Motion for Leave to File and Brief for the Police Foundation et al. as Amici Curiae in Support of the Respondent-Appellee

    ;■ I

COUNSEL PMESS INC., 
tAST 36... S.MEE,. NEW VO..K NEW

M„s I
In mm

griipitmi: (fliiiio »> "l"-’
( )cr< tlll'H I E3IM, llltl'l

Till". STATK Ol*' Tl*.NNLSSKh,
Ai>i>c'llonl,

V.
C l  TAM I r.l*: r.AUNi:il. us l uil.cr ui.<l ..exl ..f ku. uf 
KDWAIU) EUC.Em-: CAUNEU. « Dcceuscd Minor,

MEMIMIIS l•()IJ(>E I .
CI TY OE MEMPHIS. TENNESSEE.

I’Vetitionvrt,

V.V .
C l EAM TEE CAllN EIE as Eull.cr and next of kin ol 
E P W A iin  E lIC E N E  CAUNEH. a Deceased Minn.,

llvsjtoiuleitl.

I OH nils sixrn ciiuaim
MOT ION l•■OU LI'.AVl'yi'O HIT*, AND  

imilT- KOll > >“ •• l*<>» l'<)^JNJ)AHON. 
lOINI'T) IIY NINI'̂  n a t i o n a l  aiwi 

,n i i :i! L t i(>n a l a s s o c i ^̂ ^̂^
I'OI U'l*' AND (TIIMINAL JUS'lKA**,.,U). rxsloNAi.s. o.i.K o.; ro. k ..

a s s o c i a t i o n s  OT’ I w o  S'I a i l s , uml
■ i m ^ T V O N i n A W I - N I O l i a

I.'VT'CUTIVT'S a s  A M K3 CUUIAT. IN
...■!;^.'nl-^3IKIU^I»ONI)IW.AI33:iJ^

BB _ . ..I ■

!.•

■'■t.



•••1

Of (.'luiiiu'l:
l l u l t l K I  K a SANOK, I'.SQ.

llil l liiiil Avemii:
New Volk, Ni;w Ytiik 11KJI7

Wll.I.IAM josi riisoN,
I'Vank, IIaiiiiis, 

Siiiiivi:i( «< Jacoiison 
(A |iarliu:i.slii|) wliirh iiielmlos 
inofî-iioiiiil (Mil |ioiatioiis) 

Oin! New York I’la/a 
New Yoik, New \oik IO(MM 
(212) 820 H220

run 1.11* l-A(.nvAiiA,
Iliiciii s, llniiiiAiU) & III u>
1201 I’ciiiisylvaiiiu Avr*, N.W.
U';nliiiiKloii. DC. 2(KM)4
M aii(;ai«i;i llnsii Wii.soN, llsy.
W'll SON, Sm IIII «< SllVMOUIl 
-lO.'ri i.iiiilell llotilevaiil 
Soile 100
Si l.ouis, Mhsoori O llOH of Urnnil

N03. 01-10 15
01-1070

IN THE
SIJPUEME COIIKT OE THE HNITEH STATES 

OCTOHEU TEOM, l')04

the state or Te n n e s s e e,
AI‘PELI,AN‘I',

r s :  s s r :
APPE1H.ee .

MEMPHIS POI.ICECITY OF MEMPHIS, ILNNESSl.E,
pI'.T ri' lONEllS ,

OliarONUEUT -

Von THE SIXTH CIHCUIT

i



The police Fooncla t Ion , nine

„aUona. .n.. In.ec.aUnn.l assocU. io.,a ot
,„Uce a„,.«.»ioaV i-stice p . o teas io„a. s .
„.e cMers of poUcc associations of two 
,„tes and thirty-one law entorce«.ent 
chief-eaecutlees herehy ,.owe this Conrt 
for leave to file the accorapanylnn brief

amid curiae.
The Interest of a«.ici Is

pfesented in the acco,.pany Ind hrUf lilLt-
f . f O l  i n  d e t a i l .  Rach Is  an 

o f . a n U a t l o n  or I n d i v i d u a l  p o l i c e  c h i e f  

s s e c n t l v e  d e d i c a t e d  t o  t h e  e f f e c t i v e n e s s  

„ f  f „ e  p o l i c e  and t h e  p r o t e c t i o n  o f  the

basic tl.jhts of cltUens. As such,
a,.I d  are unlrp.ely e„nlpped to prov.de t he

court with both factual Infonaatlon and
aar•̂ iv;e‘̂ that bear onpolicy perspectives

. 1 Issues raised In this case.constitutional Issues

m ot io n FOII to FTLF. DIUF.F

hi

hi‘,1



More specifically, the issue in 

this case is the constitutionality of the 

Tennessee statute, Tenn. Code Ann.
<; 40-HOfl (19 75) permitt i iu j  police officers 

to "use all tlie necessary means to effect 
the arrest" of fleein*j non-violent felony 

suspects. Garner v. Memphis Police 
l)epar tmen t, 7 10 F . 2tl 2 40, 241 (6 th Cir.

1 903). Tl>rouqh long personal ami 
professional experience, amici have 

particularized knowledge or tie- t *w 
enforcement considerations whi.h arise in 

coiuiection with deadly force laws, such as 

the Tennessee stat.ite. hy moau i •.! > I. is

hrief, they seek to bring this knowledge 

to tlie attention of the Court.
counsel for the appellant, the

State of Tennessee, and for the
respondent-appellee. Garner, have

cnsente.) to the fiUoq of this hr lot e..a 
their letters of consent are attache.l.

connse. fhr the ..etitioner, «e».^as foUce 

„e„.rt»ent, c.tv of »e,.phle . Tennessee.

„,s not response, to the request of 
counsel for a»iC for snch consent.

He spe c t fu l l y  submitted.

1̂ 1 rU .// a f• 1'*'̂
W i l l i a m  J o s e p h s o n ,  Esq.
counsel of Record 
Fried, Frank. Harris,

Shrlver *. Jacobson 
(A Partnership which

includes Frofessional
Corpor at ions)

one Nen Vort Plata
Men vork. New fork 10004

(202) 020-6220
attorneys for Amici C u r i a e

August 6 , 1984

U i:i(.' I-

M

!H'T



liMlll-tM
mate o£ Tennessee 
O^nca ot the ALtooav 

Genet a 1
4'jU James llouectson 

l*ackwayNashville. Tennessee
j72iy t>o:̂ 5 

July 11,

„c. si.nvecFt led, Fcank, Hat cl ,
i. Jacobson

One New Yotk Plaza
. v..rk NY 1UUU4 New Yot k . n 1

«e c o M - t . t o _ m ^

Ueat MC. J o s e p b a o n i

This IS in f tequestin^j oui
letter dateo a,» amlcns cntlae
consent to yout «£ JVennessee_^
Nclet hOW penoi.uj In the
Gatne£, No. « uniteu Scales. A--Supreme cour t ot , hereby
Attorney Geneiai 
ytve such consent.

Glncetely,

/^/ W.J. Michael Cody
W.J. Michael Cody 
Attorney General

t, uepoctec



tl-

Aiiyust 1,
•*'> "'‘““r mT' uIUHNew YotK, N.Y. 
t2L2)

i, Jacobson
one New Vock Piaza 
„ U  W<K, Haw VotK 10UU4

Deac MC. Joaepbson;
,.,.u U  to ‘;;'«;:jrGa'‘Hac.

iespon<Ient-aHPal‘«Jj^^^ „e an ai»icus l.t lot 
coiiBenta to police rounilatlon. e
"" ‘'“"f, tne aboee noted case.al

S incecely•

■ .1

CG :

/a/ Steven U. Wiotec 
Steven L*» VJiotec

waiter b. baiiey, Jt- 
Henry b. Klein 
Jerry Smitb iavid E. birenoau.n



1 NOS. '''jVv070

IN 'nM3
SUPREME COURT OF THE UNHEU 

OCTOBER TERM, V9R4

THE S T M e "of TENNESSEE,
A PP El.CANT.

A T y"‘of PETIlPETIIONER^ »

OF

“ t o THE »¥i7 ¥„l SIXTll Cl I.CNIT



'I I lliV'i

Table o£ Authorities..............  ^

interest of Amici......
summary of Argument................
Statement of the Case..--

14
..............................................................

I Laws that authorize the
police to ei«i»loy £ ̂ ee ing
force to apprehend ail ^ ^^ute

r / u ; r o r t r e V u c „
fight crime or to pro 
tiiemse Ives...........

II. A f t  o i  i c e ^ d e p a ^ t m e n r
"p̂ l cT:: a[:d^>ractiUs and 
Till not unduly intrude on 
criminal law enforcement.....

III. Laws that authorize police
use of deadly felony

tjuide police ofticer .......
discretion................

Conclusion..........

11

47

1̂ .3

1



i I

I

TAHI.I: Oi‘ AU’>‘IH)IUTil::S

CASES

Uivens V. Six Unknown Federal Naccotlca
4Q1U.S. 300 ( 1 9 7 U ..........  40

Chimel v. California,
l9 5-u7sT~l5r7T^WT......................
Delaware v. Ftouse, 440 U.S. 640 (1979)-.. 30

Furman v. Georcjla, 400 U.S. 230 (1972).... 41

earner v. Memphis Police Department,
710 F.2d 240 (6th Clr. 1903),........  ^4, 28

Katz V. United States,
309 U.S. 347 (1967).........................  30

Ko lender v. l.awson,
163 S. Ct. 1055 (1903)...................... 3^

Mapp V. Ohio, 367 U.S. 643 (1961).........  30

Payton v. New York, 445 U.S. 573 (1980)... 30

Itochin V. California,
342 U.S. 165 (1952)...........    30

Sibron V. New York, 392 U.S. 40 (1960)---  30

Warner v. Uartfelder, 113 Mich. App. 747,
310 N,W.2d 025 (1902), a p p e a l d e n ^ ,
410 Mich. 906, 342 N.W.ld 520 (1904)...... 23

Woiui Sun V. United States,
I ' T l ^ ^ n i  (1963).........................  30

ti

Pa;Jo

Ame ndme n t i V ....
Amendment .............
Amendment ..................

STATUTES  ̂j

42 U.S.C. S ..................

42 U.S.C. S .................
42 U.S.C. S .............
42 U.S.C. S ....................
42 U.S.C. S .................

. S 40-008 (1975)....Tenn. Code Ann. i

m-llER A U T H Q M H ^

. The U3eo£J3eadli_Jj^
bv Police

unlvotalty <>£ ”*“ o“o.'l4, ...............of crim. justice, Dec.

Brown,
................

K 1 lied 'I’bat Man 18 r 8 ^
...........

iii

36

45

2 3



OrilEU AUTIIOUITIES

f

i

Kvfe. A<lmlnlstcatlve inter-■---- :r-r—  .....
r»». .lllMt

J. Fyfe, A<iiain 1 t»ctaL1 VC
on t>o I ice~snoot Ln<iJĵ l̂scr̂ iî iVi 
Filip I r ical Ex ainTna t ion , / J. tc
J09 (1979)
J. Fyfe, Obsecvatlona on Police Deadly 
Fo tce^ 2 7 Cr iin. & De 11 nQ •
976 ......................... .......
<•. r.ain. Uischarqe of Fireaci«3_ 
poll C Y : m ^ i r n n q  JuaticejrKroi^
Administrative Recjulation -- A 
PosTTIon Paper (Report released 
December 23, 1971 by Oakland 
Police Cliief Charles Gain in 
explanation of a change in 
departmental deadly force policy), 
cited in W. A. Geller t, K.J.
KaF^eiT Split-Second Declsionsi 
Shootings Of i^YLChTcaao_PoUce
(198TF. ............ ..................
W.A. Geller, K.J. Karalea, S £ l ^  
Second Decisions ; Shootings_^
l  oF c r e i g ^ r p O T i i ^ ' *EiTforcement Study Group 19U1)........
G. Hayden, Police D i sc r e t i o n i j r ^  
Use of Deadly Forcej—
StudV of Informatlon Deadlj^
Force Decision Making (1979) 
TFnpuliTTifel paper available at the 
University of New Haven), £ i t ^  U  
I Qh,*rinan. Executon Without Ijia^

l3 Vand. b. Rev. at 95 n.l50 (1900)..
iv

^age

20

37

17-19

35

42-43

.................................

......................................

SsadiY_f°l|2P2i^i l„ J. ryEe,
j t .  App-  ̂ 'piiTTT^ ^ootlngB_iji

...................................... ..

M. M.yec.
m n | d t | | s ^ x 5 T O r T T r : ^ ^  ....

-  H ‘- T '  -„ricrua;
^ o u c r r o u n s s n s i n ^ r i ) ...............

1 code S 3.07(2)(b)
r p r o p o r / o E o c L t  o^^ee ...............

Matton.l

...........

p̂ .je

25

29, 33, 
34

35

35

30



OTIItlll AUTIIOlUTIKS

I’r csideiiL'a Comm isa ton on Law
l̂ iiforceinent and the Admini^cat ton
of Justice,_Task Force Report;
The Police (1967)..................

Program Cuiiimission on Accred Itat ior» 
tor Law Enforcement Agencies, liic., 
Standards For Law Enforcement A»p nc i • o 
The StairnarSs Manual (.)!' tl>>j Law 
Enforcemet\t Aijency Accreditation 
(Aug. 1903)........................
Report of the National Advisory
Comm iŝ s ion on Civil Disorders
(Dantam Books, I960)...... ..............
L. Sl»erman, Reducing Police Gun Use, 
in M. Punch, Control in the Police 
OKjanizat ion 9ff'TAtlanta 191D) . . . ........
Staff Report to the Michigan Civil 
Rigtits Commission (May 18, 1901)........
C. Uchida, L. Sherman, J. fyfe,
Police Shootings and the
Prosecutor fn Los Angeles County;
An EvaluatTon of Operation Rollout 
(Police Foundation 1901)...............
C. IJelman, Varieties of Police Policy;
A Study of Police Po1 icy Regarding 
I lie Use of neadlv Force in Los Angeles 
County, 6 Loy. L.A. L. Rev. 1 (1973) cited 
in U.S. Department of Justice,
A Community Concern; Police Use of 
Deadly Force (1979)......................

vi

21, 22 
30

31-32

22

20

29

40

INTERLST OF AMlCI

The police foundation is a 

ovate, oon-ptoii. os.ai.itat .on 
eetaoLishesi by t,.e .o.<i ioun..at.on in iv70 

„U,i a .aandate to 1...prove tl.e .uailty ot 
a,.e.lca„ poUcln9. U  ..as trai..ed poiice 
eKecutives and »ana<,a.a tnrou.noot t„e 

united States and abroad, and has 
conouot.d and pnbiis,.ed ,„o.e tnan SO 
resea.cb studies and eHpe.i,„ents invoivi,. 

ei.tu.uv every aspect ot poiiCe policy 

and operations.
The police Foundation's research 

publication ot several articles in



I tl •

♦‘S’

i

professional periodicals and in three 
books and monographs. Readings on Police 

Use of Deadly Force (Fyfe ed. 1902); C. 

Milton, J. Ualleck, J. Lardner, G.
Abrecht, Police Use of Deadly Force 

(1977); C. Uchida, L. Sherman, J. Fyfe, 
Police Shootings and the Prosecutor in Loa 

Angeles County: An Fvalnat it>n of •

Operation Rollout (1901). The Police 
Foundation has also served as a consultant 

and tecdinical advisor to the National 
Association for the Advciii.-emcnt oi: volored 

People (NAACP) on a United States 
Department of Justice funded project with 

respect to police deadly force policies 

and practices (Office of Community 
Anti-Crime, Grant No. 0O-TA-AX-OOO4). In 

addition, the Police Foundation is 
presently engaged in a study of police use 

of ileadly force in New York City and 

Ph lladelpliia .
2

The police ExecutWe I.eeeetch

IPEBF) le . OlstOct o( Colu»bU Foruin ( »
non-profit corporation whose membership

consists of police chiefs from the Unite
States and Canada who serve jurlsdlctl

with populations over 100,000. Y
p.aneral members, andpolice chiefs are now gene 

their departments Incl
..i i/'» oersonnet.petceot o( all M o O c a n  police pet

PBBf conducts and publishes ceseatch
of irs memtiershiptesponswe to the needs of

T I* S 0 CVGS
and the cltUeos u.ev serve.
. center for the collection and 
dissemination of information useful in 

improving police effectiveness,
eo-author of the standards on the use of

bv the Commission on deadly force adopted by
. rnr law Enforcement AgenciesAccreditation for haw

(infra at 30-32) .
The police Management Association 

le a non-profit membership organization of 
police managers and executives from

3

8(to ifl

h

it



the United States and ten other 

countries. PMA was Incorporated in the 
District of Columbia in 19fl0, and is 
dedicated to upgrading police management, 

professionalizing police at all levels, 

and assisting police to protect the lives, 

rights, and property of all citizens.
The National Organization of 

Black [.aw Enforcement Executives (Noble) 

is a non-profit organization of 1,000 
professional command-leve1 law enforcement 

officials representing all elements of 

federal, state, and local law
enforcement. It is dedicated to improving 

the quality of criminal jtistice ami police 

services for all citizens thixigliour the 

United States.
NOBLE unanimously adopted a 

resolution in 1980 advocating limiting 
police use of deadly force to the defense 

of an officer's life or that of another 

person. Hesearcli in this area by NOBLE

4

resulted In tl.e publication of a
Or I'll Shoot _!£!!£MQi-nD - or 1 — — « monograph, ------
, , enforcementuf Deadly Fotca_b]Lba>U:--

Offlceta NOBLE baa bean a

;;:::;rot m  t,.. st.ndacda on tbe uae of 
aeadl, fotce adopted b, tbe Co»»lea.on on 

..meditation .In*- at 30-32, and bas 
,„e,ded tecbnlcal aeslatance to tbe NBaCP

nationwide.
nf f'rlminal Justice The Academy Of Criminaj.

. ,a,a-nroflt membership. o ixPISi is a non ptot Sciences (ALJiil
u.BanUatlin Inoo.poeated In Nevada In 

1972. Its membership includes
Imatelv ccLulnal justiceappcoxlmateiy

1 reoresentingeduoatoce and prac..tlonete, cep
. The prime putpose of M  3ball 50 states. i

U  LO fostec excellence In education and

ceaeacch In criminal iuetlce.
^innal Law Enforcement The International

. Auencv lltEIM “ memberahipInst ructors  Agency i
laari in Massachusetts in organlxatlon founded in Ma

5

m

i f e

IM



1976. Its member sh li> Includes USD 

instructors in academia, police 

departments, police academies, state 

tralnlny councils, and allied 
institutions- ILEIA 1s dedicated to the 

Improvement of criminal justice and 

related training and education.
The International Law Enforcement 

Stress Association (ILESA) la a non-profit 

memberstiip organization Incorporated In 

Massachusetts in 1970. Its membership 

Includes 1,200 officials from local, 
state, and federal law enforcement 

agencies, as well as physicians, nurses, 
and social workers. ILESA is dedicated to 

ie<iucing stress among law enforcement 

professionals in order to Instill • more 

professional law enforcement ethic.
The National Association f)i 

Police Planners (NAOPP) is li nt>u pioiit 

membership organization incorporated in 

Missouri in 1902. Its membership

6

InlcludeB 240 fadetal, state, and local 

lav, enforcement planners In the United 
States and abroad. NAOPP Is dedicated to 
the contlnolns effectiveness, Improvement
end professionalization of law enforcement.

The National Black Police

Association (HOPM Is a non-profit
t.marlon of approximately membership organization or app

15,000 officials In federal, state, and

local law enforcement throughout the

united States. NBPA Is dedicated to
Improving law enforcement effectlvenes

end to protecting the lives, rights, and

property of all citizens.
The Reserve Law Officers

Association of America (RldvOA, Is a
non-profit membership organization founded

in 1969. Its membership Includes reserve

deputy sheriffs, auzlllary police, reserve
deputy constables, police reserves, chiefs

Haariffs constables, and law of police, sherltts,
nt officers from 2,500 cities inenforcement otriceia

7



49 states. RLAOA is dedicated to 
increasing law enforcement professionalism 

tlirough training, education, disseminating 
Information, Improving police-coimimnity 

relations, and eliminating use of 

unnecessary force.
The Kentucky Association Of 

Chiefs Of Police and the Utah Chiefs Of 
Police Association are non-profit membership 

organizations representing police chief 
executives in their respective states. All 
are dedicated to the continuing improvement 

and professionalization of policing, and 

to protecting the lives, rights, and 

property of the citizens they serve.
The following are police chief 

executives who join in tills brief as 

individuals:

WilllA'" C. Oannec 
Chief of police 
corpus Christ I, Tex

Keith R. Bergstrom 
Chief of police 
Oak park, lH-
Robert V. Bradshaw 
Chief of police 
Reno, Nev.
Thomas E. Coogan 
Chief of police 
Denver, Colo.
Bernard D. Crooke 
Chief of police 
Montgomery County,

1 j lie: 1 BehanCornellos j •
Chief of police 
BaltlinofO' f.’ounty M<

Anthony V. Bouza 
Chief of police
Minneapolis Minn

Md

John F* Duffy
Sheriff .San Diego County, Cat

Donald G. Hanna 
Chief of police 
Champaign, 111*
Richard A. King 
Deputy county  

Execut i ve for 
public s a f e t y  

F a i r f a x  County,  Va .

Schuyler M. Meyer, I 
Chief of police 
Pompano Beach, Fia.

Jerry Neal 
Chief of police 
Amarillo, Tex.

David Cameron 
Chief of police 
Moscow, ldal>o

David C. Coupet 
Chief of police 
Madison, W is•
Raymond C. Davis 
Chief of police 
Santa Ana, Cal.
Reuben M* G r e e n b e r g  
Chief of police
Charleston, S.C.
Charles Johnston 
Chief of police 
Lakewood, Colo.
William B. Kolender 
Chief of police 
San Diego, Cal.

II George Mapper 
Director of 
public Safety 
Atlanta, Ga.
Thomas J. Nichols 
Chief of police 
Lubbock, Tex.

I



Charles M. Rodriguez 
Chief of police 

San Antonio, Tex.

William K. Stover 
Chief of police 
Arlington County, Va.

John L. Tagert 
Chief of police 
Colorado Springs, Colo.

Robert C. Wadman 
Ch le f of Police 
Omaha, Neb.
Gerald L. Williams 
Chief of police 
Arvada, Colo.

John P. O'Brien 
Slier l f f
Genesee County, Mich.

Daryl Stephens 
Chief of Police 
Newport News, Va.
Charles T. Strobel 
Director of Public 
Sa fety

Alexandr la, Va.
Melvin b. Tucker 
Chief of police 
Tallahassee, Fla.

Robert Wasserman 
Chief of police 
Fremont, Cal.
Hubert Williams 
police Director 
Newark, New Jersey

All amici wish to Improve the

effectiveness of the police and to
safeguard the basic rights of citizens.
The amici are uniquely equipped to provide
II,e court with both factual Information and

policy perspectives that bear on the
constitutional Issues raised In this case.

10

SUMMARY OF ARGUMENT 
After extensive research and 

oonsldec^tlon, .»lc 1 concluded thnt

U „s per»l«ind police oULcere to uee 

deadly totce to apprehend unarmed,
„on-»,olent Oeeln, felony anepects

actually do not protect clt.zena or law 
,„,„rce,.ant o m c e r a .  do not deter crime oz 

.uealate prohlema cauaed hy crime, an. o 

„ot improve the cr Ime-f l,htin. ahllUy o
enforcement a.enciea. Thna. ar.nments

baaed on theae factora would not Juatlfy 

„ee of deadly force a.alnat fleeln. 
„nn-vtolent felony auapecta. Moreover, we 
have concluded that lawa perm.tt.n. uae of 

deadly force In thnae c.rcumatancea are 
,eaponalhle for unneceaaary loaa of life, 

friction between police and the 
nltiea they serve resulting In lesscommunities i

 ̂ and for an undueeffective faw enforcement.
burden upon police offlcefs who must make

3od live with the consequences of hasty

V I



iti'

STATliMl-NT Of Till-: CA-if 

This case involves th«; 

shooting of Edward Eugene Garner by a 
Memphis, Tennessee police officer. At the 

time he was shot. Garner was fifteen years 

old, stood five feet four inches tall, 
weighed between 95 and 100 pounds, and was 

fleeing from the scene of a reported 
burglary. The police officer who shot 

Garner iiaa testified that, while 
approaching the unoccupied house that was 
the scene of the reported crime, he heard a 

screen door slam and saw a figure running 
into the rear yard. In a subsequent search 

of the rear yard, he saw Garner stooping 

next to a six-foot tall cyclone fence at 

the rear of the yard. The officer shouted 
"halt." After pausing momentarily. Garner 

can and sprang to the top of the fence.

The officer, who correctly believed Garner 

to be unarmed, then fired his revolver, 

striking Garner in the right side of the

12

f draped over the top of
head. Garner fell. ^

A died later that night at a the fence, and died ra
hospital. It - 3  later determined that le

U .O ..e ..a .
a , wallet containing two five ring and a walieu

aoU.. o U i c .  tesuae,. ..a.

eued be.— e “
0bbe.wue e.e.e cap.ece an. becanae

1 Chat it was properhe had been trained that
I fleeing felony

under Tenneeaee lae to shoot
suspects in such situations.

h suit -as brought against the

City of Memphis by Garner's father nnde
P .2 U S C. SS 19B1. 1983, 1995, authority of 42 U.S.G.

t,e. and l«. ^

Flahth, and Fourteenth of the Fourth, Elgntn,
h„end™ents to the Constitution. Keeerslng

hhs Olstrlct court lor the Western blstr.ct
the Court of Appeals for the of Tennessee, the goui

Sixth Circuit held that the Tennessee

1 ^

m

j i



permitting police officers to "use all the 

necessary means to effect the arrest of 

fleeing non-violent felony suspects, 
violated the Fourth Amendment and the due 

process clause of the tourteenth 

Arne ndme n t. Garner v. Memptn^_i‘o_Li£g. 
Department, 710 F.2d 240, 241 |6th Clr. 
1903). On March 19, 1904. this .ourt noted 

probable jur IstJ let ion of the appeal by the 

Intervening State of Tennessee In number 

03-1035 and granted the petition for 
certiorari of the Memphis Police Department 

and City In number 03-1070.
ARGUMENT

Appellant argues tliat the Court of 

Appeals judgment should be reversed because 

"the State retains compelling Interests In 

the apprehension of criminals which can 
,ly be served through the_t ruly_effeet lyeon J

[ )OW er of arrest." Brief for Appellant at 7

(emphasis added). Petitioners similarly 

argue that "the Court of Appeals either

14

o .  , a v e  i o s u e e . c U n .  . e U c e n c e  to

co»petlin9 =tat. lotetosts heceln

eCfectlvo l.w enfotco»ent and tl,a
apprahanaion o( ftaa.n, otl»in.U. ■na 
.„,a adoptad taao.a tPa ct.inat and

, a w»lcl ballava thattot patltlonata at 8.
nabla avidanca tndlcataa that tba the available t

pobtto-a intataat In attactWa law  ̂
antotoa»ant ta tnttbatad bv tba dacUton

the court of Appeals.

I LAWS THAT TO^APPREHEND ALLEMPbOV DEAbbY FORCE^TO^
fleeing ability of theCONTRIBUTE t H prqTECT
POLICE TO FIGHT CRin
t hemselves

Tbconqb long pataonal and 
p.otaaalonal aapatlanca. a,a.cl tnow wall 

tba tattlbla coata ol ct l»a to a,.atlcan 

aoclatv and tba dangata It ptaaanta to

law-abiding citizens and to poll
Amid Share the frustration of officers. Amici

I



all law-abiding citizens with our high 

rates of crime and, as police 

professionals and students of police 
o[)eratlons, amici would not argue that 

tills Court should take any action that 
would unreasonably diminish the ability 

of the police to prevent or detect crime, 
to apprehend criminals, or to protect the 

|)ubLlc or themselves. Affirming the 

decision of the Sixth Circuit in Llils 

case, however, as amici urge, will result 
In no diminution of police e f f ei; t i veness .

If expansive use of police ileadly 

force had a measurable effect upon crime 

and public safety, one would expect to 

find some association between the breadth 

of police authority to use deadly force 

and measures of crime and public and 

police safety. One would expect that 

rates of crime and violence would be 

lowest In jurisdictions In which police 
authority to use deadly force was most

16

broad, and one would eapeot that 
jutladlotlone that mote clearly defined 
„„d limited police offlcere' authority to 

uee deadly force would experience 
increased crime rates and decreases In 
the safety of the public and the police.

All the available evidence 

indicates that expansive use of police 
deadly force to apprehend fleeing suspects 

i s  in no way aasoclated with reduced rates 

of crime or with Increased safety of the 

public or the police. For example, In 
1,68, the Oakland. California, Police
Department established an administrative

policy prohibiting use of deadly force to 

apprehend f l e e i n g  auto theft and burglary
Tn a 1971 evaluation of the suspects. In a

effects of that policy, then Police Chief 

Charles Gain reported that-.

:rp“pit‘t!i^ ^he 
r ^ : ? n c t i v e
policies adversely affect
^ 17

I



the arrest rate for 
burglary arui auto theft.
Our own experience in 
Oakland indicates that the 
institution of a policy 
restricting the use of 
deadly force against 
burglars had no effect^ 
one way or the other, upon 
the arrest rate for 
burglary. . • • There is 
no evidence whatever to 
support the contention 
that police authority to 
shoot is a deterrent to 
tlie cotninlsslon of the 
crime. . . .  It cannot be 
demonstrated that police 
firearms policies have had 
any effect, one way or the 
other, on the increase in 
the incidence of crime.

"(Nlot a single 
(police) officer has lieen 
injured, killed or placed 
in jeopardy because of the 
restrictions upon his 
authority to fire."

C. Gain, bisOiarge of 
Firearms Policy;
EffectTng Justice Through 
n,^n.)nistrative Reflation 

Position Paper at 10
j. 25 fReport released
Deceml)er 23, 1971 byliefOakland Police Ch 
Charles Gain in 
explanation of a cliange 
departmental deadly force 

18

in

1 i,-v3 cited in W. A- policy), ^ ^  lurales,

7 7 ^  stud, o£ the efCects of •

„a« York City police Depatt..ent

authorIty to employ deadly lorce age na
a-e. reached slmHaf fleeing suspects

It analy*®*^ 2,926 police findings. It anai.y
ij k-e It repotted thatahootlnn inoldenta. It r po

,„,le»entatlo„ ol the Police Oeparfaen 

regulation -as £ollo-ed by a 7S percen

aaureaa. .«ro™ Y-0 pat - k  to 0.. per 
ueek, in Incldenta In ohlch o m c e r a  
nred nhota at lleelng auspecta oho 
presented no l»„lnent threat to Ule-

ununded by the police decreased by II
percent ,£ro» 3., to y.l weekly,. and the

number oe .atal shootings declined by
. , 6 to l.O weekly,. Y„esepercent (from l-‘ to

had no adverse effect 
declines, however, had

19

'i' I

I



I)'

on rates of crime or arrest rates, 
police Injuries and deaths decreased 

following the directive. J. PyCe. 

 lmlnlstratlve Inteojentlon3_.oiL^^
et.ooMng plsccetlonj__An_Ein|Urical

« *-ion 7 J Cr Im. Just. 309 (1979).P.xamlnatlon, / o. im.
^ study published just last year

of police use of deadly « 1 » " “
similarly repotted that reatrlctlon of 

police shootlno dlacratlon In that city 
oas accompanied by a d.cteaae In police 

oae of deadly force and that there waa no 

effect upon violent crime tataa, attest 

rates, o r  police I n j u r y  and death cates. 

L. Sherman. lleduoin<LioUo^^ 1"

punch, Control ^ i n _ t h e _ ^ ^

Organization 90 (1903).
Amici are aware of no empirical

evidence, reports or studies that
establish a public benefit flo-ind ....

ntoad use of police deadly force.

20

Broad police deadly force

.ctually “or" against the statutes actual y
tKi1 I tv to protect1 respousIbllity rprimary police resp

. I ̂  Whenever 
life and enforce the 1

will citizens, tensions police officers kill cl
ollce and the communities ley

between pollc
l i k e l y  to increase, especially nerve are llkeiy

1 1 a nf persons wlio 
when police take the ve
,res.nt no cl.ar and present danger

others. Consec|uently, Iofficers or other
..fflcult for t h e  pollbecomes more

obtain public cooperation In
efforts to protect l i f e  and to f i g

c r i m e .  P o l i c e  Inability -  o b t a i n

coopatatlon and Information ultimately
t I-1 fV violent.Its In failure to Identifyresults in

sari In further loss of Uto- 
offenders end Enforcement
E E S S l d e l v t l i i a S e ^ --------^

% j,, f* /It't i-®̂  to On occasion, pud
r oollce use of deadly forceInstances of P »viX

O 1



has Included violence and further loss of 

life. Tl»e National Advisory Commission 
on Civil Disorders reported that police 
shootInys were followed by riots In New 
York City In 1964; that the fatal police 

shooting of a young black led to violent 

demonstrations In Los Angeles In 1966; 

that. In 1966, a fatal police shooting of 

an auto thief In Atlanta nearly 
precipitated a riot; and that 1967 riots 

In Tampa were triggered by the fatal 
police shooting of a young black fleeing 

from a burglary. Report of the National 

Advisory Commission on Civil Disorders at 

36, 38 t 42 (1968). In addition, In 

1966, disturbances followed the fatal 
police shooting of a fleeing car thief In 

San Francisco, and a fatal sliootlng In 

St. Ix)uls. President’s Commission on Law 

Enforcement and the Admlnlstratlo_n_t>f

Justice, Task Force Report;__'’H Li^
189 (1967). More recently, f.itol

22

in New York City, Bhootlngs by police m  New
Uirmingham, New Orleans, and Miami

to pubLtc PiBoCe. ana violence.

The primary police
,naponslbUny of pfotectln. U fa and 

nnfofcfn. Law in doat eefoad Oy feducfn, 

of deadly fofce to an absolute 

,.lnl»u» by ptovldlnq »eanln9ful 
,nluellnes fof officef dlsctetlon.

, U l  benefit ffo,. standafds that ate « t e

catefully tailored than tne Tennessee
statute.s. under any circumstances, the

tahlng of a life pfoduces trauma for the

.Slice Officer, h. Cohen. C-JiiiiSii

.i..r Han lU.UOjLliSBB- ̂
K a killing occurs under(lyUO). When soch a kiiii 9

circumstances that ate legally 
justifiable but that subseguently raise 
questions of judiciousness, fairness, and 

.roprlety. that trauma Is bound to be 
increased. baus that authorUe pol.ce to

23



use deadly foice to apprehend all fleelnq 

felony suspects but provide no other 
guidance, encourage such killings and 
expose police officers to unnecessary 
criticism, trauma, and civil liability.

In a real sense, the officer who 

shot Edward Eugene Garner has been 
severely victimized by the statute In 
question on which he based his decision 

to shoot. Over the nearly ten years 
since Garner's death, this officer has 
been publicly criticized and second- 

guessed. The criticism, trauma, and 
liability that have affected the life of 
this officer ate far mote attributable to 

the inadequacy of the laws and rules 
under which he acted than they ate to his

own actions.
The Delaware Police Chiefs 

Council eloquently stated the forces that 

work upon police officers who find 

themselves In situations like that

24

leading to the
death o f  Bdward Eugene

Garneti
The decision to 

:gfi%t‘*rnother°human
b e i n g  lapcobabliity
serious an enforcement
deolBlon • 
officer will oe I The primary

« hllltv of the
police Is that of 
protecting I ^^ctatea 
'thaC°i Lnaldaratlon

o n l y  tha la,al 
aapact of tha oa^ 
deadly from
„,oral the valuea reverence for tne
of life. It 3^^ Interest
therefore, In ^  the
of both the

"'''ffo^ty acceptedthat unlfot  ̂ . govern
firaa Ia"ln tha the use of tit

enforcement ot

j. Klenoskl,
Administrate^Stiti^eupT^Dea«llY_---
1 (May t9
bawB authorizing poUce to

A a w  force to apprehend all employ deadly
„.„ inclode no s I n f«»lonV suspectsfleeing tel y

uch



clear guidelines. Iinleed, they (.lace 

officers who serve under these statutes 

In the terrible position of having to 
live forever with the consequences of the 
Instantaneous decision, made without real 

legislative guidance as to whether and 

when it Is approjprlate to take the life 
of a non-vlolent fleeing felony suspect. 

Thus, laws that authorize police officers 

to employ deadly force to apprehend all 

fleeing felony suspects are likely to 
lead to arbitrariness In the taking of 
life by police officers. This Increases 

the exposure of officers to censure, 
trauma, and civil liability. Conversely, 

because such laws so Inadequately define 

appropriate police behavior, officers who 

refrain from using deadly force will 
always be uncertain that they have acted 
correctly. In either case the long-term 

effects of such laws upon both sets of 

police officers 1s bad for their

26

t̂ fuf tl»e law

and their duties a 
efe,ctlveness and motale

„,l for U'elt general

II
^FFIR^«^NCE WILL BE CONSISTENT 

w i t h h os t POI.rCE bepai.thf.nt 
POE.C.ES ANB PBACTICES ANB N.EE

hot uhbuet intbube on crihinai.

bAW ENFORCEMENT

The state of Tennesaee and the
. . Its police Department

City of Memphis and

court Of Appeafs -places Burdenso.ee and^ 
Unpractical constraints on effective

- Jurisdictional Statement at
enforcement.
7, and that tt -wUl create »uch

1 enforcement
confusion among 1
Officers....- petition f o r  cert, at if.

That is simply nc'̂  The Court of
appeals has adopted a standard that is

..rwable. and not unduly clear, wotkaoie,
21



restclctlve of law enforcement. Before 

an officer uses deadly force to stop a 

fleeing felony suspect, he ot she must 
have “an objective, reasonable basis In 

fact to believe that the felon is 
dangerous or has committed a violent

crime." 710 F.2d at 241.
In fact, the actual practices of

most law enforcement agencies demonstrate 

the practicability of the standard 
adopted by the Court of Appeals. Most 
jurisdictions studied already restrain 

the use of deadly force by police 

officers In a manner that Is as 
restrictive or more restrictive than that 

adopted by the court below. The comn.on 
sense of law enforcement professionals 

across the nation Is that these 
restrictive standards ate workable and do

28

I (enforcement.*not hampec law ento
H.s been a steady move to There has ueeu

! nT^ices of most police The actual pc o fact governed l>ydepartments are policies
municipal  ̂ than state laws.

sea K- T s I i S i l E S r  T

denied. 418 Mich. 9^^^ ^he
gnt agencies have 

local law that are more
deadly P°n the common law andrestrictive than those are
about the standard adopted
consonant f^"^peal3 In this
by the court ®PP th^icilia^ii
C l v U h S 5| I I ^ ^  is
(May 18, J- rue of majorparticularly Although
metropolitan Massachusetts,
Arizona, ^"''^nd Ohio are common lawNew Mexico, aid un Boston,
states, Phoen ' Cincinnati,Alburquerque, Sa deadly force
and D a yt o n  all h shooting“p S u c l L  that would b.r^t ^^31,
In this 1218. (8PP-
lUO, U 30. O » o  the docketed Coott citations ac App*
of Appeals j^mt Appendix
cltetlone .ee to tle^en .̂.eprepared by tne p



restrain the police use of deadly force. 

More than twenty years ago the Model 
Penal Code proposed to restrict police 
authority to employ deadly force against 
all fleeing felony suspects. Model Penal 

Code § 3.07(2) (b) (Proposed Official 

Draft 1962) .
In 1967, the President's

Commission on Law Enforcement ant)
Administration of Justice observed:

Deadly force should be 
restricted to tlie 
apprehension of 
perpetrators who, in the 
course of their crime 
threatened the use of 
deadly force, or if the 
officer believes there is 
a substantial risk tliat 
the person wliose arrest is 
sought will cause death or 
serious bodily harm if his 
apprehension is delayed.

•»
president's Commission on 
Law Enforcement and the 
Administration of Justice,
Task Force Report;The 
Police at 189 (1967).
In 1903, the federally funded

Commission on Accreditation for Law

30

Enforcement Agencies, which is composed
juatcl.l, Ia.Ul.tlve. state and tocaV 

government, academic, and law enforcement 
„presentatlees. adopted the followln-,

model policy and commentary on use of 

deadly force;
1.3.2 
states 
use dea<^ 
the

A written direct j ^
thlTa^ZIIIIIil-^only whendeadly I

officer

in

reasonably 
th^TThilictiori 

]J^fens£]o|j»uii^
i i ncluding the

of any person
of

^FltKTrTtandatd la ^o 
provide officers with 
guidance in the use o
'^ru:tlSn“ 'nd“ro : hi

re?!ntuo-s i r - r f  ̂nlhie
belief," eod "serious 
physich injury- should be 
lnolu.led in the directive.
1 3.3 A written djrec.tiy^
deadTyZIo7ce_^a 1 a
"fleeing

felo^ should not be 
presumed to pose an
^ 31

!l:)



9!

Immediate threat to life 
in the absence of actions 
that would lead one to 
believe otherwise, such as 
a previously demonstrated 
ttireat to or wanton 
dlareyard for human life.

Program Commission on 
Accreditation for Law 
Enforcement Agencies,
Inc., Standards For Law 
Enforcement Agencies! Tt»e 
fitantiards Manual of tne 
r.aw Enforcement Agencĵ 
Accreditation a t 1-12 
jMigTT^nd) nfemphasls In 
or Ig Inal).

These standards were drafted and. 
unanimously recommended to the Commission 

by the International Association of 

Chiefs of police ("lACP”), NOULL:, the 
National Sheriffs' Association and PICRF.

In a United States Department of

Justice-supported study of police deadly
force in 53 American cities with
populations over 250,000, the
International Association of Chiefs of
police reported that, as of I960, 46

police departments (B6.0 percent) had
32

pcomulgated administrative rules that
- p a o v u .  ..eaU.V 

to -«t.et on, t.too,- tOat «oo.
n  oermltted such deadly (7.5 percent) permn-v

A lhat the admlnlsttatl'ieforce, and that
o <5 7 percent) did notpolicies o£ three (5.1 pe

address this Issue.
rsrlv seven in eight of Thus, nearly sevui

.he »alor »uh.clpal police departments in 

.he united States did not permit oOicers 

.o use deadly iorce to apprehend ail 

yelons. K. u.tuUa.

oE_Chlees__of__Poa£« at 161 (ISSH-

.he basis oE its analysis. I6CP
o.d the following guideline oncecommended cne

aae ot deadly torce to eEEect

apprehensions;
oEElcer may use deadly

torce to eEEect thecapture or prevent
escape of a susp 
Cceedom U  reasonably 
believed to represent an 

.hreat oE uraue



bodily haem or death to 
the officer or other 
person(s).
Id. at 164 (emphasis In 

orIgInal).
A 1982 survey of the deadly 

force policies of 75 police departments 

whose chief executives were members of 
PEUF by that organization's staff found 
that 74 prohibited use of deadly force to 

apprehend all fleeing felony suspects.
These statements and the lACP

and PEUF findings regarding the small
number of police agencies adhering to the
rule that deadly force Is permissible to

apprehend all fleeing felony suspects

demonstrate that the law enforcement

community generally considers this
standard reprehensible. Indeed, since

the death of Edward Eugene Garner, the

Memphis police Department Itself has

adopted an administrative policy

prohibiting Its officers from using
34

eo.ee leeuuetione buc. .b t ,e

,„3tene. »e»P..>B - U c e  Oepa.«eoe,

. e . < . e „ v ,

 ̂ r r ^ 45 , c i t e d  i n  d-  e-Vf*'
1919), Jt- W -  -----

. . Online ShoojJLna3_JilBlind Ju8tj^g_------
o f  C r l m .  b .  6 C r l m .  722

Memphis, 73 J- 

(1982)e
vety fo“ P“n «  depact»ents

 ̂ ho s t o p  f l e e i n g
a c t n a U y  u s e  d e a d l y  e o t c e  t o  e P

. o e p e e t e .  O n l y  a e a .a U  » l n o c U y  o l

police eltearm dlBChar,ee natl
, o c  t h e  p u t p o e e  o l  e t o p p l n O  e i e e l n o  

l e l o n y  e n e p e c t e . *  T h i s  o s e  o .  d e a d l y

The el'inres ain9 on that city o
city to c.ty fP''’„i%11.3« in Mew 
policy. hSS ,^!,p,i975)I W.A. Oellec, 
York between i«h_second
K . j .
Esslai2fi|d-rclT§l53^^

 ̂ iqal) (1T» between



force 18 Inelrpnlflcant to the eblllty ot 
the polloe to make felony atteata. For 
enample, between ia69 and 1974. Memphla 
police made mote than twenty-alk thooaand 

arteata for property Crimea. App- I’S’- 
M  the Hemphla police director obaetved. 

■of all atteata how many Involve the oae 
of deadly eotoa, I woold aay It woold be 
lean than one percent, probably leaa than

a half percent.... U K  VO"
boll It down to atteata of felona I think

i'.f
t J

Footnote Continued From Previous Page

(1980) (between 1974-1978, 15% of all 
shootings at black, 9% of all 
shootings at lllspanlcs, and 9% of all 
shootlmjs at whites); M.

DTIiiTtiro^r^tilinJn . ver s I ^ew

Dec. 14, 1982) (7.8% in
between 1975-1978; between 1973 1974, 
4 6% In the District of Columbia, 10% 
In Portland. Ore., but >;).U m
Indianapolis). 36

. v o W d  a t l U  flna U  l e a a  than -  well.

lefa a a y  yooM find U  a mlnote
« t- “ ADP. 957-58. bt . percentage point. PP

"Illn order for theFyfe has observed: HI'*
pntlce to have cleared even 1 percent 

.more, of the non-vlolent felonlea
| b u t 9 l a t y ,  l a r c e n y ,  and a u t o  lar
reported In 1978 throo9h •apprehenaIona

1 t t-hev would have effected by shooting, Y
,ed to increaae the rate at which they

ahot people during that year by at le
f.fty-fold. Doing ao would have reaulte

1 1C 000 fatalities and In appcoxlroately 35,000
- 1 Fvfe, Obse^vajOons70,000 woundlngs.
Kfirre. 27 Crlm. *•Police PeadjxJ:o£ce,

Deling. '1’“"-
i n  applying conatltutlonal 

dlctatea thla Court haa made many
w a substantial. . c .jhich have had  ̂ suuadecisions whicn n®

impact on police policies and procedurea 

,„d have arguably limited t h e

mffectlveness of police operations.

37



E.q. , Payton v. New Yocji, 445 U.S. 573 
(1980) (reatrictinq police authoclty to 

enter residence to make arrest without 
arrest warrant); P e i r c e  v. Prouae, 440 

U.S. 648 (1979) (reatrlctlnq police 

authority randomly to atop motorist);
V. California, 395 U.S. 752 (1969) 

(denyinq police authority to search 
beyond suspect’s body pursuant to 

arrest); Sibron v. New 392 U.S. 40
(1968) (narrowing police authority to 

search a suspect);
389 U.S. 347 (1967) (limiting police 

authority to eavesdrop); Wona_Sun_v^ 

..nired Statea> 371 U.S. 471 (1963) 
(conClnlng police authority to arrest 

without a warrant),
U.S. 643 (1961) (restricting use of 
unreasonably seized evidence); Rochln_v^ 

California, 342 U.S. 165 (1952) (police 

authority to use stomach pump on 

suspect). Most recently, this Court

38

u n c o „ . t l t u t l o n . U V  .

Callfornl. that authocUed pol oa

a»eat pedeatc lana -ho faUed to
to a poUce otOcet ctedthte and

„ U . h l a  Idantmcatlon and to account
V. Lawson,

for their presence. KolilL---- -

103 S. Ct. 1855 (1983).
In all ot these cases, the Court

Has delineated the U « U s  ot police 
authority under the Constitution and has 

alrected police not to e»ploV larger 
practices that had been In -Idespread and 

allsctlee use. follce use ot deadly 
tore, to apprehend tleelno suspects Is 
„„t cemon. hccordlnoly. atflr,.ance of 

tH. decision helou. which protects the 

due process right to life, will not 
.uhstantlally intrude on current police 

policies and procedures. Police 

discretion to use deadly force to 
apprehend a fleeing felon endangers a 
„ote fundamental right -- the rIgh



life -- than any of the police techniques 

that this Court has found prohibited by 

the Constitution.
III. LAWS THAT AUTHORIZE POLICE USE OF 

DEADLY FORCE TO APPREHEND ALL 
FLEEING FEIiONY SUSPECTS FAIL 
ADEQUATELY TO GUIDE POLICE OFFICER 
DISCRETION

Tlie adoption of restrictive 

administrative policies governing deadly 

force In states with laws otherwise 
authorizing police use of deadly force to 

apprehend all fleeing felony suspects Is 

largely dependent upon the Individual 
predilections and philosophies of police 

chiefs. G. Uelraan, Varieties of Police 

Policy; A Study of Police Policy 
p^aardlnq the Use of Deadly Force in Los 

Angeles County> 6 Loy. L.A. L. Rev. 1 

(1973), cited ^  U.S. Department of 
Justice, A Community Concern; Police Use 

of Deadly Force at 80-89 (1979) . Where 

there are no administrative guidelines, 

shooting Is left to the discretion of the

40

individual police officer. The question 
of when police officers are permitted to 

take a l U e  should no more be a matter of
unlimited administrative prerogative or 

ungulded officer discretion than shoul 
the imposition of capital punishment be 

totally at the discretion of local

juries. in F u r m a j ^ ^
238 (1972), this court ruled that the
death penalty may not be Imposed even 
,tter conviction for murder unless the 

legislature has given the sentencing 
authority guidance adequate to eliminate 
arbitrariness and capriciousness. The

at-;*tute at Issue In this case Tennessee statute
gW. s  pollc. on th. street
unbcUled discretion whether to shoot to 

kill eny time a lleelng suspect may haee 
committed some felony. This unfolded 
discretion Is tar less tolerable In a 

„,U-ordered system of criminal justice.

41



There can be little doubt that 

statutes like the one Involved In this 

case lead to arbitrary exercises of 
deadly force. One scholar has conducted 

an experiment In which he presented 
hypothetical fact patterns concerning 

three arrest situations to 25 randomly 
selected police officers In Connecticut, 

a state In which the common law allows 

police to use deadly force to apprehend 

all fleeing felony suspects. Klthough 
all 25 officers were making decisions on 

the basis of the same state law, they 
split almost evenly when asked If they 
would be likely to use deadly force In 

identical situations. G. Hayden, Police 

ntacretlon In the Use of._Peadly_£o£cei 

^  p.np»rtcal Study of_Jnfoj^naU«IL^^ 

n,.adlv Force DecjjjonJlaking. 
(unpublished paper available at the 

university of New Haven), cited In L.

Sherman, E x e c u U o T L W U i ^ ^
42

t .  Re».
Another echo Ur tooiul a 

correlation between one ot .learUy force
end pereonal characterIstlce of the
nttloer baaed on analyata of the reeulta
„e a queatlonnalre administered to U l

patrol officers from two unnamed 
municipal police departments in the 

central south and the midwest. The 
ctflcers were ashed to Identify ci^bt
personal characteristics, and Judwe the

« nf using deadly force mappropriateness of using
. 1 rrollce situations. Atwelve hypothetical police

high degree of agreement among these

officers was found Ih of these
altuatlons. Of the twelfth hypothetical.

 ̂ ' ? polIcrse?Vice;' If^of f Icer
!,:rbten'victim of a felonious
assult, military experlenc .



ill

a -classic fleeing felon situation |ln 

whichl an officer sees and shoots a 
burglar fleeing the scene of his crime,“ 
however, the officers* assessments of the 

appropriateness of using deadly force 
varied significantly with seven of the 
eight personal characteristics analyzed. 
Officers with high educational levels

were significantly less likely than less 

well educated officers to regard shooting 

in the fleeing felon hypothetical as 
appropriate. The study also found that:

Older officers were 
lass likely to agree with 
the use of a firearm to 
apprehend a fleeing 
burglar suspect than 
respondents in other age 
groups. Younger officers
„»ay be in the ^heavy" phase of their
careers as police 
officers. They are moat
likely to be cynical,and deflnlta In
their opinions. They may 
also be the group of 
police officers most 
likely to shoot someone.

44

^1 .. Force by PolicyUse of Deadly j ;oice__ox— -----Brown, yae_oL— —
TralninglH£U£^tlons. ^2 J.

Ofltcersj— Ttainiilil---
— ----- at 139 (19841.
pol. sot. t Admin. Ud-

appellant and Petitionees at^ne

,nat tne decision Seine Invades tSe
penvlnce o. tSe state le.lslatnte.

Is whether the 
r e a l  issue, however. I

1 the Tennesseepolio, u-annested by the

. te la one the Constitution petml Statute IS one
.loot This court should legislature to adopt.

. t h a t  the constitution requiresconclude t h a t  tn«
nationally and factually states to impose ration

oolice discretion to kill based limits on police
plloe to indlotment ot oonvlctlon. los 
„  It has held that le<,lslatoces may no
aele,ate untesttalned dlsctetlon to

vmanltal punishment after impose capital p

conviction.
Even though there are

„ „aoltal punishmentdistinctions between capit
deadly force, the

and polICO “oo o(
n. tai- lustify the breadth distinctions do not justiry



-MBi

of discretion allowed here. Unlike 
capital punishment, police use of deadly 

force does not always kill, because 
officers sometimes miss or only wound 

their tarcjets. But police deadly force 

Is almost always employed before 
adjudication, without careful procedures 

to ascertain actual guilt. The greater 
clsk of error and of Irreparable injury 
warrants tighter control over potentially

lethal public authority.
NO state capital punishment 

statute allowa tot as « c h  atbittatInaaa 
,3 do statutes authotUlnq police deadly 

fotce to apptehend any fleeing felony 
suspect. A decision to execute 
invariably followed a substantial trial 

and IS sublect to extensive review by 

appellate courts and by the state 
executive before It results In death. 
There Is no such check on the wisdom of a 
police officer's decision to use deadly

46

force to apprenend a fleeing felony 
suspect. AS in this case, tne decision 

to employ deadly force is typically made 

in a dark alley or rear yard. It is 
almost always quick, unilateral, and 
irreversible. Thus, the Constitution 
spouid constrain tne permissible scope of 
official discretion where the legislature 

authorizes police use of eKtra-:,uoicial 
deadly force. The Tenpessee statute does

not satisfy this test.

CONCLUSION
Thirteen years ago Chief Justice

Burger wrote;
From time to time judges 
nave occasion to pass on 
regulations governing 
police procedures. I 
wonder what would be the 

' judicial response to a
' police order authorizing

"snoot to kill'* with 
respect to every 
fugitive. It is easy to 
predict opr collective 
wrath and outrage. We, m
common with all Pational 
minds, would say that the 
police response must



relate to the gravity and 
need, that a "ahoot" order 
inlytit conceivably be 
tolerable to prevent the 
escape o£ a convicted 
killer but surely not for 
a car thief, a pickpocket 
or a shoplifter.
Q t vena v. 3tx Unknowti 
P ^ e r al Narcotics Aqen^^,
403 U.S. 388, 419 (lyUT
(dissenting opinion).
Amici agree wholeneactedly with 

tne Chief Justice. The Tennessee statute 

in question ia. In fact, an authorization 

to shoot to kill car thieves, 
pickpockets, and snoplifters, and it 

cannot be justified as a legitimate 
exercise of public authority. We urge 

affirmance of the judgment of the Court

of Appeals.
Respectfully submitted,
jij
William Josephson, Esq.
Counsel of Record
Fried, Frank, llacris, Shriver

i, Jacobson ,  ̂ „(A partnership which includes 
.professional corporations)

One New York Plaza 
New York, New York 10004 
(212) O2O-U220Attorneys cor Amici Cutlae