Reply Brief for Plaintiff-Appellant

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

NO. 81-5605

CLEAMTEE GARNER, et al.,
Plaintiff-Appellant, 

v s .

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

JACK GREENBERG 
JAMES M. NABRIT, III 
STEVEN L. WINTER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

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.

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

Western Division

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether the use of deadly force to stop an unarmed 

fleeing felony suspect who poses no danger to the arresting 
officer or others amounts to punishment in violation of the 
Due Process Clause;

2. Whether the use of deadly force under these circum­
stances violates the victim's right to life in violation of 
the Due Process Clause because it is not justified by counter­
vailing state interest;

3. Whether Memphis' policy authorizing the shooting of 
non-dangerous fleeing property crime suspects is racially 
discriminnatory;



4. Whether the use of hollow-point, "dum-dum," bullets 
constitutes excessive force in violation of the Due Process 
Clause and is part of a policy and custom of excessive use of 
deadly force by the Memphis Police Department; and

5. Whether these constitutional violations flowed from 
policies and customs of the Memphis Police Department and the 
City of Memphis?

STATEMENT OF THE CASE 
A. The Proceedings Below

This is the second time this case is before this court, and
the sixth time that this court has been asked to consider the use

1/of deadly force by Memphis police officers. This case arose
out of the shooting death seven years ago of Edward Eugene
Garner, a 15 year-old black who took loose change and jewelry
worth a total of $10 from an unoccupied residence. App. 1̂ ,  166 

*/and 169. The basic facts are summarized in this court's prior 
opinion:

On the night of October 3, 1974 a fifteen year old, unarmed boy broke a window and entered an unoccupied 
residence in suburban Memphis to steal money and property.
Two police officers, called to the scene by a neighbor, 
intercepted the youth as he ran from the back of the house 
to a six foot cyclone fence in the back yard. Using a 38- 
calibre pistol loaded with hollow-point bullets, one of the 
officers shot and killed the boy from a range of 30 to 40

1/ Garner v. Memphis Police Dept., 600 F. 2d 52 (6th Cir. 1979); 
Hayes v. Memphis Police Dept., 571 F. 2d 357 (6th Cir. 1978);
Wiley V .  Memphis Police Dept., 548 F. 2d 1247 1247 (6th Cir.
1977); Qualls v. Parish, 534 F. 2d 690 (6th Cir. 1976); Beech v.
Melancon, 465 F. 2d 425 (6th Cir. 1972). See also Cunningham v.
Ellington, 323 F. Supp. 1272 (6th Cir. 1971) (three judge court).
_̂ / Citations are to the Joint Appendix. Because of multiple use 
and repaginations, the page numbers of the Joint Appendix are 
underlined and can be found at the bottom center of the Joint 
Appendix pages.

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feet as he climbed the fence to escape. After shining a 
flashlight on the boy as he crouched by the fence, the 
officer identified himself as a policeman and yelled "Halt." 
He could see that the fleeing felon was a youth and was 
apparently unarmed.[2/] 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.

Garner v. Memphis Police Dept., 600 F. 2d 52, 53 (6th Cir. 1979).
The complaint was filed in April 1975. App. 2 . In a pre­

trial ruling, the district court dismissed the case against the 
Memphis Police Department and the City of Memphis under §1983, 
relying on Monroe v. Pape, 365 U.S. 167 (1961). After a bench 
trial, the court ruled for the defendants on all issues. App.

On appeal, this court affirmed the dismissal of the case 
against the individual defendants based on their qualified, good- 
faith immunity in relying on Tenn. Code Ann. §40-808 which had 
not been held unconstitutional. It reversed and remanded the 
case against the City for reconsideration in light of Monell v. 
Dept, of Social Services, 436 U.S. 658 (1978). It listed four

2/ This was clear in the record before the court. The officer 
testified that: "I'm reasonably sure that the individual was not
armed...." App. 246. At another juncture he said: "I assumed
he wasn't...." App. 658. He further testified that he could see 
the victim's hands, App. 239 & 677, that the victim did not act 
as an armed suspect would, App. 246 & 658, that he would have 
certainly notified his partner if he thought the victim was armed, 
App. 246-47, that he would have taken cover himself, ^ . , and 
that he would not have stood with his back to the light, making 
himself a superior target. App. 658. Viewed against this record, 
the district court's often repeated statement that the officer 
could not know for certain whether the victim was armed, see App.
25 & is, although literally true, totally disingenuou¥7~ Indeed
a finding either that the victim was armed or that the officer 
though so would on this record be "clearly erroneous." Fed. R.
Civ. P. 52(a).

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specific question to be included in the district court's
3/consideration of the case. 600 F. 2d at 54-55.

On remand, the district court first ordered memoranda and 
oral argument on whether plaintiff was entitled to a further 
hearing. App. At oral argument, it requested a further
memorandum from plaintiff on what he would seek to prove at such

These four questions were:
1. Does a municipality have a similar qualified immunity 

or privilege based on good faith under Monell?
2. If not, is municipality's use of deadly force

under Tennessee law to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitu­
tionally permissible under the fourth, sixth, 
eighth and fourteenth Amendments?

3. Is the municipality's use of hollow point bullets 
constitutionally permissible under these provisions 
of the Constitution?

4. If the municipal conduct in any of these respects 
violates the Constitution, did the conduct flow 
from a "policy or custom: for which the city is 
liable in damages under Monell?

Id. at 54-55 (footnotes omitted). Despite the Supreme Court's 
unequivocal decision in Owen v. City of Independence, 445 
U.S. 622 (1980), the district court inexplicably held that 
the availability of the good faith defense to a municipality 
"is in some doubt." App. It reasoned that the city
could rely on the constitutionality of the Tennessee statute.
citing the 

U.S.
Court's decision in City of Newport v. Fact Concerts,

____ ____, 69 L.Ed. 2d 616 (1981), holding that punitive
damages are not available in a §1983 case against a municipality. 
Because appellant reads Owen, supra, as dispositive of the 
good faith issue, it will not be dealth with infra. The 
district court answered the second and thired questions in 
the affirmative. App. ^  Accordingly, it did not
reach the fourth question. App. 62.

This court's second question will be dealt with in 
three parts: Point I, II and III, infra. The third and
fourth questions are explicitly addressed as Points IV and 
V, respectively.

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I hereby certify that two copies of the foregoing completed 
Brief for Appellant 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 /̂. th day 
of February 1982.

CERTIFICATE OF SERVICE

• ’ r -
V  I ^

— tSTEVEN L. WINTER

Counsel for Plaintiff-Appellant



I hereby certify that a copy of the foregoing Reply 
Brief for Appellant 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 8th day of February 1982.

CERTIFICATE OF SERVICE

STEVEN L. WINTER

Counsel for Plaintiff-Appellant