Motion for Leave to File Brief on Remand and for Oral Argument

    May 3, 1985

Hon. John P. Hehman 
Clerk
U.S. Court of Appeals

for the Sixth Circuit 
Room 516Post Office & Courthouse Building 
Cincinnati, Ohio 45202

Re: Garner, et al. v. Memphis Police Department 
No. 81-5606

Dear Sir:
Enclosed please find for filing a motion for leave to 

file brief on remand and for oral argument in the above- 
mentioned case.

Thank you for your attention to this matter.
Sincerely,

Steven L. Winter

SLW:aa 
Enel.

NINETY NINE HUDSON STREET (212) 219-1S00 NEW YORK, N.Y 10013



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

No. 81-5605

CLEAMTEE GARNER, et al.,
Plaintiff-Appellant, 

vs.
MEMPHIS POLICE DEPARTMENT, et al.,

Defendant-Appellees.

ON REMAND FROM THE SUPREME COURT 
OF THE UNITED STATES

MOTION FOR LEAVE TO FILE BRIEF 
ON REMAND AND FOR ORAL ARGUMENT

J. LeVONNE CHAMBERS 
STEVEN L. WINTER 

99 Hudson Street 
16th Floor
New York, New York 10013

WALTER L. BAILEY, JR.
Suite 901 
Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Counsel for Plaintiff-Appellant



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

No. 81-5605

CLEAMTEE GARNER, et al.,
Plaintiff-Appellant, 

vs.
MEMPHIS POLICE DEPARTMENT, et al.,

Defendant-Appellees.

ON REMAND FROM THE SUPREME COURT 
OF THE UNITED STATES

MOTION FOR LEAVE TO FILE BRIEF 
ON REMAND AND FOR ORAL ARGUMENT

Cleamtee Garner, plaintiff-appellant in this Court, 
respectfully moves for leave to file a brief on remand and 
requests that the court set a schedule for briefinq and oral 
argument. - In support of this motion he shows the following.

1. On March 27, 1985, the Supreme Court of the 
United States rendered its opinion in Tennessee v. Garner 
No. 83-1035 and 83-1070, affirming the judgment of this 
Court in Garner v. Memphis Police Department, No. 81-5605, 
710 F.2d 240 (6th Cir. 1983). The judgment of the Supreme 
Court issued on April 27, 1985.



2. Although it affirmed the judgment of this Court 
on the constitutional question, the Supreme Court held only 
that the shooting of 15 year-old Edward Eugene Garner violated 
the Fourth Amendment and that the Tennessee statute is invalid 
insofar as it purported to authorize this shooting. It
did not reach the question of the liability of the City of 
Memphis. Rather, it noted —  as did this Court on the first 
appeal, 600 F.2d 52, 54-55 (6th Cir. 1974) —  that the city's 
liability "hinges on Monell v. New York City Department of 
Social Service , 436 U.S. 658 (1978)." Garner, Nos. 83-1035 
and 83-1070, Slip Op. at 20. In part because of "the absence 
of discussion of this issue by" this Court, i^., the Supreme 
Court remanded "for further proceedings consistent with 
[its] opinion." Id. at 21.

3. This Court has twice considered this case and 
from numerous other appeals, is familiar with the deadly 
force practices of the City of Memphis. The uncontroverted 
record evidence in this case establishes beyond a doubt that 
the policy of the City of Memphis authorized, approved, and 
actuated the shooting of plaintiff's son. Plaintiff-appellant 
requests leave to submit a brief on this issue identifying 
the uncontroverted record evidence—  ̂ and setting forth the 
legal principles that entitle him to relief of law under 
Monell.

*/ The brief will in addition explain why, given the posture 
of the case in the Supreme Court, that court was "uncertain" 
about "the state of the record" on the Monell issue. Garner, 
Slip Op. at 21. As we will explain more fully in our brief, the court was referring to the record on a different claim 
under Monell than that now befcpre this Court on remand from
the Court's constitutional ruling.

- 2 -



For the foregoing reasons, plaintiff-appellant 
respectfully moves the court to set a briefing schedule and 
set the case on the calendar for oral argument.

This 3rd day of May, 1985.
Respectfully submitted.

I it r t
J. LfeVONNE CHAMBERS 
STEVEN L. WINTER 

99 Hudson Street 
16th FloorNew York, New York 10013

WALTER L. BAILEY, JR.
Suite 901 Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff-Appellant

- 3 -



CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing 
Motion for Leave to File Brief on Remand and For Oral 
Argument has been served by placing same in the United 
States mail, postage prepaid, to Henry L. Klein, Esquire, 
2108 First Tennessee Bank Building, Memphis, Tennessee 
38103, this 3rd day of May, 1985.

Steven L. Winter 
Counsel for Plaintiff-Appellant