Reply Brief for Plaintiff-Appellant on Remand from the US Supreme Court

    No. 81-5605

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

U ) CLEAMTEE GARNER, et al,,
Plaintiff-Appellant,

vs,
MEMPHIS POLICE DEPARTMENT, et al.,

Defendant-Appellees.

Appeal from the United States District Court for the 
Western District of Tennessee 

Western Division

REPLY BRIEF FOR PLAINTIFF-APPELLANT 
ON REMAND FROM THE SUPREME COURT 

OF THE UNITED STATES

JULIUS LeVONNE CHAMBERS 
STEVEN L. WINTER 

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

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

Counsel for Plaintiff-Appellant



No. 81-5505

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, et al.,
Plaintiff-Appellant, 

vs .
MEMPHIS POLICE DEPARTMENT, et al . ,

Defendant-Appellees.

Appeal from the United States District Court for the 
Western District of Tennessee 

Western Division

REPLY BRIEF FOR PLAINTIFF-APPELLANT 
ON REMAND FROM THE SUPREME COURT 

OF THE UNITED STATES

Cleamtee Garner, plaintiff-appellant in this court, 
respectfully submits this short reply to the city's brief of 
July 17, 1985.

(1) There is no Monell issue: The city's brief confirms
our submission that there is no question of the city's liability 
under Monell v. Department of Social Services, 4-35 U.S. 558 (1978). 
The city has conceded liability under Monell, agreeing that its 
policy authorized the unconstitutional action of Officer Hymon. 
City's Brief at 1.

The city's only argument against the entry of judgment 
for Mr. Garner is a claim of qualified good faith immunity for the 
municipality. This argument has no basis in law, has already been 
rejected by this court, and cannot be raised at this time.



(2) Res judicata and law of the case: The city cannot
raise the issue of a putative good faith immunity for a municipality 
because it was already determined by this court in this case and was 
not appealed. Thus, decision on that issue is either res judicata, 
or, at the least, the law of the case.

On the previous appeal, the city raised the identical claim 
of good faith immunity. This court rejected it, entered judgment for 
Mr. Garner, and issued its mandate. Garner v. Memphis Police Depart­
ment , 710 F.2d 24-0, 248-4.9 (6th Cir. 1983). In its petition for a 
writ of certiorari in the Supreme Court, the city did not challenge 
that aspect of this court's decision. The Supreme Court affirmed 
the judgment of this court, remanding for further proceedings.
Tennessee v. Garner, 4-71 U.S. __, 85 L.Ed.2d 1, 17 (1985). In the
analogous context of appellate review of district court judgments:
"If an appeal is taken from only part of the judgment, the remaining 
part is res judicata, and the . . . remand of the case for further 
proceedings does not revive . . . jurisdiction of the unappealed 
portions of the judgment." 1 B Moore's Federal Practice 5T 0.404 
[4.-3], at p. 131.

At the very least, reconsideration is barred by the doctrine 
of "law of the case," which "operates to preclude reconsideration 
of identical issues." Petition of United States Steel Corp., 479 
F . 2d 489, 493-94 (5th Cir. 1973). None of the three exceptions 
to the doctrine -- new evidence at a subsequent trial, intervening

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controlling authority, or manifest injustice -- are present in this 
case; nor does the city urge that any of these exceptions is rele­
vant here. To the contrary, as discussed below, the only new 
decision in the area tends to confirm the controlling authority and 
the prior decision of this court.

(3) There is no good faith immunity for a municipality:
On the prior appeal, this court rejected the city's argument that
there is a good faith immunity for a municipality. The court held
that "the reasoning underlying the Supreme Court's decision in Owen
[v. City of Independence, 4-4-5 U.S. 622 (1980)], precludes a municipality's
claim of good faith immunity under § 1983 altogether." Garner, 710
F.2d at 248.

Review of the Owen decision confirms this court's deter­
mination. Owen rejected the very arguments now asserted by the city.
Owen concerned "the question whether local governments, although not 
entitled to an absolute immunity, should be afforded some form of 
official immunity in § 1983 suits." Owen, 445 U.S. at 524. The 
Eighth Circuit said yes; the Supreme Court reversed. I_d. at 525. In 
Owen, the City of Independence made the same argument now made by the 
City of Memphis: that because the governing constitutional rule had 
not been declared until after the violation,"officials of the City 
. . . could not have been aware of [petitioner's] right" and,
therefore, "[t]he City . . . should not be charged with predicting
the future course of constitutional law." Id. at 534 (quoting the

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Eighth Circuit decision, 589 F.2d 335, 338 (8th Cir. 1978)). The
1/

Supreme Court "disagree[d] with this holding." W .  at 635. "In sum," 
the Court held "that municipalities have no immunity from damages 
liability flowing from their constitutional violations ■. . . ." Id.
at 657,

There is no intervening law that casts any doubt on the 
viability of this controlling authority. To the contrary, the
Court's recent decision in Oklahoma City v. Tuttle, 4-71 U.S. __,
85 L.Ed.2d 791 (1985), refutes the premise of the city's argument.
Thus, the city claims that: "To hold the City of Memphis liable 
herein in damages would be to adopt a rule of strict liability in 
tort, as the concept of fault must be totally ignored to reach such 
a result." City's Brief at 6'. The Supreme Court, however, reaffirmed 
its prior holding in Monell that respondeat superior does not apply and 
"that only deprivations visited pursuant to municipal 'custom' or 
'policy' could lead to municipal liability. This language tracks 
the language of the statute; it also provides a fault-based analysis 
for imposing municipal liability," Tuttle, 85 L.Ed.2d at 801;
(emphasis added; footnote omitted). In the Supreme Court's view.

1/ Thus, the city's, argument that this case is somehow distinguishable 
from Owen must fail. Although we frankly do not understand the rele­
vance of the city's argument that this case is different from Owen 
because Memphis did not promulgate "a totally new policy," City's 
Brief at 6, we note that the policy pursuant to which young Garner 
was killed on October 3, 1974-, had been promulgated only eight months 
earlier on February 5, 1974.

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liability premised on municipal policy is liability based on
fault, even if, as in Owen, the individual municipal policymakers

2/relied in good faith on the prior decisional law.
Finally, there is no manifest injustice here. There have 

been no changes in circumstances since this court's last opinion. 
Moreover, the policy considerations found controlling by this court 
in its prior opinion and by the Supreme Court in Owen continue to 
apply. See Garner , 710 F , 2d at 24.8-4.9,

2/ It is also noteworthy that while the Court discussed the good 
faith defense available to the individual, Tuttle, 85 L.Ed.2d at 
797 & n.l, it adverted to no parallel immunity for municipalities. 
Rather, it discussed only the parameters of the "policy or custom" 
doctrine in its discussion of the meaning of "fault-based" liability.

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CONCLUSION

The briefs on remand demonstrate that there are no legal 
issues on the question of liability to be determined on remand from 
the Supreme Court. Liability is plain; only the amount of damages 
is left to be determined. The court should remand the case to the 
district court with instructions to determine the amount of damages, 
award attorneys' fees under § 1988, and enter final judgment for 
Mr. Garner.

Respectfully submitted,

/t' - V* - * ~JULIUS LeVONNE CHAMBERS 
STEVEN L. WINTER 

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

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

COUNSEL FOR PLAINTIFF-APPELLANT

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CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing 
Reply Brief for Plaintiff-Appellant on Remand have been 
served by placing same in the United States mail, postage 
prepaid, addressed to Henry L. Klein, Esquire, 770 Estate 
Place, Memphis, Tennessee 38117, Clifford D. Pierce, Jr., City 
Attorney, 314-125 N. Mid America Mall, Memphis, Tennessee 
38103, this 23rd day of July, 1985.

Steven L. Winter 
Counsel for Plaintiff-Appellant