Court of Appeals Case Summary and Decision

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No. 81-5605

UNITED STATES COURT OF APPEALS
FOR THE SIXTH QRCUIT

Cleamtee Garner,
Plaintiff-Appellant,

Memphis Police Department, et al., 
Defendants-Appellees.

On Appeal from the 
United States District 
Court for the West­
ern District of Ten­
nessee.

Decided and Filed June 16, 1983

Before: E dwards, Chief Judge; Keith and Merritt, Circuit 
Judges.

Merritt, Circuit Judge. The principal question before us 
concerns the constitutionaUty of Tennessee’s fleeing felon 
statute, T.C.A. §40-808 (1975) under the Fourth, Eighth 
and Fourteenth Amendments. The Tennessee statute, as in­
terpreted by the District Court and by other federal and state 
courts, authorizes police officers to use deadly force in order 
to capture unarmed suspects fleeing from nonviolent felonies. 
The statute reads: “If . . . the defendant . . . either flee or 
forcibly resist, the officer may use aU the necessary means to 
effect the arrest.” In the present action for wrongful death 
under 42 U.S.C. § 1983 (1976), a Memphis police officer shot 
an unarmed boy fleeing from the burglary of an unoccupied



house. We hold the Tennessee statute unconstitutional be­
cause it authorizes tuinecessarily severe and excessive, and 
therefore unreasonable, methods of seizure of the person under 
the Fourth and Fourteenth Amendments.

2 Garnets V. Memphis Police Department No. 81-5605

I.

On the night of October 3, 1974, a fifteen year old, tmarmed 
boy broke a windovv̂  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. After shining a flashfight 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 rmarmed. As the boy 
jiunped to get over the fence, the officer fired at the upper 
part of the body, using a 38-calibre pistol loaded with hollow 
point bullets, as he was trained to do by his superiors at the 
Memphis Pohce Department. He shot because he befieved 
the boy would elude capture in the dark once he was over 
the fence. The officer was taught that it was proper under 
Tennessee law to kill a fleeing felon rather than run the risk 
of allowing him to escape. The youth died of the gunshot 
wound. On his person was ten dollars worth of money and 
jewelry he had taken from the house.

The District Court dismissed the suit brought by decedent’s 
father against the City under 42 U.S.C. § 1983 (1976) to 
recover damages for wrongful death caused by claimed con­
stitutional violations of the Fourth, Eighth and Fourteenth 
Amendments. In aceordance with Monroe v. Pape, 364 U.S. 
167 (1961), the District Com't held that a city is not a 
“person” subject to suit under § 1983. Before we heard the 
first appeal, Monroe was overruled on this point by Monell 
V. Department o f Social Services, 436 U.S. 658 (1978). The



No. 81-5605 Garner v. Memphis Police Department

District Court also dismissed the case against the officer and 
his superiors holding, in aecordance with our decisions in 
Beech  v. Melancon, 465 F.2d 425 (6th Cir. 1972), cert, denied, 
409 U.S. 1114 (1973); Qualls v. Parrish, 534 F.2d 690 ( 6th 
Cir. 1976); and Wiley v. Memphis Police Department, 548 
F.2d 1247 (6th Cir.), cert, denied, 434 U.S. 822 (1977), that 
the ofiBcers aeted in good faith reliance on Tennessee law 
which allows an officer to kill a fleeing felon rather than run 
the risk of allowing him to escape apprehension.

On appeal, a panel of this Court eonsisting of Chief Judge 
Edwards and Judges Lively and Merritt affirmed the District 
Court’s holding that the individual defendants were protected 
by the doctrine of qualified immunity beeause they acted in 
good faith reliance on T.C.A. § 40-808. Garner v. City of 
Memphis, 600 F.2d 52 (6th Cir. 1972). We reversed and 
remanded the case against the City of Memphis, however, 
for reconsideration by the District Court in fight of Monell 
V. Department o f Social Services, supra. Because Monell 
held that a city may be liable in damages under § 1983 for 
constitutional deprivations that result from a “policy or cus­
tom” followed by the city, 436 U.S. at 694 and n.66, we in­
structed the District Court to consider the following questions;

1. Whether a munieipality has qualified immunity or 
privilege based on good faith under Monell?

2. If not, is a municipality’s use of deadly force under 
Tennessee law to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitutionally 
permissible under the Fourth, Sixth, Eighth and 
Fourteenth Amendments?

3. Is the munieipality’s use of hollow point bullets con­
stitutionally 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?

600 F.2d 52, at 54-55.

On remand, Judge Wellford ordered memoranda and oral 
argument on the issue of whether the trial should be re­
opened. By order dated February 29, 1980, he denied further 
hearings and dismissed the case on the merits, holding that 
the constitutional claims had aheady been fully adjudicated. 
Because there had been no constitutional violation, the hold­
ing of Monell that cities could be liable for violations occur­
ring pursuant to a policy or custom of the city did not 
require a different result. Plaintiff’s motion for reconsidera­
tion was granted and he was allowed to submit further briefs 
and make an offer of proof. The Judge considered the offer 
of proof and once again ruled against plaintiffs in a written 
opinion dated July 8, 1981. He held that the wisdom of a 
statute permitting the use of deadly force against aU fleeing 
felons was a matter of policy for the legislature rather than 
the judiciary, and that the Tennessee statute was not un­
constitutional on its face, nor as applied by the pohce officer 
in this case.

Addressing the question of the City’s good faith immunity, 
the District Court held that Owen v. City of Independence, 
445 U.S. 622 (1980), prevented the city from claiming im­
munity from hability based on the good faith of its agent. 
Nevertheless, it found that it was still an open question 
whether the City might claim immunity if the City itself 
was relying in good faith on the Tennessee law as interpreted 
by the federal and state courts. Judge Wellford did not 
believe it necessary to address the constitutionafity of the 
use of hollow point bullets, because he found that there was 
no causal connection between the use of hollow point bullets 
and Garner’s death.

4 Garner V. Memphis Police Department No. 81-5605



No. 81-5605 Garner v. Memphis Police Department

II.
We consider the Fourth Amendment question first because, 

unhke the other more general constitutional provisions raised, 
the Fourth Amendment is specifically directed to methods of 
arrest and seizure of the person. The question under the 
Fourth Amendment is one of first impression in this Circuit. 
The narrow question presented is whether a state law author­
izing the killing of an unarmed, nonviolent fleeing felon by 
pohce in order to prevent escape, constitutes an unreason­
able seizure of the person.

The Fourth Amendment provides for the “right of the 
people to be secure in their persons . . . against unreasonable 
. . . seizures.” The Amendment also provides that where 
a warrant is necessary it must describe “the person to be 
seized.” When an officer “accosts an individual and restrains 
his freedom to walk away,” the Fourth Amendment comes 
into play. Terry v. Ohio, 392 U.S. 1, 16 (1968). “[A] person 
is ‘seized’ . . . when, by means of physical force or a show 
of authority, his freedom of movement is restrained.” United 
States V. Mendenhall, 446 U.S. 544, 553 (1980). Killing the 
individual is the most decisive way to make sure that he 
does not “walk away,” a method “unique in its severity and 
irrevocabihty.” Gregg v. Georgia, 428 U.S. 153, 187 (1976). 
It is plainly a “seizure” of the “person.” The question there  ̂
fore becomes whether this method of capturing suspects is 
“reasonable” under the Fourth Amendment.

Tennessee courts have interpreted their statute regarding 
the capture of fleeing felons to create a jury question on the 
issue of the “reasonableness” and the “necessity” of using 
deadly force. But the “reasonableness” and “necessity” of 
the officer’s action must be judged solely on the basis of 
whether the officer could have arrested the suspect without 
shooting him. Purporting to follow the rule developed in 
England at common law allowing the use of deadly force 
against suspects fleeing from any felony, Tennessee courts



have interpreted their statute to mean that once it is deter­
mined that the officer probably could not have captured the 
person without firing, the jury should find the police action 
reasonable under the statute. Scarbrough v. State, 168 Tenn. 
106, 110 (1934) (oflBcer may kill automobile thief “as a last 
resort” to prevent escape and the question of “necessity of 
killing” is one for jury); see also to the same eflrect Love v. 
Bass, 145 Tenn. 522 (1921) and State v. Bowles, 598 S.W.2d 
821 (Tenn. App. 1980) and the cases cited in those opinions. 
It makes no difference that the felony was nonviolent or that 
the felon was unarmed and not dangerous to the physical 
safety of others.

It is true that the common law permitted the kilfing of 
a felon who resists arrest without regard to the nature of the 
felony. But it did so at a time when all of the small number 
of felonies then in existence were capital crimes. Since any 
felon at large would be hanged or otherwise executed if 
taken and tried, he was an “outlaw” who was automatically 
dangerous and posed an imminent threat to the physical 
safety of others. The common law, however, prohibited the 
use of deadly force against a fleeing suspect whose crime 
did not require execution and who, therefore, was not likely 
to become a dangerous outlaw.

Pollock and Maitland describe as follows the felony at 
common law and the method by which a felon could be 
taken:

But the very ease with which the king’s peace spread 
itself until it had become an all-embracing atmosphere 
prevented a mere breach of that peace from being per­
manently conceived as a crime of the highest order. . . . 
It was otherwise with felony. This becomes and remains 
a name for the worst, the bootless crimes.

6 Garner v. Memphis Police Department No. 81-5605

The specific effect of the ‘words of felony’ when they 
were first uttered by appellors, who were bringing 
charges of homicide, robbery, rape and so forth, was



to provide that, whatever other punishment the appel­
lees might undergo, they should in all events lose their 
land. . . .  At all events this word, expressive to the com­
mon ear of all that was post hateful to God and man, 
was soon in England and Normandy a general name 
for the worst, the utterly ‘bootless’ crimes. . . . The 
felon’s lands go to his lord or to the King and his 
chattels are confiscated. The felon forfeits life or mem­
ber. If a man accused of felony flies, he can be out­
lawed .

We have now to speak of the various processes which 
the law employs in order to compel men to come before 
its courts. They vary in stringency from the polite 
summons to the decree of outlawry. . . .

When a felony is committed the hue and cry should 
be raised. . . . The neighbors should turn out with the 
bows, arrows, knives, that they are bound to keep and, 
besides much shouting, there will be hornblowing; the 
‘hue’ vdll be ‘horned’ from vale to ville.

Now if a man is overtaken by hue and cry while he 
has still about him the signs of his crime, he will have 
short shrift. Should he make any resistance, he will be 
cut down.

No. 81-5605 Garner v. Memphis Police Department 7

There is hardly room for doubt that this process had 
its origin in days when the criminal taken in the act 
was ipso facto  an outlaw. He is not entitled to any 
‘law,’ not even to that sort of ‘law’ which we allow to 
noble beasts of the chase. Even when the process is 
being brought within some legal control, this old idea 
survives. If there must be talk of proof, what has to 
be proved is not that this man is guilty of a murder, 
but that he was taken red-handed by hue and cry.

II Pollock and Maitland, History of English Law, 464-66, 
578-80 (2d ed. 1959).



It is this common law rule allowing all fleeing felons to 
be killed, a rule based on the ancient concept of outlawry, 
that Tennessee courts have adopted in interpreting their 
statute. These killings were acceptable at common law be­
cause only violent crimes were classified as felonies, and all 
were punishable by death and subject to outlawry. The kill­
ing of a fleeing felon merely accelerated the time of punish­
ment. The rule of outlawry permitting the killing of the 
fleeing felon did not apply to misdemeanors and lesser crimes. 
Lesser criminals who took flight from their crimes could not 
be killed to prevent their escape. See Comment, Deadly 
Force to Arrest: Triggering Constitutional Review, 11 Harv. 
C.R.-C.L. L. Rev. 361, 364-65 (1976).

It is inconsistent with the rationale of the common law 
to permit the killing of a fleeing suspect who has not com­
mitted a hfe endangering or other capital offense and who 
we cannot say is likely to become a danger to the community 
if he eludes immediate capture. Those states like Tennessee 
that cite the common law in defense of their rule permitting 
the killing of any fleeing felony suspect exalt the form of the 
common law rule over its substance and purpose. Tennessee 
law authorizing the use of deadly force against all fleeing 
felons is at odds with the purpose and function of the com­
mon law principle because there are now hundreds of state 
and federal felonies that range all the way from violations of 
tax, securities and antitrust laws and the possession of stolen 
or fraudulently obtained property to murder and crimes of 
terror. A state statute or rule that makes no distinctions based 
on the type of offense or the risk of danger to the community 
is inherently suspect because it permits an unnecessarily 
severe and excessive police response that is out of proportion 
to the danger to the community.

This hne of reasoning concerning the origin, development 
and current status of the common law rule is similar to the 
reasoning of the Eighth Circuit in its en banc decision in 
Mattis V. Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated as

8 Garner v. Memphis Police Department No. 81-5605



moot per curiam sub nom Ashcroft v. Mattis, 431 U.S. 171 
(1977). There the court held a similar state statute in 
Missouri unconstitutional under the Fourteenth Amendment 
as a matter of substantive due process. After tracing some 
of the history of the fleeing felon doctrine and cataloguing in 
comprehensive fashion the state statutes on the question, 
as well as federal decisions, administrative rules and scholarly 
commentary, the Eighth Circuit observed that “the historical 
basis for permitting the use of deadly force by law enforce  ̂
ment officers against nonviolent fleeing felons has been sub­
stantially eroded,” 547 F.2d at 1016. At common law since 
all felonies . . . were punishable by death, the use of deadly 
force was seen as merely accelerating the penal process. . . . 
547 F.2d at 1011 n.7.

Likewise, in Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975), 
the Second Circuit in a scholarly opinion by Judge Oakes 
observed that a rule which permits the use of deadly foree 
against nonviolent fleeing felons is not consistent with the 
purpose and function of the common law rule. Although the 
Jones case, like our earlier opinion in this case, insulates the 
officer from federal liability when, in rehance on a similar 
state statute, he shoots a nonviolent fleeing felon, the court 
commented;

[T]he common law rule evolved when only a few crimes 
were felonies, and all of them involved force or violence 
. . . and were punishable by death or forfeiture of lands 
and goods. See ALI, Model Penal Code § 3.07, Com­
ment 3 at 56 (Tent. Draft No. 8, 1958). (“Such rational 
justification for the common law rule as can be adduced 
rests largely on the fact that virtually all felonies in the 
common law period were punishable by death”). . . .  As 
the scope of “felony” crimes has expanded wholly away 
from the concept of violence which underlay its common 
law origin, the use of the felony label to justify especially 
severe police behavior has become increasingly strained. 
As stated by Judge McCree in his concurring opinion in

No. 81-5605 Garner v. Memphis Police Department 9



Beech  v. Melancon, 465 F.2d 425, 426-27 ( 6th Cir. 1972), 
cert, denied, 409 U.S. 114 (1973):

" . . .  I would find it dilficult to uphold as constitutional 
a statute that allowed police officers to shoot, after an 
unheeded warning to halt, a fleeing income tax evader, 
antitrust law violator, selective service dehnquent, or 
other person whose arrest might be sought for the com­
mission of any one of a variety of other felonies of a 
type not normally involving danger of death or serious 
bodily harm.”

We have thoroughly explored the digests and the electronic 
case retrieval systems, and our research discloses only one 
appellate decision discussing Fourth Amendment limitations 
on the use of deadly force to capture a fleeing suspect. In 
Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970), a black 
youth took flight at night. The police officer cornered the 
boy and shot him. The District Court dismissed the federal 
constitutional claim. Applying a Fourth Amendment analysis, 
the Fourth Circuit in an opinion by Judge Sobeloff reversed. 
Holding that the Fourth Amendment “shield covers the in­
dividual’s physical integrity,” the Court found a constitutional 
violation because “our plaintiff was subject to the reckless 
use of excessive force.” 424 F.2d at 1232.

The only other discussion of the reasonableness of the use 
of deadly force by police in a Fourth Amendment context is 
that of Chief Justice Burger in his dissenting opinion in 
Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 
388 (1971). In Bivens the Court held that the Fourth 
Amendment creates a direct constitutional tort claim for 
violation of a citizen’s right to be free of illegal searches of 
the home and seizures of the person. Although Bivens was 
not a fleeing felon case. Chief Justice Burger, in the course 
of his Fourth Amendment analysis in dissent, observed:

I wonder what would be the judicial response to a 
police order authorizing ‘shoot to kill’ with respect to

10 Garner v. Memphis Police Department No. 81-5605



every fugitive. It is easy to predict our collective wrath 
and outrage. We, in common with all rational minds, 
would say that the police response must relate to the 
gravity and need; that a ‘shoot’ order might conceivably 
be tolerable to prevent the escape of a convicted killer 
but surely not for car thieves, pickpockets or a shop­
lifter. Bivens v. Six Unknown Agents, 403 U.S. 388, 411 
(1971) (Burger, C.J., dissenting) (emphasis added).

The Sixth Circuit long ago in United States v. Clark, 31 F. 
710 (6th Cir. 1887), expressed similar doubts about the 
vahdity of a rule allowing deadly force against all fleeing 
felony suspects:

Suppose, for example, a person were arrested for petit 
larceny, which is a felony at the common law, might 
an offlcer under any cricumstances be justified in killing 
him? I think not. The punishment is altogether too 
disproportionate to the magnitude of the offense.

Id. at 713.

The Tennessee statute in question here is invalid because 
it does not put sufficient Hmits on the use of deadly force. 
It is “too disproportionate.” It does not make distinctions 
based on “gravity and need” nor on “the magnitude of the 
offense.” Before taking the drastic measure of using deadly 
force as a last resort against a fleeing suspect, officers should 
have probable cause to believe not simply that the suspect 
has committed some felony. They should have probable 
cause also to beheve that the suspect poses a threat to the 
safety of the officers or a danger to the community if left at 
large. The officers may be justified in using deadly force if 
the suspect has committed a violent crime or if they have 
probable cause to believe that he is armed or that he will 
endanger the physical safety of others if not captured. A 
statute which allows officers to kill any unarmed fleeing felon 
does not meet this standard and is therefore invalid.

No. 81-5605 Garner v. Memphis Police Department 11



After oral argument in this case, upon motion, the Court 
permitted the state of Tennessee, through its Attorney Gen­
eral, William M. Leach, Jr., to intervene as a party under 
28 U.S.C. § 2403(c) for die purpose of defending the con- 
stitutionahty of T.C.A. § 40-7-108. The State has filed 
an able brief. It concedes that Tennessee comts and 
law enforcement agencies interpret the statute to permit the 
use of deadly force against any fleeing felon, whatever the 
felony, “when no lesser means of apprehension reasonably 
appears available.” (Brief, p. 5,) The State’s brief argues, 
however, that we should not reach the issue of whether 
Tennessee’s rule may be constitutionally apphed to a non- 
dangerous felon fleeing from a non-violent felony because 
here the officer “could not be certain whether there was an 
accomplice in the burglarized house, or in the area, and 
whether the accomphce might be armed.” (Brief, p. 6.)

This argument almost always permits the officer to shoot 
to kill. The officer wiU seldom be absolutely certain of the 
situation. The Fourth Amendment resolves this problem, 
however. It requires probable cause — an objective, reason­
able basis in fact to beheve that the felon is dangerous or has 
committed a violent crime. There is no evidence to support 
such a finding in this case, although as the state argues, and 
as the District Court found, the officer was not certain on 
this point. The officer knew only that he was dealing with 
a youth who had committed a non-violent felony and was 
apparently unarmed. We do not have to hold the District 
Judge’s findings clearly erroneous in order to reach this 
result, because the facts, as found, did not justify the use 
of deadly force under the Fourth Amendment.

An analysis of the facts of this case under the Due Process 
Clause of the Fourteenth Amendment leads lis to a similar 
result. That clause prohibits any State from depriving “any 
person of hfe, liberty, or property, without due process of 
law.” U.S. Const. Amend. XIV. The right to life, expressly 
protected by the Constitution, has been recognized repeatedly

12 Garner v. Memphis Police Department No. 81-5605



hy the Supreme Court as fundamental in the due process and 
equal protection contexts. Tick W o v. Hopkins, 118 U.S. 
356, 370 (1886) (the fundamental rights “to life, liberty and 
the pursuit of happiness”); Johnson v. Zerhst, 304 U.S. 458, 
462 (1938) (“the fundamental human rights of life and lib­
erty”); Roe V. Wade, 410 U.S. 113 (1973) (right to life 
protected by Fourteenth Amendment when fetus becomes 
viable).

When a fundamental right is involved, due process requires 
a state to justify any action affecting that right by demon­
strating a compelling state interest. Roe v. Wade, supra; 
Mattis V. Schnarr, 547 F.2d 1007, 1019 (8th Cir. 1976) (en 
banc). Laws which infringe on fundamental rights must be 
“narrowly drawn to express only the legitimate state interests 
at stake.” Roe v. W ade, supra. The law challenged here is 
not so narrowly drawn. Certainly there are state interests 
in law enforcement served by this law which allow police to 
shoot all ffeeing felons. Those interests are compelling when 
the ffeeing felon poses a danger to the safety of others. We 
do not consider these interests sufficiently compelfing to 
justify the use of deadly force to protect only property rights.

As the Eighth Circuit pointed out in striking down a 
similar law:

We find nothing in this record . . .  to support the con­
tention of the state that statutes as broad as these deter 
crime, insure public safety or protect life. Felonies are 
infinite in their complexity, ranging from the violent 
to the victimless. The police officer cannot be constitu­
tionally vested with the power and authority to kiU any 
and all escaping felons, including the thief who steals 
an ear of corn, as weU as one who kills and ravishes at 
will.

Mattis V. Schnarr, supra at 1019-20 (footnote omitted). 
Where, as here, human life is the right at stake, a statute 
that sweeps as broadly as this one violates due process of 
law and must be struck down.

No. 81-5605 Garner v. Memphis Police Department 13



The principles and distinctions we have enunciated here 
have been cast in the form of a rule by the American Law 
Institute in the Model Penal Code, a rule which accurately 
states Fourth Amendment limitations on the use of deadly 
force against fleeing felons:

The use of deadly force is not justifiable . . . unless (i) 
the arrest is for a felony, and (ii) the person effecting 
the arrest is authorized to act as a peace officer or is 
assisting a person whom he believes to be authorized to 
act as a peace officer; and (iii) the actor believes that 
the force employed creates no substantial risk of injury 
to innocent persons; and (iv) the actor believes that 
(1) the crime for which the arrest is made involved con­
duct including the use or threatened use of deadly force; 
or (2) there is a substantial risk that the person to be 
arrested will cause death or serious bodily harm if his 
apprehension is delayed.

Model Penal Code § 3.07 (2) (b ) (Proposed Official Draft, 
1962).

Our holding here under the Fourth Amendment is not 
inconsistent with our holdings in Wiley v. Memphis Police 
Department, 548 F.2d 1247 ( 6th Cir. 1977), and Beech  v. 
Melancon, 465 F.2d 425 (6th Cir. 1972), or the three judge 
District Court opinion in Cunningham v. Ellington, 323 F. 
Supp. 1072 (W.D. Tenn. 1971), in all of which youths were 
killed by the Memphis police while fleeing from the commis­
sion of a burglary. In each of those cases the Tennessee 
statute was drawn into question under the “cruel and un­
usual punishment” clause of the Eighth Amendment and 
under the Fourteenth Amendment as a matter of substantive 
due process. In none of these cases was a Fourth Amend­
ment question raised, discussed, mentioned or decided. 
Fourth Amendment considerations were not argued. More­
over, in each of the cases the narrow question before the 
court was whether the police officer who shot the fleeing boy

14 Garner v. Memphis Police Department No. 81-5605



was entitled to a good faith privilege against liability based 
upon his reliance upon the Tennessee statute. In each case 
the court held, just as we held in our previous decision in 
this case. Garner v. City o f Memphis, supra, that the officer 
is insulated from personal liability by a good faith privilege 
which entitles him to rely upon the Tennessee statute. This 
is the ratio decidendi of each of those cases. In those cases 
it was unnecessary to reach the constitutionality of the statute 
in order to decide the question of the officers’ immunity, and 
in any event, no Fourth Amendment question was raised in 
any of the cases.

No. 81-5605 Garner v. Memphis Police Department 15

m.
In his opinion of July 8, 1981, Judge WeUford held that 

although Owen v. City o f Independence, 445 U.S. 622 (1980), 
precludes the city of Memphis from claiming immunity based 
on the good faith of its police officers, that opinion left open 
the question whether the City could claim immunity for its 
good faith reliance on a facially vahd state law in enacting 
City police regulations. Because he found no violation of 
Garner’s constitutional rights, the Judge did not have to 
answer this question. In light of our finding of a constitutional 
violation, we must reach this question; in doing so, we hold 
that there is no good faith immunity for municipafities under 
§ 1983.

The reasoning underlying the Supreme Court’s decision 
in Owen, supra, precludes a municipality’s claim of good 
faith immunity under § 1983 altogether. Justice Brennan, 
speaking for the Court in Owen, gave two major reasons why 
good faith immunity of city officials should not be extended 
to municipafities themselves. First he pointed out that at 
common law, which is the source of immunities under § 1983, 
there was no good faith immunity for governmental entities. 
Id. at 640. Sovereign immunity at common law was un­
related to the question of good faith and was waived when 
the government consented to suit as it does under § 1983.



16 Garner v. Memphis Police Department No. 81-5605

Immunity for discretionary functions, the only other govern­
mental immunity at common lâ v, involved concerns of sep­
aration of powers, unrelated to good faith. Because a munci- 
pahty has no “discretion” to violate constitutional rights of 
its citizens, this traditional form of immunity does not come 
into play. There is no common law analogue which would 
suggest that municipalities have immunity for good faith 
reliance on state law under § 1983.

Second, Justice Brennan discussed the public policy con­
siderations which justify individual good faith immunity and 
found that they did not weigh heavily in favor of govern­
mental immunity. The two considerations are (1) the in­
justice of forcing an individual whose position requires him 
to exercise discretion to bear the cost of his good faith reh- 
ance on a law or regulation; and (2) the danger that the 
threat of liabiHty would deter individuals from executing the 
duties of their oflBces or even from seeking pubHc office. Id. 
at 654. When a municipality is held liable, whether for the 
actions of its officials, or based on its own reliance on state 
law, no single individual or official must bear the cost. The 
cost is spread among the general public, which is ultimately 
responsible for the conduct of its officials. There is little 
danger that individuals will hesitate to carry out their duties 
or accept public office, when any liabihty for their rehance 
on state law wiU be paid from the public fisc.

In a well-reasoned opinion, the Tenth Circuit sitting en 
banc, held that good faith reliance by a school district on 
the prior law of the circuit provided no independent protec­
tion from habihty for wrongful dismissal of a teacher. Bertot 
V. School District No. 1, Albany County, 613 F.2d 245, 251 
(10th Cir. 1979). It held that the remedying of deprivations 
of fundamental constitutional rights must be of primary con­
cern to courts and other governmental bodies. A rule impos­
ing habihty despite good faith rehance insures that if govern­
mental officials err, they will do so on the side of protecting 
constitutional rights. It also serves the desirable goal of



No. 81-5605 Garner v. Memphis Police Department 17

spreading the cost of unconstitutional governmental conduct 
among the taxpayers who are ultimately responsible for it. 
Id. at 252.

Neither the District Judge nor the City of Memphis has 
offered any reason why the courts should expand the doctrine 
of good faith immunity under § 1983. The considerations 
which prompted the Supreme Court in Owen to deny good 
faith immunity to municipahties for the acts of their officials 
apply with equal force to this case.

Accordingly, the judgment of the District Court is reversed 
and the case remanded for further proceedings consistent 
with this opinion.