Garner v. Memphis Police Department Court Opinion

    11

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m-nor. PJaintiff-Appellant.

‘ ‘t i r ' l f f S t t J u t ' V f  7"'0'’pellec.s. ‘ Pamtic.s. llefendant.s-Ap. 

No. 77-1089.

United States Court of Appeals, 
hiixth Circuit.

Argued Feb. 14, 1979 

decided June 18, 1979

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was entitled to assert, as complete defense, 
a (juahfied “good faith” jirivilege or immu­
nity from liability for constitutional claims 
based on his reliance on Tennessee law 
which allows an officer to kill a fleeing 
felon rather than run the risk of allowing 
him to escape a|iprehension, and (2) liability 
of city under federal civil rights statute 
depended u|)on resolution of (juestions as to 
whether municipality had a (jualified immu­
nity or privilege based on good faith, 
whether municipality’s use of deadly force 
under state law was constitutionally per­
missible, whether municipality’s use of hol­
low j)oint bullet was constitutionally per­
missible and whether officer’s conduct 
flowed from a “ jiolicy or custom” for which 
municipality could be liable in damages.

Case against city remanded for recon­
sideration.

MEMl’ IllS I'OIJCK DEIT., ETC.
Clio as 600 r.2(l .'■>2 (1 97!)) 5;]

U.S.C.A. § 11W.T IJ.S.C.A.Const. Amends 4 
b. H, 14; T.C.A. § 40-808.

 ̂ Jack Greenberg, Charles Stephen Ralston, 
Steven I,. Winter, New York City, Walter’ 
D. Railey, Jr., D’Army Bailey, Memphis, 
I'enn., Avon N. Williams, Jr., Nashville, 
Tenn., for plaintiff-apjiellant.

Henry L. Klein, Menijihis, Tenn., for de- 
i'crulants-appolleos.

* *

Before EDWARDS, Chief Judge and 
l i v e l y  and MERRITT, Circuit Judges.

1. Civil Rights ©=>13.8(4)

A city policeman who shot and killed a 
youth as he esca|)ed from the scene of a 
burglary was entitled to a.ssert, as com])lete 
defen.se U> civil rights action, a qualified 
“good faith” jirivilege or immunity from 
liability for constitutional claims ba.sed on 
his reliance on 'i'ennes.see law which allows 
an officer to kill a fleeing felon rather than 
run the risk of allowing him to escape ap­
prehension. 42 U.S.C.A. § 1983; U.S.C.A. 
Const. Amends. 4, 8, 14; T.C.A. § 40-808.

2. Civil Rights 13.8(3)

Liability of city under federal civil 
rights statute for shooting by city police­
man of youth as he escaped from scene of 
burglary dej)ended upon resolution of que.s- 
Uons as U> whether municipality had a qual­
ified immunity or privilege based on good 
faith, whether municipality’s u.se of deadly 
force under state law was constitutionally 
permi.ssible, whctlKir municip.-dity’s use of 
hollow point bullet was constitutionally per­
missible and whether officer’s conduct 
flowed from a "policy or custom” for which 
municipality could he liable in damages. 42

MERRI1 1, Circuit Judg'e.

On the night of October 3, 1974, a fifteen 
year old, unarmed boy broke a window and 
entered an unoccupied residence in subur­
ban Meni|)his to steal money and pro|)erty. 
Two police officers, called to the scene by a 
neighbor, intercepted the youth as he ran 
from the back of the house to a si.x foot 
cyclone fence in the back yard. Using a 
38-calibre pistol loaded with hollow |)oint 
bullets, one of the officers shot and killed 
the boy from a range of 30 to 40 feet as he 
climbed the fence to e.scape. After shining 
a flashlight on the boy as he crouched by 
the fence, the officer identified him.self as a 
lioliceman and yelled “ Halt.” He could see 
that the fleeing felon was a youth and was 
apparently unarmed. As the boy jumped to 
get over the fence, the officer fired at the 
upper part of the body, as he was trained to 
do by his superiors at the Memphis Police 
Department. He shot because he believed 
the boy would elude capture in the dark 
once he was over the fence. The officer 
was taught that it was proper to kill a 
fleeing felon rather than run the risk of 
allowing him to escape.

Ihe District Court dismissed the suit of 
decedent’s father lirought against the City 
under 42 U.S.C. § 1983 (197b) to recover 
damages for wrongful death cau.sed by 
claimed constitulional violations of the 
fourth, eighth and fourteenth amendments.
In accordance with then existing law, the 
District Court held that a city is not a



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“ purson” subject, lo suit under § 1983; but 
Monroe r. Pape, 3(>5 U.S. 167, 81 S.Cl. 473, 5 
L.Ed.2(1 492 (1961), in which the Supreme 
Court so ruled, was overruled on this point 
last term by the case of Monell v. Depart­
ment o f Social Services, 436 U.S. 658, 98 
S.Ct. 2018, 56 L.Ed.2d 611 (1978). Follow­
ing a bench trial, the District Court also 
dismi.ssed the case against the officer and 
his superiors holding, in accordance with 
our decisions in Beech v. Melancon, 465 E.2d 
425 (6th Cir. 1972), cert, denied, 409 U.S. 
1114, 93 S.Ct. 927, 34 L.Ed,2d 696 (1973); 
Qualls V. Parrish, 534 E.2d 690 (6th Cir. 
1976); and Wiley v. Memphis Police De­
partment, 548 E.2d 12-17 (6th Cir.), cert, 
denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 
78 ('1977), that the officers acted in good 
faith reliance on Tennessee law which al­
lows an officer to kill a fleeing fedon rather 
than run the risk of allowing him lo escape 
apprehension.

11| We conclude that the District Court 
did not err in finding that the individual 
defendants acted in good faith reliance on 
Tenn. Ccxle Ann. § 40-808 which provides 
that an officer “ may use all the necessary 
means to effect the arrest” of a fleeing 
felon. As our [jrevious cases, cited above, 
point out, Tennessee courts have interjiret- 
ed this sUitute as a codification of the com­
mon law rule allowing officers to kill flee­
ing felons rather than run the risk of |)er- 
mitting them to escape ajiprehension. This 
rule applies to fleeing felons suspected of 
property crimes not endangering human 
life, as well as life-endangering crimes, and 
to felons who ix)se no threat of bodily harm 
to others, if not apprehended immediately, 
as well as felons who may bo dangerous to 
others if left at large. Applying the (juali- 
fied “good faith” privilege or immunity 
from liability for constitutional claims, as 
announced in our previous decisions cited 
above, we affirm lhal poi'tion (d‘ Ihe Dis- 
tricl. Court's jiidgmeiit dismissing the case 
against the individual defendants.

|21 We reverse and remand the case 
against the City, however, for reconsidera­
tion by the District Court in light of Monell 
V. Department o f Social Services, supra. 
Monell holds that a city may be held liable 
in damages under § 1983 for constitutional 
deprivations that result from a “ policy or 
custom” followed by the city. 436 U.S. at 
694 and n. 66, 98 S.Ct. 2018.

Our previous decisions do not establish 
the constitutionality of Tenn. Code Ann. 
§ 40-808, permitting a city to authorize its 
officers to use deadly* force against a flee­
ing felon, nor have they established the 
constitutionality of the city’s use of hollow 
point bullets. Although there is discussion 
of the constitutionality of the Tennessee 
statute in the Beech, Qualls and Wdey 
cases, supra, all three of those cases dealt 
with actions against individual officers un­
der § 1983, and not liability based on the 
“ policy or custom” of a governmental enti­
ty. Those cases held that it “ would be 
unfair" to imjHise liability on an officer 
“ who relied, in good faith, upon the settled 
law of his state that he relieved him from 
liability for the particular acts performed in 
his official capacity.” Qualls v. Parrish, 
supra at 694, quoted in Wiley v. Memphis 
Police Department, supra at 1253. The es­
sential holding of those cases was that an 
individual officer has a ([ualified privilege 
or immunity from liability for constitution­
al claims based on good faith performance 
of his duties in accordance with statutory or 
administrative authority, a holding subse­
quently a[)proved by the Sujiremo Court in 
Butz r. Economou, 438 U.S. 478, 496-508, 98 
S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although 
the qualified immunity developed in those 
cases insulates the officers and officials 
from personal liability in this case, as the 
District Court held, the following questions 
in the c:use against the city are still 0[)cn 
under Monell:

1. Does a munieip.'dil V have a similar 
ipialifieil immmdiy or pj'ivilege based 
on good faith under Monell'! '

I. .See (li.scns.sion ol this <|nc‘.sUon ni /./e(e V. Of.v ol l'rovi<lence, l•,,Sll|)p, .'iH.'i, .'iKH (D.K.I.
1978).



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If not, is a municipality’s use of dead­
ly force under Tennessee law to ca|)- 
lure allegedly nondangerous felons 
fleeing from nonviolent crimes consti­
tutionally permissible under the 
fourth, sixth, eighth and fourteenth 
amendments? ^

Is the municipality’s use of hollow 
point bullets constitutionally permis­
sible under these provisions of the 
Constitution? ^

I f  the municipal conduct in any of 
these respects violates the Constitu­
tion, did the conduct flow from a 
"policy or custom” for which the City 
is liable in damages under M onclll*

We remand the case against the City to 
the District Court for reconsideration in 
light of Moncll, including consideration of 
these questions.

HS V, ItllNFltO 
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4.

I  *£YNUMOtBSVST[M';f -- ----------- ^

2 . See f;ener:iHy Coker v. Georgia, 433 U..S. 584, 
97 S.Ct. 252.3, 5.3 L.gd.2ci 653 (1977); In^raharn 
V. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 
L.Ed.2d 711 (1977); Gregg v. Georgia. 428 U.S. 
153, 96 S.Ct. 2909, 49 l..Ed.2d 859 (1976); Fur­
man V. Georgia. 408 U.S. 238, 92 S.Ct. 2726, 33 
L.Ed.2d 346 (1972); Landrum v. Moats, 576 
F.2d 1320 (8th Cir.), cert, denied. 439 U.S. 912, 
99 S.Ct. 282, 58 L.Ed.2d 258 (1978); Mattis v. 
Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated 
as advisory opinion sub nom. Ashcroft v. Mat­
tis. 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 
(1977); Jones v. Marshall. 528 F.2d 132 (2d Cir. 
1975); Day, Shooting the Fleeing Felon: State 
of the Law, 14 Crim.L.Bull. 285 (1978); Com­
ment, Deadly Force to Arrest: Triggering Con­
stitutional Keview, I 1 Harv.C.R.— C.1..L Rev 
361 (1976).

3. See generally I’lm.si, Does Your I’ohee Force 
Use Illegal Weapons:’ /\ Configuralive Ap­
proach to Decision Integrating Inteln.ition.il 
and Domestic Law, 18 llarv.Int'l L.J. 19 (1977).

IJNIII'^I) S'l'ATKS of America, 
Plaintiff-Appellee,

v.

Andrew KKNFKO, Defendant-Appellant.

No. 78-r>482.

UniUid States Court of Appeals, 
Sixth Circuit.

Argued April 9, 1979.

Decided June 19, 1979.

Rehearing and Rehearjng En Banc 
Denied July 31, 1979.

Defendant was convicted before the 
United States District Court for the East­
ern District of Michigan, Southern Division, 
Philip Pratt, J., of income tax evasion and 
failing to file, and he appealed. The Court 
of Appeals, Cecil, Senior Circuit Judge, held 
that: (1) the prosecutor’s supposed improj)- 
er argument concerning expression of per­
gonal o])inion of guilt, misstatements of law 
and fact and shifting burden of proof did 
not rise to level of plain error; (2) court 
properly instructed that .jury could consider 
reasonableness of defendant’s explanation 
as to his increase in net worth as bearing on 
his consciousness of guilt; (3) in prosecution 
for income tax evasion and failure to file, 
admission of alleged hearsay testimony of

4. On the question of “ policy or cu.stom,'' police 
records are said to show, according to reports 
we do not find in this record, that during the 
preceding eight years Memphis police officers 
killed seventeen fleeing burglary suspects; thir­
teen were black and five were youths. Accord­
ing to the same reports, Memphis police offi­
cers killed twenty-four individuals during this 
period in connection with crimes of violence or 
in self-defense; they attempted to use deadly 
force on 177 occasions. 114 of which were in 
connection with property crimes. See the orig­
inal certified appellate record, document 45, in 
Wiley V. Memphis Police Dep't. 548 F.2d 1247 
(Cth Cir.), cert, denied, 4.34 U.S. 822, 98 S.Ct. 
65, 54 E.Ed.2d 78 (l!)77), as summarized in 
Comment, Deadly Force to Arrest: Triggering 
Consliiution.il Review, II I lai v.C.R. —C,l. |„ 
Rev. .itil, .f(i2 I I .  4 (1976); Re|)orl. I'eiiii. Adv.
( oiiimittee to U..S. Civ. Rip.hls (liiiiim'ii. Civic 
(-risis— Civil Challenge: Pohce-Coniiiiuiiity Re­
lations in Memphis 81 (1978).

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