with the decision of this Court in Wiley, par­
ticularly that portion of the instant opinion finding that 
Tenn. Code Ann. § 40-7-108 does not comport with Fourteenth

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due process requirements. Opinion, pp, 12-13. In Wiley 
this Court further stated:

The majority opinion of the Eighth 
Circuit in Mattis does not suggest how 
law enforcement officers are to make the 
on-the-spot constitutional analysis called 
for by its proposal and still react quickly 
enough to meet the exigencies of an emergency 
situation. How can a police officer even 
know, reasonably or otherwise, whether the 
felon will use force against others if he is 
not immediately apprehended? It is clearly 
the perogative of the state legialature to 
decide whether such restrictions or the use 
of force are consonant with public policy.

548 F.2d at 1253.

Although the above-quoted statement was written 
in regards to a Fourteenth Amendment due process argument 
it is equally applicable to an attack on Tenn. Code Ann.
§ 40-7-108 under the Fourth Amendment.

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CONCLUSION

For the reasons stated herein, the appellee, 
the State of Tennessee, respectfully suggests that this 
Court grant a rehearing en banc of the instant case.

Respectfully submitted.

JERRY L/ SMITH 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-6439

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing 
Brief has been forwarded by first-class, U.S. mail, postage 
prepaid to Messrs. Jack Greenberg, James M. Nabrit, III, 
and Steven L. Winter, Suite 2030, 10 Columbus Circle, New 
York, New York 10019; and Mr. Henry L. Klein, 2108 First 
Tennessee Building, Memphis, Tennessee 38103, this the 
/Z it day of June, 1983.

'r—

JERRY Ly/SMITH ^
Assistant Attorney General

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