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

BRIEF FOR PLAINTIFF-APPELLANT

JACK GREENBERG 
JAMES M. NABRIT, III 
STEVEN L. WINTER 
Suite 2030 
10 Columbus Circle New-York, Nev/ York 10019
WALTER L. BAILEY, JR,Suite SOI, Tsnoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103
Counsel for Plaint iff-Aooellan

/
/



TABLE OF AUTHORITIES
Cases: E^^es
Adickes v, Kress and Co., 398 U.S. 144 (1970) ..... 12
Alexander v. Texas Co., 165 F. Supp. 53, (W.D. La.

1958) ........................................
Arlington Heights v. Metropolitan Housing Corp.,

429 U.S. 252 (1977)   38
Arnold v. Ballard, 448 F. Supp. 1025 (N.D. Ohio

1978)     ^
Avery v. State of Georgia, 345 U.S. 599 (1953) .... 42
Ayler v. Hopper, Civil Action No. 80-341-N (M.D.

Ala. April 29, 1981)   33,34,35
Beech v. Melancon, 465 F. 2d 425 (6th Cir. 1972) ... 2
Bell V. Wolfish, 441 U.S. 520 (1979) .........  6,15,21,32
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) ... 34
Blacks United for Lasting Leadership v. City of

Shreveport, 71 F.R.D. 623 (W.D. La. 1976) .... 11
Castaneda v. Partida, 430 U.S. 482 (1977) .... 8,42,43,44
City of Newport v. Fact Concerts, ____ U.S. ____,

69 L.Ed. 2d 616 (1981)   4
Chicano Police Officer's Ass'n v. Stover, 522 F. 2d

918 (10th Cir. 1977)   5
Cleveland Board of Education v. LaFleur, 414 U.S.

632 (1974) ................................. 33
Coker v. Georgia, 433 U.S. 584 (1977)   24,31,34,35
Conley v. Gibson, 355 U.S. 41 (1957)    7
Cruz V. Beto, 405 U.S. 319 (1972)   "7
Cunningham v. Ellington, 323 F. Supp. 1072 (W.D.

Tenn. 1971) ................................. 3
Fialkowski v. Shapp, 405 F. Supp. 946 (E.D. Pa.

1975) ........................................
Furman v. Georgia, 408 U.S. 238 (1972) ........  16,38,43
Garner v. Memphis Police Dept., 600 F. 2d 52 (6thCir. 1979) ..................................  2,3, passim

-  11 -



Gates V. Collier, 501 F. 2d 1291 (5th Cir. 1974
Gilmore v. City of Montgomery, 417 U.S. 556

(1974) ...................................
Goodpasture v. Tennessee Valley Authority, 434 

F.2d 760 (6th Cir. 1970) .................
Gregg v. Georgia, 428 U.S. 153 (1976)
Hayes v. Memphis Police Dept., 571 F. 2d 357 (6th 

Cir. 1978) .................................
Hilliard v. Williams, 456 F. 2d 1212 (6th Cir. 

1972) ....................................
Hines V. D'Artois, 531 F. 2d 726 (5th Cir. 1976;
Ingraham v. Wright, 430 U.S. 651 (1977) ......
Jackson v. Allen, 376 F. Supp. 1393 (E.D. Ark.

1974) .....................................
Jenkins v. Averett, 424 F. 2d 1228 (4th Cir.

1970) .....................................
Johnson v. Glick, 481 F. 2d 1028 (2d Cir. 1973)
Johnson v. Zerbst, 304 U.S. 458 (1938) ........
Jones V. Marshall, 528 F. 2d 132 (2d Cir. 1975)
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)
Krause v. Rhodes, 570 F. 2d 563 (6th Cir. 1977)
Landman v. Royster, 354 F. Supp. 1302 (E.D. Va. 

1973) .....................................

29

11

11
24,36

Page

7
13
15

46

45
33,45

32
20

6,15, passim 
15

44
Leite v. City of Providence, 463 F. Supp. 585

(D.R.I. 1978) ..............................  48,49
Madison, et al. v. Memphis Police Dept., Civ.Act. No. C-73-21 (W.D. Tenn. Jan 4, 1980) .... 11,30
Mattis V. Schnarr, 547 F. 2d 1007 (8th Cir. 1976), 

vacated on case and controversy grounds sub. 
nom. Ashcroft v. Mattis, 431 U.S. 171 (1977) ...........................  20,22,33,34

May V. Anderson, 345 U.S. 528 (1953! 32
Monell V. Department of Social Services, 436 U.S.

658 (1978) ...................................  3,4 , passim

- Ill -



Monroe v. Pape, 365 U.S. 167 (1961) ...............  3
Owen V. City of Independence, 445 U.S. 622

(1980) .......................................  ^

Petition of Kinsman Transit Co., 338 F. 2d 708
(2d Cir. 1964) ....................................  46
Qualls V. Parish, 534 F. 2d 690 (6th Cir. 1976) .... 2,20
Rochin V. California, 343 U.S. 165 (1952) .........  45
Roe V. Wade, 410 U.S. 113 (1973) ..................  33
Rowe V. General Motors Corp., 457 F. 2d 348 (5th

Cir. 1972) ...................................  42,43
Screws v. United States, 325 U.S. 91 (1945) ....  16,32
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) .... 11
Slack V. Atlantic White Tower System, 181 F. Supp.

124 (D. Md. 1960) ........................ . • • • 12
Spain V. Procunier, 600 F. 2d 189 (9th Cir.

.1979)   32
Stanley v. Illinois, 405 U.S. 645 (1972)   33
Stephens v. County of Duchess N.Y., 455 F. Supp.

89 (S.D.N.Y. 1977)   44
Thompson v. Montemuro, 383 F. Supp. 1200 (E.D.

Pa. 1974)   44
Travis v. Pennyrile Rural Electric Corp., 399

F. 2d 726 (6th Cir. 1968) ..................  11
Turpin v. Mailet, 579 F. 2d 152 (1978) . . ........... 44
United States v. City of Memphis, Civ. Action

No. C-74-286 (W.D. Tenn. 1974)   41
United States v. Clark, 31 Fed. 710 (C.C.E.D.

Mich. 1887)   18
United States v. Hawkins, 556 F. 2d 1066 (5th

Cir. 1978)   10
United States v. State of North Carolina, 425

F. Supp. 789 (E.D.N.C. 1977)   5
United States v. Texas Educational Agency, 564

F. 2d 162 (5th Cir. 1977) ................... 44

Page

- IV -



United States Fidelity and Casualty Co. v,Lawrenson, 334 F. 2d 464 (4th Cir. 1964) .... 11
Washington v. Davis, 426 U.S. 224 (1976) ....... 5,42,43
Watson V. City of Memphis, 373 U.S. 526 (1963) ..... 29
Wiley V. Memphis Police Department, Civ. Action 

No. C-73-8, Mem. Op. (W.D. Tenn. June 
30, 1975) ....................................

Wiley V. Memphis Police Dept., 548 F. 2d 1247(6th Cir. 1977) ............................  2,4, passj^
Williams v. Edwards, 547 F. 2d 1206 (5th Cir.

1977) ........................................
Williams V. Kelly, 624 F. 2d'695 (5th Cir. 1980) ...32,33
Woodson V. North Carolina, 482 U.S. 280 (1976) .... 16,19
Wright v. McMann, 460 F. 2d 134 (2d Cir. 1972) .... 44
Yick Wo V. Hopkins, 118 U.S. 356 (1886) ........  32,28,44
Constitutional, Provisions Statutes and Rules
U.S. Const. Amend. VIII .........................  24,32

Excessive bail shall not be required, 
nor excessive fines imposed, nor cruel 
and unsual punishments inflicted.

U.S. Const. Amend. XIV Sec. 1 ...................  14,17, passim
... nor shall any State deprive any 
person of life, liberty, or property, 
without due process of law; nor deny to 
any person within its jurisdiction the 
equal protection of the law.

Fed. R. Civ. P. 52(a) .............................  2
Fed. R. Ev. 201 ................................  10,12

(a) Scope of rule. This rule governs 
only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially 
noticed fact must be one not subject to 
reasonable dispute in that it is either
(1) generally known within the terri­torial jurisdiction of the trial court or
(2) capable of accurate and ready deter­
mination by resort to sources whose accuracy cannot reasonably be questioned.

Page

- V -



Page

(c) When discretionary. A court may 
take judicial notice, whether requested 
or not.

(d) When mandatory. A court 
judicial notice if requested by 
and supplied with the necessary 
tion.

shall take 
a party 
informa-

(e) Opportunity to be heard. A party 
is entitled upon timely request to an 
opportunity to be heard as to the pro­
priety of taking judicial notice and the 
tenor of the matter noticed. In the 
absence of prior notification, the 
request may be made after judicial 
notice has been taken.

(f) Time of taking notice. Judicial 
notice may be taken at any stage of the 
proceeding.

Memphis City Code § 30-15 .........................  18
Public Stats, of Tenn. § 5 (Supp. 1858-1871) .......  36
Tenn. Code. Ann. § 39-901 (1975) ..................  18
Tenn. Code. Ann. § 40-808 (1975) ................  3,36

Resistance to officer. - If, after 
notice of the intention to arrest the 
defendant, he either flee or forcibly 
resist, the officer may use all the 
necessary means to effect the arrest.

Other Authorities
Davis, An Approach to the Problems of Evidence in 

the Administrative Process, 55 Harv. L. Rev.
364 (1942)   10

9 A.L.I. Proceedings 186-87 (1931), quoted in
J. Michael & H. Wechsler, Criminal Law and Its 
Administration 80-82 (1940) .................  19

4 W. Blackstone, Commentaries 98 (1800) ...........  35
Bohlen & Schulman, Arrest With and Without a

Warrant, 75 U. Pa. L. Rev. 485 (1927) ........  17
Community Relations Service, United States Depart­ment of Justice, Memphis Police and Minority 

Community: A Critique (May 1974)   41

- VI -



Comment, Deadly Force to Arrest: Triggering Con­
stitutional Review, 11 Harv. Civ. Rights-Civ.
Lib. L. Rev. 361 (1974) ................  16,26,36

Ely, The Wages of Crying Wolf: A Comment on Roe
V. Wade, 82 Yale L.J. 920 (1973) ................  37

Holmes, The Paths of the Law, 10 Harv. L. Rev. 457
(1909) .......................................  37

C. Kennet and J. Anderson, The Gun in America, 22
(1975) .......................................  37

A Community Concern; Police Use of Deadly Force,
U.S. Dept, of Justice, LEAA ...................  10

Note, Legalized Murder of a Fleeing Felon, 15 Va.
L. Rev. 582 (1929) .........................  16

R. Perkins, Criminal Law 10 (2d ed. 1969) ..........  16
W. Prosser, Law of Torts 266 (4th ed. 1971) .......  46
Sherman, Execution Without Trial: Police Homicide

and the Constitution, 33 Vand. L. Rev. 71 
(1980)   17,19,26,37

T. Taylor, Two Studies in Constitutional Interpre­
tation 28 (1968) ..............................  36

Tennessee Advisory Committee to the U.S. Commis­
sion in Civil Rights, Civil Crisis - Civil 
Challenge: Police - Community Relations inMemphis (August 1978)   12,40

Note, The Use of Deadly Force in Arizona by Police
Officers, 1972 L. & Soc. Order 481 ...........  16

9 Wright and Miller, Federal Practice and Proce­
dure § 2410 (1971)   10,11

Page

- VI 1 -



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.

On Appeal from the United States 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 countervail­
ing state interests;

3. Whether Memphis' policy authorizing the shooting of 
non—dangerous fleeing property crime suspects is racially 
discriminatory; |



4. Whether the use of hollow-point, "dum-dum,” bullets consti­
tutes 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 consider1/the use 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. 78_, 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 feet as he climbed the fence to escape.

J_/ Garner v. Memphis Police Dept., 600 F. 2d 52 (6th Cir. 1 979); 
Hayes v. Memphis Police Dept., 571 F. 2d 357 (6th Cir. 1978); Wiley V. Memphis Police Dept., 548 F. 2d 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. 1072 (W.D. Tenn. 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.

-  2 -



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.[^/] 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. In a pretrial

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. 35.

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

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 assumedhe wasn't...." App. 688. 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, î . , 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 and is, although literally true, totally disingenuous.
Indeed, a finding either that the victim was armed or that the 
officer thought so would, on this record, be "clearly erroneous." 
Fed. R. Civ. P. 52(a).

-  3 -



specific questions 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. 2. At oral argument, it requested a further 
memorandum from plaintiff on what he would seek to prove at such

2 / 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 a 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 Court's decision in City of Newport v. Fact Concerts, ____ U.S.

, 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 dealt with infra. The district court 
answered the second and third questions in the affirmative.
App. 61-62. Accordingly, it did not reach the fourth 
question. App. 62.

This court'
parts: Points I, _
questions are explicitly addressed 
tively.

s second question 
II and III,

will be dealt with in three 
infra. The third and fourth

as Points IV and V, respec-

-  4 -



a hearing. See App. _4. Plaintiff's memorandum requested 
additional discovery, an evidentiary hearing and an opportunity 
to. file a brief and be heard at oral argument on the substantive 
issues before determination of this court's four questions and 
the other relevant issues on remand. Id.

By order dated February 3, 1980, the district court denied
1/plaintiff's request for a hearing and entered an order dis­

missing the case on the merits. App. 36-47. Plaintiff filed a 
motion for reconsideration under Fed. R. Civ. P. 59 (c) on the 
ground that the court had never indicated it was considering 
anything other than the hearing issue and that plaintiff was 
never given the opportunity to brief or argue the substantive 
issues. Plaintiff requested the opportunity to file a brief and 
an offer of proof and to be heard at oral argument. App. 48-49.

V  This order is in sharp contrast to the practice of other 
federal courts of affording further discovery and evidentiary hearings in civil rights cases on remand after major new pro­
nouncements by the Supreme Court. This was the practice of many courts after the Court's opinion in Washington v. Davis, 426 U.S.
224 ( 1 976). See, e.g. , Chicano Police Officer's Ass'n v. Stover,
522 F. 2d 918 (10th Cir. 1977); Arnold v. Ballard, 448 F. Supp.1025, 1031-32 (N.D. Ohio 1978); United States v."State of North
Carolina, 425 F. Supp. 789, 794 (E.D.N.C. 1977). In Stover, supra,
the Tenth Circuit noted that; "To close the case without proof or findings on the critical issue, and to leave the judgment 
standing ..., would be unduly harsh." 552 F. 2d at 922.

The Court's opinion in Monell, supra, opens a new area of 
investigation regarding "policy or custom." Indeed, although 
this court did not specifically require a hearing on remand, it indicated relevant data not in the record which should be considered, 
600 F. 2d at 55 n. 4. It was this very data that plaintiff sought 
to adduce.

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The court granted plaintiff's motion.
Plaintiff's brief and offer of proof were submitted on June 

23, 1980. On March 23, 1981, the court advised counsel that it 
would proceed to decide the case. Without granting plaintiff's 
repeated request for oral argument on the complex and novel issues 
of the remand, the court ruled against plaintiff in an opinion 
dated July 8, 1981. Ignoring this court's ruling that the liability 
of the City is still an open question under the Sixth Circuit's 
prior rulings and Monell, 600 F. 2d at 54, the district court 
simply reiterated its prior holding without any serious reconsidera­
tion of the issues presented by plaintiff on remand. Indeed, the 
court's opinion fails to deal with the most significant constitu­
tional issue raised by the plaintiff; it does not even advert to 
the Supreme Court authority which we believe controls decision in 
this case. Bell v. Wolfish, 441 U.S. 520 (1979); Kennedy v. 
Mendoza-Martinez, 372 U.S. 144 (1963). See discussion, infra.
Point I.~

5 /

_5/ In doing so, it gave him 45 days in which to file. App.
~53. Despite the fact that out-of-town counsel had filed a notice of appearance, handled the appeal, filed all memoranda and motions 
(including the motion for reconsideration itself), argued the 
hearing question to the court, and otherwise made known to the 
court that he was responsible for proceeding on remand, counsel 
was not graced with a copy of the court's order granting his motion and setting the briefing schedule. App. 5 and He did
not discover that the motion had been granted until over a third 
of the briefing time had run. Even so, he discovered it on his 
own initiative. The docket sheet makes clear that of all notices, 
letters, and orders proceeding from the court on remand, this was 
the only one not copied to out-of-town counsel. App. and _5.

Although much of the argument presented infra is not dealt 
with in the district court's opinion, each of these points was carefully raised and briefed below. The district court simply 
failed to respond to these issues.

-  6 -



The district court ruled against the plaintiff on the racial 
discrimination claim. This was based on a complete misreading of 
the affidavit proffered by plaintiff's expert Dr. James J.
Fyfe, a former New York City police officer and training 
instructor. App. 787-97. Properly read, it establishes that, 
using all the available data and controlling for differential 
racial representation in the arrest population, black property 
crime suspects were more than twice as likely to be shot at 
than whites (4.33 per 1000 black property crime arrests; 1.8.1 
per 1000 white property crime arrests), four times more likely 
to be wounded (.586 per 1000 blacks; .1113 per 1000 whites), and 
40% more likely to be killed (.63 per 1000 blacks; .45 per 1000 
whites). Although the district court stated that the expert 
did not state what underlying data he relied on, App. 56, 
this data was part of the offer of proof. App. 1070-72, 1409, 
1457, & 1460-69. Moreover, analysis of fatal shootings revealed 
that all but one white victim was armed or assaultive, while half 
of the more numerous black victims were not. App. 794. Fyfe con­
cluded that "the only statistically significant category of whites 
killed is those armed with guns." Despite these conclu­
sions, which the court was constrained to consider in the light 
most favorable to the plaintiff (having denied him discovery 
and a further hearing), cf. Cruz v. Beto, 405 U.S. 319 (1972); 
Conley v. Gibson, 355 U.S. 41 (1957); Hilliard v. Williams, 465 
F. 2d 1212 (6th Cir. 1972) (motion to dismiss), the court 
proceeded to interpose its own assumptions and conjectures 
regarding the meaning of the data. App. 56-57. It never even

-  7 -



considered whether these facts, if true, establish a prima facie 
case of discrimination, shifting the burden of proof to the de­
fendants to dispel the inference of racial discrimination. See 
Castaneda v. Partida, 430 U.S. 482, 494-97 (1977). Moreover, hav­
ing deprived plaintiff of the opportunity to call witnesses, it 
nevertheless discounted Fyfe's conclusions because of his alleged 
"bias." App. 58.

The district court entered judgment for the defendants. This 
appeal followed.
B. The Record on Appeal

Because of the district court's decision not to allow further 
hearings on remand, the record on appeal is a hybrid one. It con­
sists of the evidence adduced at the first hearing, App. 65- 
759, and the offer of proof tendered on remand. App. 760-1891.

Significant portions of the original trial record are relevant
to this court's determination of the constitutionality of the
Memphis deadly force policy and the Monell issues. Plaintiff
called Captain Coletta, the Commander of the Training Division of
the Memphis Police Department, who was responsible for recruit
training and the department's ammunition policy. App. 301, 307 and
400-01. His testimony established: that the department used the
training film "Shoot - Don't Shoot" which presented only armed fleeing
felons in its situational illustrations of the fleeing felon 

• _!/rule, App. 329-32 ; that there was no training with regard to

7/ Testimony proffered as part of the plaintiff's offer of proof Tncluded the statement of New York Police Department Chief of 
Patrol, William R. Bracey, that this particular film would tend to make new recruits "jumpy" and more likely to use deadly force 
precipitously. App. 774. See also App. 943-44. See discussion, 
infra, at 49.

-  8 -



alternatives which should be exhausted before resorting to deadly 
force to stop unarmed fleeing felons, App. 340; that the 
department's firearms manual details firearm techniques, but 
not techniques to avoid the use of weapons, App. 344-45; and that 
the use of deadly force to stop fleeing felony suspects is left 
to the officer's discretion, App. 345; recruits are simply told 
that they have to live with themselves if they kill a person. App.
326. See also App. 195-96, 901, 956, and 1796.

Coletta also testified about the changes in the Memphis 
ammunitions policy in the years preceeding the Garner shooting.
In 1970, Memphis officers were armed with a .38 caliber Smith 
and Wesson and issued 158 grain roundnose Winchester cartridges.
App. 392-93. Between 1970 and 1972, a 110 grain, semi-jacketed 
hollow-point Smith and Wesson cartridge was used, App. 397/ a 
bullet with greater velocity, accuracy, and cavitational effect 
- i.e., predicted wounding power. App. 413-16, 426, 425-27, and 447. 
In 1972, in response to police union contentions, the department 
asked Coletta to test and select a more powerful bullet. As a 
result, the 125 grain, semi-jacketed, hollow-point Remington 
cartridge was selected. App. 411. This bullet has yet 
greater accuracy, velocity, and wounding power than any of the 
previous cartridges. App. 426, 413-16, 425-27, and 447.

Both Coletta and the Shelby County medical examiner testifed 
that the 125 grain hollow-point was a "dum-dum" bullet banned in 
international use by the Hague Convention of 1899 because it is 
designed to produce more grievous wounds. App. 487-88 and 572.

-  9 -



It was undisputed that this was the bullet that killed young 
Garner.

Colletta also testified that Memphis recruits were trained 
to shoot at the torso, or at "center mass," where vital organs 
are more likely to be hit. App. SST-SS. See also App. 1597 
and 1807-08. He testified that he could have trained them to 
shoot at the extremities of unarmed fleeing felony suspects but 
for considerations of cost, time allotted for training, and 
recruit talent. App. 351—52. And he stated that he could not 
recall a single instance when an officer was sanctioned for 
using his weapon. App. 547. Accord, App. 1858.

The second portion of the record, the offer of proof, is of
two types. The first contains matters which may be judicially
noticed by this court. This includes several subsets. One is
those materials which may be judicially noticed because they are
"legislative facts." Fed. R. Ev. 201, Advisory Committee Notes;
Davis, An Approach to the Problems of Evidence in the Administrative
Process, 55 Harv. L. Rev. 364 (1942); 9 Wright and Miller, FEDERAL

8/PRACTICE AND PROCEDURE §2410, 339-40 (1971). These include the 
deadly force policies of 45 major municipalities, App. 1108- 
1368, the training materials for the New York Police Department,
App. 1369-1408, and the excerpts from A COMMUNITY CONCERN; POLICE 
USE OF DEADLY FORCE, U.S. Dept, of Justice, LEAA, containing 
information regarding police training procedures which are used

8/ See also United States v. Hawkins, 566 F. 2d 1006, 108 n. 2 T5th Cir. 1"978) (although outside the record, jury selection 
plan for district court may be noticed because "it is an official, 
public record....").

-  10 -



in other municipalities, but not in Memphis. App. 1602-13. The 
other consists of materials from the record of other cases in the

_i/district court. These include: the Preliminary Report filed
January 18, 1972, by C.H. Cole, Chief Inspector, Investigative 
Services Bureau, Memphis Police Department from Madison, et al.
V. Memphis Police Dept., Civ. Act. No.C-73-21 (W.D. Tenn. Jan.
4, 1980), App. 798-818; the deposition of Edward R. Fredrick, 
taken November 27, 1979, in the same case, App. 819-74; 
the deposition of Memphis Mayor Wyeth Chandler taken December 
19, 1979 in the same case, App. 875-915; the deposition of 
Police Chief Winslow Chapman, taken December 27, 1979, also in 
the same case, App. 916-1019; the raw data concerning all 
arrests by the Memphis Police Department between 1963 and 1974 
compiled by the defendants in Wiley v. Memphis Police Dept.,

V  The practice of taking judicial notice of the record of prior cases is now well established and extends to the records 
of inferior courts and courts of other jurisdictions. 9 Wright 
and Miller, supra, §2410 at 359-61. This court has on more than one occasion taken notice of matters in other records. 
Travis V. Pennyrile Rural Electic Corp., 399 F. 2d 726, 729 
(6th Cir. 1968), cited with approval in Goodpasture v. Tennessee Valley Authority, 434 fT 2d 760, 765 f^th Cir. 1970). It Is 
especially appropriate in civil rights cases which, as here, 
often involve years of litigation over a continuing state of 
affairs. See, e.g. , Shuttlesworth v. Birmingham, 394 U.S. 147 
(1969); Gilmore v. City of Montgomery, 417 U.S. 556 (1974); 
Blacks United for Lasting Leadership v. City of Shreveport, 71 F.R.D. 623 (W.D. La. 1976). The materials in the offer of 
proof are also particularly appropriate for judicial notice 
because they involve testimony of the (original) defendants 
in this case, see Alexander v. Texas Co., 165 F. Supp. 53, 58 
(W.D. La. 1958), and facts which were equally crucial in the 
prior cases. See United States Fidelity and Casualty Co. v. Lawrenson, 334 F. 2d 464, 467 (4th Cir. 1964). Moreover, 
defendants were represented by the same counsel in many of 
these other cases.

- 1 1 -



Civ. Act. No. C-73-8 (W.D. Tenn. June 30, 1975), aff'd, 548 F.
2d 1247 (6th Cir. 1977), App. 1409-57; Appendix A from the Wiley 
brief in this court, detailing the incidents when Memphis Police 
used deadly force to stop property crime suspects, App. 1460-69; 
and excerpts from the trial record in Wiley. App. 1477-1601 and 
1614-1891.

The third part of the offer of proof subject to judicial
notice is an excerpt from CIVIL CRISIS - CIVIL CHALLENGE: POLICE -
COMMUNITY RELATIONS IN MEMPHIS, a report prepared by the Tennessee
Advisory Committee to the U.S. Commission on Civil Rights, August
1978. It contains statistics on use of deadly force in Memphis and
information on Memphis' disciplinary procedures. The latter are
designed to deter complaint by requiring the complainant and not
the officer to take a polygraph and by immediately informing the
officer of the complainant's name and address. App. 1050-58.
Although "adjudicative facts," the court may take notice of the

10/contents of this report.
After plaintiff's request for hearing was denied, he asked 

the court below to take judicial notice of these materials under 
Fed. R. Ev. 201. App. 762-63. Since the district court failed to 
advert to any of these materials which could have been included 
in the record, it must be assumed that it declined to do so. Ap-

10/ The reports of civil rights commissions are subject to judicial notice. Slack v. Atlantic White Tower System, 181 F. Supp. 124,
126 (D. Md. 1960), cited with approval in Adickes v. Kress and 
Co., 398 U.S. 144, 212 n. 22 (1970) (Brennan, J., concurring and 
dissenting).

-  12 -



pellant respectfully requests that this court take judicial notice
11/of these materials in order to justly decide this appeal.

The final portion of the offer of proof consists of three 
affidavits in lieu of live, expert testimony. Part 1, App.
765, is the affidavit of William R. Bracey, Chief of Patrol of 
the New York Police Department who has responsibility for all 
17,500 uniformed personnel of the N.Y.P.D. He would have 
testified; that guidelines and committed enforcement of those 
guidelines by the police hierarchy will lead to reductions in 
the use of unnecessary deadly force; that New York has reduced 
firearms discharges by 50% by these means; that the result of 
this reduction has been the increased safety of N.Y.P.D. 
officers with fewer assaults on officers and fewer deaths; that 
law .enforcement has been unhampered; that training, including 
training in alternatives to minimize the need for use of deadly 
force, and discipline are the keys to reducing unnecessary

11/ See cases cited, supra, n. 9. Although appellant believes 
that the district court erred in not affording him a hearing on 
remand, he does not seek reversal and a remand on this ground. 
Rather, he respectfully asks this court to rule on the current 
record. Although the relevant evidence for each of the issues 
presented is a mix of record evidence, matters subject to judicial notice, and proffered testimony, the record evidence 
together with the noticeable items are sufficient to decide the 
appeal on all issues except, perhaps, the discrimination claim. 
Appellant respectfully urges this court to decide the appeal on 
the merits and not remand for additional years of delay in the 
district court. Another remand would only foster "the ossifica­
tion of rights which attends inordinate delay." Hines v.D'Artois, 531 F. 2d 726, 737 (5th Cir. 1976) (denial of stay).

Should this court not decide the issues which could be deter­
mined on the noticed record, appellant would respectfully urge 
the court to at least make the clearest statement possible on the 
legal issues and leave only specified factual issues for remand.

-  13 -



deadly force; that shooting unarmed fleeing felons is related 
to the officer's subjective notions of punishment; and that the 
Memphis policies of shooting fleeing property crime suspects, 
use of "dum-dum" bullets, and training and discipline were all 
deficient. App. 765-76.

Part 2 consists of the affidavit of Dr. Lawrence W. Sherman 
who would have testified that even minor changes in deadly force 
guidelines have a salutary impact on police shootings. In his 
opinion, strict enforcement of guidelines is the most effective 
way to reduce unnecessary shootings. Training is important; 
simulations provide the best means of enabling the officer to. 
make the split-second decisions called for in police work. The 
Memphis policy, he concludes, is deficient in not stressing alter­
natives to deadly force. App. 777-86.

Part 3 is the affidavit of Dr. James J. Fyfe which presents 
the statistical data detailed above. Dr. Fyfe also would have 
testified that administrative action can and does reduce unneces­
sary shootings. App. 790.

ARGUMENT
I. 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 VIOLA­
TION OF THE DUE PROCESS CLAUSE

The Fourteenth Amendment provides every person with
protection against punishment without due process of law.... For under the Due Process Clause, a [person] may 
not be punished prior to an adjudication of guilt in 
accordance with due process of law.

-  14 -



Bell V. Wolfish, 441 U.S. 520, 535 (1979). Accord, Ingraham v. 
Wright, 430 U.S. 651, 671-72 n. 40 (1977); Kennedy v. Mendoza- 
Martinez, 372 U.S. 144, 165-67 (1963); Krause v. Rhodes, 570 F. 2d 
563, 572 (6th Cir. 1977). The shooting of Edward Eugene Garner, 
an unarmed fleeing felony suspect who posed no danger to the 
officer or others, violated his rights under the Due Process 
Clause because it "amount[ed] to punishment." Wolfish, supra,
441 U.S. at 535.

Determining whether a particular sanction is punishment is a 
"problem [that] has been extremely difficult and elusive of solu­
tion." Mendoza-Martinez, supra, 372 U.S. at 168. To make that 
determination, a "court must decide whether the disability is 
imposed for the purpose of punishment or whether it is but an 
incident of some other legitimate governmental purpose." Wolfish, 
supra, 441 U.S. at 538. In Wolfish, the Court cited the seven 
Mendoza-Martinez criteria as "useful guideposts" for making that 
determination:

Whether the sanction involves an affirmative dis­
ability or restraint, whether it has historically been 
regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation 
will promote the traditional aims of punishment —  retribu­tion and deterrence, whether the behavior to which it 
applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable 
for it, and whether it appears excessive in relation to the alternative purpose assigned....

Mendoza-Martinez, supra, 372 U.S. at 168-69 (footnotes omitted).
The application of these seven criteria to the Memphis use of
deadly force policy, in the absense of expressed intent, over-

-  15 -



whelmingly points in only one direction: the use of deadly force
to apprehend an unarmed fleeing felony suspect is, in purpose and
effect, punishment.

1) The imposition of death is the ultimate "affirmative 
disability or restraint," depriving the victim of "the right to 
have rights." Furman v. Georgia, 408 U.S. 238, 290 (1972)
(Brennan, J., concurring). See also Screws v. United States,
325 U.S. 91, 188 (1945) (Rutledge, J. concurring); Woodson v.
North Carolina, 428 U.S. 280, 323 (1976) (Rhenquist, J., 
dissenting).

2) The historical underpinnings of the fleeing felon
doctrine strongly suggest that the shooting of fleeing felons
was regarded as punishment. As late as the 15th century in
England and in 18th century in America, all felonies —  murder,
rape, manslaughter, robbery, sodomy, mayhem, burglary, arson,
prison break, and larceny —  were punishable by death; the flee—

12/ing felon doctrine merely accelerated the penal process. Early
commentators described "the extirpation [as] but a premature execu—

13/tion of the inevitable judgment---" "His killing was at best
an extrajudicial and premature execution of a penalty which he had

12/ Comment, Deadly Force to Arrest: Triggering ConstitutionalReview, 11 Harv. Civ. Rights-Civ. Lib. L. Rev. 361, 365 (1974); R. 
Perkins, CRIMINAL LAW 10 (2d ed. 1969).
13/ Note, Legalized Murder of a Fleeing Felon, 15 Va. L. Rev.T82, 583 M9291. See also Note. The Use of Deadly Force in Arizona 
by Police Officers, 1972 L. & Soc. Order 481, 482 ("It made little difference if the suspected felon were killed in the process of 
capture, since, in the eyes of the law he had already forfeited his 
life by committing the felony.")

-  16 -



already incurred by his felony." Moreover, the fleeing
felon doctrine grew out of an era when summary execution was
well ensconced in the law.

Thieves were often killed outright during the 
hue and cry, even after they had been captured.
"Let all go forth where God may direct them to 
go," urged the tenth-century laws of Edgar; "let 
them do justice on the thief." Suspicion 
sufficed to convict thieves without any trial at all, and "execution in such cases often 
followed immediately on arrest." According to 
the preamble to Act 24 of Henry VIII, it appears that the common law authorized the victims of 
crimes and attempted crimes to kill the criminal, 
regardless of whether it was necessary to 
prevent the felony. In the twelfth and thir­
teenth centuries "outlaws could be beheaded by 
anyone, and a reward was paid for their heads 
under Richard I." Abjurors of the realm (felons who had escaped into religious sanctuary and 
agreed to leave the country forever) who strayed 
from the highway on their journey to the sea could also be beheaded by anyone. In the 
context of the times in which the kill-to-arrest 
doctrine evolved, it was clearly linked to a 
philosophy of summary justice that can only 
be viewed as punishment.

Sherman, Execution Without Trial; Police Homicide and the Con­
stitution, 33 Vand. L. Rev. 71, 81 (1980) (footnotes omitted).

Even after the adoption of the Fourteenth Amendment, the 
fleeing felon doctrine was regarded as punishment. Speaking of 
the common law fleeing felon doctrine, Judge (later Justice)

± 4/

Brown said;
I doubt, however, whether this law would be 
strictly applicable at the present day.
Suppose, for example, a person were arrested for

14/ Bohlen & Schulman, Arrest With and Without a Warrant, 75 U. 
Pa. L. Rev. 485, 495 (1927).

-  17 -



petit larceny, which is a felony at the common law, might an officer under any circumstances 
be justified in killing him? I think not. The 
punishment is altogether too disproportioned to 
the magnitude of the offense.

United States v. Clark, 31 Fed. 710, 713 (C.C.E.D. Mich. 1887)
11/(emphasis added). Thus, historically, the shooting of a fleeing 

felony suspect has always been regarded as punishment.
3) & 5) The third and fifth of the seven Mendoza-Martinez 

criteria are, respectively, whether the sanction comes into play 
upon a finding of scienter and whether the behavior to which it 
applies is already a crime. The fleeing felon doctrine meets 
these two criteria of punishment. The "finding of scienter" is 
made by the police officer in his determination that there is a
'reasonable suspicion' 16/ that the fleeing suspect committed a
felony with its scienter requirement. The behavior to which the
sanction applies is already a crime; 17/ although there is some

15/ The issue in Clark was whether the shooting of an escaping 
military convict was murder. The court held that it was not, relying in part upon the special need for discipline in the military 
—  the victim having subjected himself by enlistment to a "military code of draconian severity," î . at 713 —  and in part upon the 
fact that the victim was already convicted. jM. at 714. Several 
municipal deadly force policies acknowledge thTs latter distinction, 
treating escaping convicts as a separate category. See App.
1203 and 1353.
16/ See Memphis Police Department Deadly Force Policy 5-74 
(February 5, 1974), App. 1275.
17/ Burglary is prohibited by Tenn Code. Ann. § 39.901 (1975). FTight is not a statutory crime, but it was a crime at common 
law. See n.18, infra. Memphis City Code § 30-15 makes it "unlawful" for any person "to escape from ... any officer or member of the 
police force." Violation of this section which prescribes no penalty, is subject to a maximum fine of $50. See Memphis City 
Code § 1-8.

-  18 -



doubt about which crime the victim is being shot for, "we are 
in fact killing the ... thief for the volatile combination of 
felony and flight, both of which are crimes." Sherman, supra, 33 
Vand. L. Rev. at 84.

4) The fourth of the Mendoza-Martinez criteria is whether 
the sanction promotes the traditional aims of punishment —  retri­
bution and deterrence. Death is society's most retributive sanc­
tion, the "ultimate penalty." Woodson, supra, 428 U.S. at 323.
The fleeing felony doctrine was historically viewed as merely 
accelerating punishment in an era when retribution (as contrasted 
with rehabilitation) was the primary goal of the penal law. More­
over, the courts themselves have indicated the retributive aspect 
of this sanction. In discussing the Tennessee fleeing felon 
doctrine in Wiley v. Memphis Police Department, 548 F. 2d 1247 
(6th Cir. 1977), the panel cited the observation of the dissent

1 1 /

18/ As cogently argued by Professor Mikell:
May I ask what we are killing him for when he' steals an 
automobile and runs off with it? Are we killing him for 
stealing the automobile? ... If we catch him and try him ..., what do we do to him? Put him before a policeman 
and have a policeman shoot him? Of course not. We give 
him three years in a penitentiary. It cannot be then that we allow the officer to kill him because he stole 
the automobile, because the statute provides only three 
years in a penitentiary for that. Is it then for fleeing? 
And again I insist this is not a question of resistance 
to the officer. Is it for fleeing that we kill him? 
Fleeing from arrest is also a common law offense and is punishable by a light penalty, a penalty much less than 
that for stealing the automobile.

9 A.L.I. PROCEEDINGS 186-87 (1931), quoted in J. Michael & H.
Wechsler, CRIMINAL LAW AND ITS ADMINISTRATION 80-82 n. 3 (1940).

-  19 -



in Mattis v . Schnarr, 547 F. 2d 1007, 1023 (8th Cir. .1976),
vacated on case and controversy grounds sub nom. Ashcroft v.
Mattis, 431 U.S. 171 (1977): "There is no constitutional right
to commit felonious offenses and escape the consequences of those
offenses." Wiley, supra, 548 F. 2d at 1253. The "consequences"

19/of criminal conduct are punishment.
Whether or not the shooting of fleeing felony suspects

20/actually has a deterrent effect, the record indicates 
that Memphis intends it for this purpose. Based on the testi­
mony of Mayor Chandler and Director Hubbard, who were also 
defendants in this action, the district court in Wiley, supra, 
found

that one of the principal purposes of Memphis' policy 
regarding use of deadly force insofar as they attempt to 
justify the possible death of fleeing burglary suspects, 
is to deter criminal conduct.

Wiley V. Memphis Police Department, Civ. Action No. C-73-8, Mem.
Op. at 13 (W.D. Tenn. June 30, 1975). See App. 962, 1832-33, and 
1848-50. Indeed, this is tantamount to evidence of subjective intent

19/ This line of reasoning assumes the guilt of the fleeing 
felony suspect. But flight is not necessarily an index of guilt; it is equally likely to be the result of immaturity. Thus, many of 
the prior cases have involved minors as victims. Wiley, supra; 
Qualls, supra; Mattis, supra; Jones v. Marshall, 528 F.2d 132 (2d Cir. r97Tn Here, Garner was only fifteen, and intoxicated. App. 
78 and 562-63. He had only one previous brush with the law for 
stealing a jar of pennies; he had been remanded to his parents' 
custody and he received a stern reprimand. App. 87-88. Whether a minor such as Garner was involved in a burglary or not, he would be 
likely to flee out of fear and immaturity.
20/ The proffered testimony of Dr. Fyfe is that his research 
indicates that it does not have a deterrent effect. App. 790.

-  20 -



to punish which alone suffices to invalidate the policy. Wolfish,
supra, 441 U.S. at 538; Mendoza-Martinez, supra, 3 72 U.S. at 

21/169.—
6) St 1 ) : Absent this evidence of intent, a sanction may yet

avoid the inference that it is a punishment if "an alternative 
purpose to which it may rationally be connected is assignable for 
it and ..." it does not appear "excessive in relation to the 
alternative purpose...." Mendoza-Martinez, supra, 372 U.S. at 
168-69. Analysis of possible alternative purposes, other than 
the professed deterrent aim, still points to punishment.

There are five alternative, non-punitive state interests in 
use of deadly force against criminal suspects: a) protection of
the lives and safety of the public at large; b) self-defense of 
the officer employing deadly force; c) prevention of the crime in 
which the suspect is engaged; d) apprehension of the suspect; and 
e) disabling the suspect, through apprehension, from committing a

21/ Moreover, the testimony offered below shows that this 
intention of punishment exists amongst law enforcement offi­
cials generally. Chief Bracey would have testified that:

From my experience it seems that shooting a fleeing 
felony suspect is mostly related to an officer's urge to punish a criminal. This instinct for punishment is 
especially strong when the suspect is thought to have just committed a violent crime. Much of the resistance 
we faced when the Department tightened its deadly-force regulations was grounded in the feeling that criminals 
deserved no chance of escaping punishment and that the 
punishment of being shot when fleeing from a police 
officer was not excessive.

App. 773.

-  21 -



similar crime in the indefinite future. For each of these,
the court must determine; whether the Memphis policy of shooting 
unarmed fleeing felony suspects is rationally connected to the 
alternative purpose; and, if it is, whether it is excessive in 
relation to that purpose.

a) and b) The safety interests; The safety interests enumerated 
as a) and b), respectively, are not assignable to the Memphis 
deadly force policy at issue in this case. As established above, 
young Garner had no weapon, threatened no one either during the 
commission of the alleged crime or afterward, and was not thought 
by the police officer to be armed. Thus, only that aspect 
of the Memphis deadly force policy that allows the shooting of 
unarmed, non-dangerous fleeing felony suspects is at issue 
here. That policy does not in any way advance the state's

22/ These alternative purposes may be garnered from a passage in 
the dissent in Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.
1976), cited with approval by the Wiley panel, 548 F. 2d at 
1253, and relied upon by the district judge. App. 59-60.

These interests include effective law enforcement, the 
apprehension of criminals, the prevention of crime and 
the protection of members of the general populace, who, 
like fleeing felons, also possess a right to life.

Mattis, supra, 547 F. 2d at 1023 (Gibson, D.J., dissenting). The 
"prevention of crime" interest includes prevention of the ongoing 
crime, the prevention of crime that results from the example set 
by the apprehension and prosecution of the suspect i.e., general deterrence, and the prevention of other future crimes 
that the suspect might commit if not captured —  i .e., incapaci­tation during the term of his incarceration and specific 
deterrence. The latter is in fact an aspect of punishment.

The police officer's interest in self-defense has been added 
to the Mattis list.

-  22 -



interest in protecting the physical safety of its citizens or 
its police officers, nor the officer's legitimate interest in 
self-defense.

c) and e) The crime prevention interests; The crime prevention 
interest enumerated as c), prevention of the crime in which the 
suspect is engaged, is not assignable to the Memphis use of deadly 
force policy. Memphis authorizes the killing of a felony suspect 
after the crime has been committed, as occurred in the instant 
case.

The crime prevention interest enumerated as e), on the other 
hand —  disabling the suspect from committing a similar crime in 
the indefinite future —  is rationally assignable to the Memphis

23/ Manifestly, in a case where the safety interests are properly 
presented, appellant would agree that these alternative interests 
would justify resort to deadly force and that deadly force under 
those circumstances would be non-punitive in nature. Appellant 
will not here discuss when those interests might or might not be 
properly implicated. It is sufficient that they were clearly not 
implicated in the instant case.

Safety interests are central to the regulations promulgated 
by other police departments to govern use of deadly force.Regulations vary widely in the degree of their restrictiveness, 
however, from strict standards which specify that officers can 
resort to firearms only in self-defense or to defend others from serious injury —  the standard employed for instance in 
Durham, Milwaukee, and New York City, App. 1234, 1280, and 1293 —  
to those which stipulate that police can resort to deadly force to apprehend suspects of violent felonies —  the policy of 
Boston, Chicago and Dayton, App. 1129, 1205-06, and 1217, —  to those which allow police to resort to firearms to apprehend fleeing 
suspects of specified felonies —  the policy used in Birmingham, 
Columbus and Pittsburgh. App. 1113, 1207, and 1326. Appellant 
takes no position on the constitutionality of these various 
standards.

For a discussion of the historical relevance of these interests see, infra, Point II at 35-37 & n. 38.
-  23 -



deadly force policy. App. 945-46 ̂ 1 1 49-50 , and 1 837. This is, 
however, an only partially non-punitive purpose. Criminal sen­
tencing serves to incapacitate the individual from committing 
further crimes during his incarceration and deter him, through 
punishment, from committing further crimes on release, sometimes 
called specific deterrence. The use of deadly force to incapaci­
tate is excessive in its permanency; and to the extent it perma­
nently disables the suspect from committing other crimes it 
takes the place of specific deterrence. Thus, the incapacita­
tion purpose cannot negate the inference of punishment arising

24/from the application of the other Mendoza-Martinez criteria.
The excessiveness of deadly force to effectuate this state 

interest is most clearly demonstrated by the Supreme Court's 
decision in Coker v. Georgia, 433 U.S. 584 (1977). There, the 
Court ruled that the imposition of the death penalty for rape 
violated the Eighth Amendment. It noted that "the Eighth 
Amendment bars ... punishments that are ... 'excessive' in 
relation to the crime committed." 433 U.S. at 591-92. Despite 
the exceptional severity of the crime of rape, ("Short of 
homicide, it is the 'ultimate violation of self.'" at
597),

... the death penalty, which "is unique in its severity 
and irrevocability," [Gregg v. Georgia,] 428 U.S. 187,

24/ The resort to deadly force to prevent a possible future 
crime is also excessive for reasons developed infra: apprehen­
sion and sentencing would accomplish the same purpose without 
loss of life, and there are other less excessive means of 
effecting eventual capture. See discussion, infra, at 25-26.

-  24 -



25/

is an excessive penalty for the rapist who, as such does not take human life.
Id. at 598.

The imposition of the death penalty would disable the 
rapist from committing other equally serious crimes in the 
future, and do so without chance of parole. But the killing of 
a rapist is excessive in light of his crime and, therefore, in 
light of any propensity he might h-ave to repeat that crime. 
Shooting an unarmed burglary suspect who might, it is specu­
lated, steal another $10 in the future is similarly excessive.'

d) The apprehension of the suspect; Of the five enumerated 
alternative puposes, this is the most clearly assignable to the 
fleeing felon doctrine generally and the Memphis deadly force 
policy particularly. The use of deadly force, however, is 
inherently excessive in light of this purpose. And, as used 
pursuant to Memphis' policies and customs, it is excessive both 
in terms of its execution and in terms of how readily it is 
resorted to.

First, shooting the fleeing felony suspect is an excessive 
response to the heed to apprehend in the sense that it is not 
necessary. The fleeing felon doctrine was more closely propor­
tioned to this aim during its development at common law, when 
there existed virtually no communication between law enforcement 
personnel in different towns and cities. Thus, the escaping sus-

25/ The relationship between the fleeing felon doctrine and the 
death penalty is explored at greater length, infra, at 35-37.

-  25 -



pect could easily establish a new life in another community 
with little fear of discovery and eventual capture. But, by the 
eighteenth century, authorities were circulating descriptions of 
wanted criminals outside of London. And, by the early twentieth 
century, American police officers consulted their colleagues in 
other cities about thieves and their whereabouts. Sherman, supra, 
33 Vand. L. Rev. at 76; Comment, Deadly Force to Arrest, 11 Harv. 
Civ. R. - Civ. Lib. L. Rev. at 365. The further development of 
bureaucratic police agencies armed with sophisticated means of 
communication has further reduced the need for using deadly 
force to apprehend fleeing felony suspects.

This is not mere speculation. Appellant's proffered 
experts, including Chief Bracey, would testify that the shoot­
ing of fleeing felony suspects is simply not necessary for 
effective law enforcement and the ultimate apprehension of the 
suspected felon. Communication with other officers and investi­
gation provide means of tracking down the suspect short of 
taking his life. If this is true for a large metropolis such 
as New York, it must logically hold true for other major cities 
whose geographic area and population are simply not as large 
and overwhelming. See App. 957-59.

Second, the shooting and killing of a fleeing felony 
suspect is an inherently excessive means of apprehension.
This is clearly illustrated by the language of the Tennessee

26/ Plaintiff's Offer of Proof, App. 769 App. 780; Fyfe, App. 790.
-  26 -

See also Sherman,



statute that authorizes Memphis' deadly force policy. Upon 
flight of the suspect, it allows that "the officer may use all 
the necessary means to effect the arrest." Tenn. Code Ann.
§ 40-808 (1975). But the officer in this case was never able 
to effect an arrest. After he had employed deadly force as he 
was taught, the only thing left to arrest was the corpse of 
Edward Eugene Garner.

This argument is more than rhetoric; analysis of the 
purposes of apprehension illustrates the excessiveness of 
deadly force employed to "effect an arrest." We apprehend 
a suspect for the purpose of turning him over to the judiciary. 
He is put on trial before a jury to determine whether he is 
guilty or innocent. Finally, he is brought before the court 
for sentencing —  a process which entails consideration not 
just of the need for punishment, but also the need and oppor­
tunity for rehabilitation. Shooting the suspect as a means of 
apprehension is excessive in light of these goals and the 
varied and important social interests behind them. It frus­
trates the deteirmination of guilt or innocence which is the 
purpose of apprehension. It obliterates both the substance and 
appearance of due process which is central to the operation of 
our criminal justice system. And, finally, it prevents the 
judicial determination of punishment that is the ultimate 
goal of the arrest process, frustrating the possible rehabili­
tative goals of the criminal justice system in favor of a

-  27 -



disposition that only promotes its punishment interests —  
retribution and deterrence.

Third, Memphis' use of deadly force policy is uniquely exces­
sive in its execution. Even assuming the appropriateness of 
using one's revolver to arrest a suspect, Memphis' policies, 
practices, and customs go beyond what is necessary. The
Memphis Police Department arms it officers with "dum-dum"

11/bullets and trains them to shoot at the target's torso caus­
ing a far greater risk that the resulting wound will be fatal."28/

27/ Captain Coletta testified that the reason for teaching recruits 
to aim for the torso was not related to police safety in any way; 
it did not create a better chance of neutralizing a dangerous 
suspect. App. 35.3-57. Rather, it is taught solely because the 
torso presents a greater target and thus reduces the chances of 
missing. App. 357-58.
28/ In Wiley, supra, this court quoted the opinion below which 
indicated that the defendants

testified that they shot without attempting to wound or 
incapacitate the fleeing two, and that they were trained 
whenever they use their firearms to "shoot to kill."

548 F. 2d at 1250. See App. _____
an officer to aim for an extremity, 
vides guidelines to its officers governing 
and when to shoot to wound.

1807-08. Other municipalities require
The Peoria Police Department pro- 

when to shoot to kill 
Under Illinois law, Peoria officers can

only employ deadly force when the felony is a forcible one or when the escapee otherwise indicates that he will endanger human 
life if not apprehended. App. 1303-04. See also App. 1319.

The only testimony in the record is that of Captain Coletta of the Memphis Police Department who, when asked whether he could 
or would teach recruits the marksmanship necessary to be able to shoot and hit a person's extremities, said: "Certainly I would."
App. 352. He went on to say, however, that he did not have the 
time, budget, or recruit talent to do it sucessfully. App. 352-53. 
Coletta took the position "that the budgetary requirements are 
not the concern of this court." But the result of these "bud­
getary requirements" is constitutional violations. It has long been 
"obvious that vindication of conceded constitutional rights cannot

-  28 -



More importantly, the interplay of these two factors creates an
indelible impression upon the Memphis police officer that the
policy of the Police Department is one encouraging use of one's 

29/revolver.
Other policies, practices, and customs of the Memphis Police 

Department also encourage the quick resort to the use of deadly 
force without a proper effort to exhaust other alternatives.
These policies and customs include inadequate training in alter­
natives to deadly force; inadequate stress, both in the written 
policy and in training, on the necessity of exhausting other 
reasonable alternatives; and an offficial policy, evidenced by 
pronouncements of the mayor, App. 1632 and 1825-28, and the miserable
failure of Memphis Police Department disciplinary procedures, App.

30/547 and 1858, to review and control firearm discharges. The 
proximate result is the excessive use of deadly force in situations 
where it is not necessary in order to apprehend the suspect.

28/ continued
be made dependent upon any theory that it is less expensive to deny than to afford them." Watson v. City of Memphis, 373 U.S. 
526, 537 (1963). See also Gates v. Collier, 501 F.2d 1291, 
1319-20 (5th Cir. 1974); Williams v. Edwards, 547 F.2d 1206, 
1212-13 (5th Cir. 1977).
29/ Chief Bracey would testify that "a definite message was transmitted when [Memphis] reiterated its policy of shooting 'to 
stop' and at the same time introduced the use of dum-dum bullets. 
The message transmitted to line officers would seem to suggest 
the department's support of firearm use." App. 773.
30/ See discussion, infra. Point V.

-  29 -



Two incidents are sufficient to illustrate this point. On
the night of January 12, 1972, two Memphis police officers stopped
Eddie Hugh Madison, 14, and Walter Lee Williams, 17, in a stolen
auto. Eddie Hugh Madison ran from the scene. He was fired upon
three times by an officer using a .12 gauge shotgun and once by
an officer using his service revolver. This incident occurred on
a Memphis city street, not in a back alley or wooded area. During
a pre-trial deposition, the officer was asked whether he first
cbnsidered other alternatives before resorting to the use of
deadly force. He testified that he made sure that his line of
fire was clear so that he would not injure any bystanders. The
officer made no effort to pursue the fourteen year-old suspect
down the uncrowded and uncluttered city street. Indeed, he never

11/even considered it. App. 844-45. Similarly, in the
instant case, the officer was a mere 30 feet away from young 
Garner during the entire confrontation. He made no effort to 
advance on the suspect and apprehend him by the use of non-deadly 
force. He did not, simply because the training he received from 
the Memphis Police Department told him that he could always resort 
to the use of his gun if the suspect attempted to flee. Thus, 
the Memphis liberal use of deadly force policy encourages lax 
police procedures; it encourages police officers to employ

31/ The Madison case was settled on the eve of trial. Madison 
V. Memphis Police Department, Civ. Action No. C-73-21 (W.D. Tenn. 
Jan. 4, 1980). Appellant tenders the testimony of the officer 
for its own weight and intends that no inference be drawn from 
the fact of settlement.

-  30 -



excessive force in effecting an arrest rather than to exert 
themselves in an effort to capture a fleeing suspect, as 
occurred in this and other cases.

In conclusion, analysis of the Memphis deadly force policy in 
light of the Mendoza-Martinez criteria overwhelmingly leads to 
the conclusion that it amounts to punishment. It is an "affir­
mative disability [and] restraint" of the highest order. It has 
historically been regarded as punishment. It is applied only for 
behavior that is a crime, after the officer has made a determina­
tion that the suspect has probably committed a crime which requires 
scienter. It promotes the traditional punishment aim of retribu­
tion and is specifically intended as a deterrent. And finally, 
while there are two alternative puposes to which it is rationally 
assignable, it is excessive in relation to those purposes. Thus, 
one cannot escape the conclusion that the Memphis policy authoriz­
ing the shooting of unarmed fleeing felony suspects who pose no 
danger to the arresting officer or others is punishment in viola­
tion of the Due Process Clause. This conclusion is bolstered by 
the fact that even if it were acceptable as punishment, it would 
be unconstitutional as cruel and unusual punishment since it is 
grossly out of proportion to the severity of the offense. Coker, 
supra.

Finally, the application of these criteria and the conclusion 
they compel cannot be avoided because, as noted by the court 
below, "the policy determination [when to use deadly force] should 
be a legislative decision." App. 6_0. The Due Process Clause

-  31 -



proscribes punishment before trial. ."Mechanical deference to the 
[legislature] ... would reduce that provision to a nullity in 
precisely the context where it is most necessary." Spain v. 
Frocunier, 600 F.2d 189, 193-94 (9th Cir. 1979) (application of 
Eighth Amendment to prison conditions). The Mendoza-Martinez test 
must be applied by the court, "mindful that these inquiries spring 
from constitutional requirements...." Wolfish, supra, 441 U.S. at 
539.

II. THE USE OF DEADLY FORCE UNDER THESE CIRCUMSTANCES DEPRIVESTHE VICTIM OF HIS RIGHT TO LIFE IN VIOLATION OF THE DUE 'PRO­
CESS CLAUSE BECAUSE IT IS NOT JUSTIFIED BY COUNTERVAILING 
STATE INTERESTS
Edward Eugene Garner was shot and killed by a Memphis police

officer despite the fact that he presented no danger to that
officer or others. "The deceased's interest in life plainly
was of constitutional dimension. U.S. Const, amend. XIV, § 1."
Williams v. Kelly, 624 F.2d 695, 697 (5th Cir. 1980). Since

32/life is a "fundamental" right, its deprivation "may be 
justified only by a 'compelling state interest' ... and ...

32/ The constitutional right to life is explicitly guaranteed by the Constitution and inherent in the constitutional framework, 
See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) ("the ■Fundamental rights to life, liberty and the pursuit of happi­
ness"); Johnson v. Zerbst, 304 U.S. 458, 462 (1938) ("fundamen­
tal human rights of life and liberty"); Screws v. United States, 325 U.S. 91 131, 132 (1945) (Rutledge, J., concurring) 
(life is among the "clear-cut fundamental rights"); j^. at 
134-35 (Murphy, J., dissenting) ("He has been deprived of 
the right to life itself.... That right was his because he was an American citizen, because he was a human being. As such, he 
was entitled to all the respect and fair treatment that befits the dignity of man, a dignity that is recognized and guaranteed 
by the Constitution."); May v. Anderson, 345 U.S. 528, 533 
(1953) (a right "far more precious than —  property rights").

-  32 -



legislative enactments must be narrowly drawn to express only
the legitimate state interests at stake." Roe v. Wade  ̂ 410

33/U.S. 113, 155 (1973). See also Cleveland Board of 
Education v. LaFleur, 414 U.S. 632 (1974); Stanley v. Illinois,
405 U.S. 645 (1972). In order to justify the deprivation of a 
right as fundamental as life, the state must demonstrate the 
existence of interests equivalent to or otherwise sufficient to 
counterbalance the right that is curtailed —  i.e., the use of 
deadly force must not be excessive. Williams v. Kelly, supra, 624 
F. 2d at 697-98; Johnson v. Click, 481 F. 2d 1028, 1030 (2d Cir. 
1 9 7 3 ); Ayler v. Hopper, Civil Action No. 80-341-N (M.D. Ala. April, 
29, 1981).

The district court held that
the interest of the state in effective law enforcement, the apprehension of criminals, and the prevention of 
crime outweigh the interest of the fleeing felon in 
this matter.

App. This recitation of state interests is a paraphrase
of the dissent in Mattis v. Schnarr, 547 F. 2d 1007, 1023 (8th
Cir. 1976), quoted in Wiley, supra, 548 F. 2d at 1253; they are

34/the very interests discussed, supra, at 22 and n. 22. as 
developed there, however, only when a police officer is

33/ The criticism most frequently leveled at the decision in Roe "  that the constitutional right of abortion cannot be derived 
either "from the intent of the framers, or from the governmental system contemplated by the Constitution," Ely, The Wages of Cry­
ing Wolf; A Comment on Roe v. Wade, 82 Yale L.J. 920, 928 (1973) 
—  is not available in the instant case.
34/ "[Ejffective law enforcement" was not discussed, supra,  ̂
because it is merely a generic term which includes apprehension, 
prevention and protection. The only other possible meaning is punishment, either in the sense of retribution or deterrence, 
and that interest is not available to justify the policy as is 
noted in Point I, supra.

-  33 -



confronted with a situation where the actions of the victim —  
either while committing a felony or other crime, while fleeing 
a crime, or otherwise —  threaten his life or that of another, 
does "the interests of the state in protecting the lives and
safety of its citizens __," Mattis, supra, 547 F. 2d at 1019,
coupled with the immediate nature of the need for action, 
justify the use of deadly force. Absent the life threaten­
ing circumstance, the state's interest in the use of deadly 
force pales. What is presented then is the lesser state 
interest in law enforcement generally. In that case, death —
which "is unique in its severity and irrevocability," Coker,

3 5 /supra, 433 U.S. at 598, —  is an excessive state response.

As noted by the Chief Justice:
Freeing either a tiger or a mouse in a school room 

is an illegal act, but no rational person would suggest that these two acts-should be punished in the same way. 
From time to time judges have occasion to pass on regu­lations governing police procedures. I wonder what 
would be the judicial response to a police order authori­zing "shoot to kill" with respect to 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 a car thief, a pickpocket or a shoplifter.

Bivens v. Six Unknown Agents, 403 U.S. 388, 411 (1971) (Burger,
C.J., dissenting). Based on this, the district court in Ayler,
supra, concluded that:

35/ Commenting on the figures provided by plaintiff's statistical 
expert, James J. Fyfe, that 50.7% of all Memphis police shootings 
involve property crime suspects, App. 791, Chief Bracey would 
note that "such a trend seems wrong and excessive...." App.
774.

-  34 -



to the extent that Ala. Code §13A-3-27 (Supp. 1980) purports to authorize the use of deadly force in situations 
where the use of deadly force is not necessary to prevent 
imminent, or at least a substantial likelihood of, death 
or bodily harm —  as the statute clearly appears to do —  
it is unconstitutional.

36/Id., Slip Op. at 5 (footnote omitted).
Even if this court were to consider the state's punishment 

interest in retribution and deterrence —  interests not available 
to justify the use of deadly force because of the principles 
developed in Point I —  it would still have to conclude that 
these interests cannot justify the imposition of death. For these 
interests exist at the time of sentencing as well, and they are 
not sufficient to justify the imposition of death even for a 
crime as severe as rape. Coker, supra. A fortiori, they cannot 
justify the imposition of death for a lesser crime, even with 
"the volatile combination of felony and flight...." Sherman, 
supra, 33 Vand. L. Rev. at 84.

The historically inextricable connection between capital 
punishment principles and the fleeing felon doctrine confirms 
this conclusion. Under common law, felony was usually used to 
refer only to crimes punishable by death. "[T]he idea of 
felony is indeed so generally connected with that of captial 
punishment, that we find it hard to separate them." 4 W.
Blackstone, COMMENTARIES 98 (1800). In its early development.

36/ Ayler involved the shooting of a convicted felon who had escaped from prison. If anything, the state's interest in use of 
deadly force in that circumstance is stronger. See discussion, 
supra, n. 15 and accompanying text.

-  35 -  I



the statutory law of Tennessee largely assimilated this common 
law norm. When Tennessee first codified the fleeing felony 
doctrine in 1858, and during the period following enactment of 
the Fourteenth Amendment, the Tennessee code prescribed the 
death penalty for a large number of crimes. Pub. Stats, of 
Tenn. §5 (Supp. 1858-1871). However, as the nineteenth century 
proceeded, the felony label became attached to a broadening 
array of non-capital crimes. Comment, Deadly Force, supra, 11 
Harv. Civ. R.- Civ. Lib. L. Rev. at 366-67.

As long as many felonies were punishable by death, authorizing
deadly force to effect the arrest of felony suspects was not
without its logic. For a suspect fleeing a death penalty could
be assumed to be a desperate person, motivated to resist arrest

37/by all possible means. But the days have long since passed 
when ”[t]o be a suspected felon was often as good as being a dead 
one." T. Taylor, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 28 
(1968). Crimes once considered capital offenses are no longer 
viewed as violations punishable by death. In Tennessee and through­
out the nation, the use of the death penalty has been severely 
curtailed so that it is available only for crimes causing loss of 
life under special, aggravating circumstances. See Gregg v. 
Georgia, 428 U.S. 153 (1976); Coker v. Georgia, 433 U.S. 584 
(1977).

37/ This is reflected in the Tennesse statute at issue here 
which is entitled "Resistance to Officer" and authorizes 
the use of deadly force if the suspect "either flee or forcibly 
resist...." Tenn. Code. Ann. §40-808.

-  36 -



Thus the original premises which made the fleeing felon
doctrine compatible with the severity of the offense are

38/incompatible with modern developments. A dangerous
anachronism, the doctrine should be consigned to the history
that produced it. As Justice Holmes once wrote:

It is revolting to have no better reason for a rule of 
law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it 
was laid down have vanished long since and the rule 
simply persists from blind imitation of the past.

Holmes, The Paths of the Law, 10 Harv. L. Rev. 457, 469 (1909).

III. MEMPHIS' POLICY AUTHORIZING THE SHOOTING OF NON-DANGEROUS, 
FLEEING PROPERTY CRIME SUSPECTS VIOLATES THE EQUAL PROTEC­TION CLAUSE BECAUSE IT IS RACIALLY DISCRIMINATORY

The arbitrary infliction of death, in a manner so "wanton"

38/ As previously noted, the doctrine was developed in an age 
when law enforcement personnel did not communicate with one another. 
Thus, the successful fleeing felony suspect could evade both apprehension and punishment, establishing a new life elsewhere.
The development of sophisticated means of communication and the 
increasing communication between different departments has removed 
this need for the doctrine.

Technological advances in weaponry have also helped to destroy the basis for continued adherence to the doctrine.
During the the early years of the doctrine, weaponry was limited to armaments wielded by hand —  swords, farm tools, 
and halberds. And even after the invention of the musket, its 
inconvenience and inaccuracy prevented police use of ballistic weapons. Sherman, supra, 33 Vand. L. Rev. at 75. In this 
technological context, the practical meaning of the deadly force doctrine was’ that suspects could be killed if they 
resisted arrest in a hand-to-hand struggle, see n. 37, supra; 
it did not mean that they could be killed from a distance while they were in flight. These practical considerations were decisively changed by the widespread use of revolvers, beginning 
in the 1850's. C. Kennet and J. Anderson, THE GUN IN AMERICA 
22 (1975). For accurate and powerful handguns allowed, and 
continue to allow, the police to shoot fleeing suspects who 
pose no immediate threat to anyone.

-  37 -



and "freakish" as to be "cruel and unusual," was enough to invali­
date the imposition of the death penalty without adequate proce­
dural safeguards. Furman v. Georgia, 408 U.S. 238, 309, 313 
(1972) (Stewart, J., concurring; White, J., concurring). Here,
the imposition of death, while having its wanton and freakish 

39/character, is only explainable by one non-arbitrary factor:
the race of the property crime suspect. Thus, this case
presents the issue not decided in Furman, that is:

If a statute that authorizes the discretionary imposition 
of a particular penalty for a particular crime is used 
primarily against defendants of a certain race, and if 
the pattern of use can be fairly explained only by refe­
rence to the race of the defendant, the Equal Protection 
Clause of the Fourteenth Amendment forbids continued 
enforcement of that statute in its existing form. Cf.
Yick Wo V. Hopkins, 118 U.S. 356 (1886).

Id. at 389 n. 12 (Burger J. dissenting).
In Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252 (1977), the Supreme Court discussed what is necessary to
prove that a particular policy or law is discriminatory.

[Washington v.] Davis does not require a plaintiff to prove that the challenged action rested solely on racially 
discriminatory purposes. Rarely can it be said that a 
legislature or administrative body operating under a 
broad mandate made a decision motivated solely by a 
single concern, or even that a particular purpose was 
the "dominant" or "primary" one....

38/ continued
The effects of the revolutions in police communication and- 

weaponry have been compounded by the changes in our legal under­
standing of what constitutes a felony and in the applicability of 
the death penalty noted in the text.
39/ This is illustrated by defendant's descriprion of 114 occasions in which force was used against fleeing property 
crime suspects resulting in death or woundings on 33 occasions 
(17 deaths; 16 woundings). App. 1460-69.

-  38 -



Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into 
such circumstantial and direct evidence of intent as may 
be available. The impact of the official action —  whether it "bears more heavily on one race than another," 
Washington v. Davis, supra, at 242, 48 L. Ed. 2d 597, 96 S.Ct. 2040 —  may provide an important starting point. 
Sometimes a clear pattern unexplainable on grounds other 
than race, emerges from the effect of the state action 
even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 
6 S.Ct. 1064 (1886)___
The historical background of the decision is one eviden­
tiary source, particularly if it reveals a series of 
official actions taken for invidious purpose....

Id. at 265-67.
Here, the Memphis policy authorizing use of deadly force

against non-dangerous fleeing property crime suspects clearly
"bears more heavily on one race than another" and is "unexplainable
on grounds other than race." Just a sample of the statistical
evidence offered below illustrates this significant disparity.
Blacks accounted for 84.21% of the property crime suspects shot
by Memphis police between 1969 and 1974, although blacks comprise
only 70.5% of those arrested for property crimes. Controlling
for differential involvement in property crimes, blacks were more
than twice as likely to be shot at (4.33 per 1000 blacks; 1.81
per 1000 whites), four times more likely to be wounded (.586 per
1000 versus .1113 per 1000), and 40% more likely to be killed (.6340/
per 1000 versus .45 per 1000). App. 792-93.

40/ Evidence produced at the Wiley trial confirms this data. Although the Wiley statistical data covered a shorter period, 
1969-1971, it indicated that blacks were shot at disproportion­
ately in relation to the racial breakdown of property crime 
arrests, and that this disproportion was significant at the .02

-  39 -



Comparison of shootings by Memphis Police officers while con­
trolling for race of the victim and nature of the incident pro­
vides similarly striking data. Analysis of the shooting incidents 
between 1969 and 1976 collected by the Civil Rights Commission 
shows a dramatic disparity between the situations where whites 
were killed and those in which blacks were killed. Of the blacks 
shot, 50% were unarmed and nonassaultive, 23.1% assaultive but 
not armed with a gun, 26.9% assaultive and armed with a gun.
Of the whites shot, only one was non-assaultive (12.5%), five 
(62.5%) were armed with a gun, and the remaining two (25%) were 
assaultive but not armed with a gun. Based on this data, 
appellant's proffered expert would testify that Memphis police 
are far more likely to shoot blacks than whites in non-threatening 
circumstances and that the great disparity in blacks shot by 
Memphis police officers is largely accounted for by the policy 
allowing the shooting of non-dangerous fleeing felons. Between
1969 and 1976, Memphis police killed 2 unarmed, non-assaultive41/
blacks for each armed, assaultive white. App. 793-94.

Moreover, the historical background of the Memphis Police 
Department is one of entrenched racism in employment, promotion.

40/ continued
level (less than two chances in 100 that the difference was 
due to chance). In contrast, the number of black violent crime 
suspects who were shot at was proportional to the racial 
breakdown of violent crime arrests. App. 1589-92, 1559-62 and 
1769-77.
41/ Fyfe points out that these figures are not statistically 
signifleant due to the extremely small sample involved. Id.

-  40 -



and law enforcement. In 1974, when young Garner was shot,
blacks made up only 10% of the force and only 3.1% of the officers 
over lieutenant (there were no blacks higher than captain) in a 
city that was almost 40% black.—  The department was repeatedly 
the agent of enforcement of the segregation laws in the 60's, App. 
1539-40, engaging in racial abuse and brutality during the sanita­
tion strike in 1968. App. 1571-75. A 1970 NAACP Ad Hoc Committee 
Report concluded that; "the most common form of address by a 
Memphis policeman to a black person appears to be 'nigger.'” App. 
1671. And, it was acknowledged by Mayor Chandler that, as late as
1972;

The black community, speaking generally and in a broad sense, perceives the police department as having consis­
tently brutalized them, almost their enemy instead of 
their friend.... [T]alking about in 1972, what you say 
is absolutely true and I would say almost across the 
board. 44/

App- 1828-29. See also App. 908-10, 928-32, 972-74, & 1 647-56_.

4 2 /

42/ As long ago as 1874, a "Resolution asking Police Board to put 20 colored men on force, lost by vote 16-3" before the City
Council. App. 1646.
43/ Community Relations Service, United States Department of 
Justice, Memphis Police and Minority Community; A Critique at 7 (May 1974), App. 1690. See also App. 910 & 974. That same year, an employment discrimination lawsuit brought by the Department of 
Justice was settled. The consent decree was designed to increase 
the hiring and promotion of black officers. United States v.— City 
of Memphis, Civ. Action. C-74-286 (W.D. Tenn. 1974).
44/ The Ad Hoc Committee Report, id., noted that;

The young black witnesses before the Committee testified to a man that the normal reaction to the approach of a 
patrol car is to run, for fear of the consequences of being stopped by the police. The belief is held by 
black youths that if they lean into a police car to answer questions, they will be trapped by the neck by a 
rolled-up window and dragged by the police car. While such a tale may partake of myth to a certain extent, an

-  41 -



Yet another factor confirms the racially discriminatory nature 
of the disparate impact of the Memphis policy regarding use of 
deadly force against non-dangerous fleeing property crime suspects. 
The evidence in Garner is that Memphis officers are, essentially, 
instructed to use their own judgment in determining when to use 
deadly force. See, e.g., App. 195-96. This consignment to the 
officer's discretion is "a ready mechanism for discrimination."
Rowe V. General Motors Corp., 457 F. 2d 348, 359 (5th Cir. 1972) 
(Title VII). £f. Avery v. State of Georgia, 345 U.S. 559, 562 
(1953) (discrimination in jury selection). "[A] selection proce­
dure that is susceptible of abuse or is not racially neutral 
supports the presumption of discrimination raised by the statisti­
cal showing." Castaneda v. Partida, 430 U.S. 482, 494 (1977), 
citing Washington v. Davis, supra, 426 U.S. at 241.

The statistics on rates of firearm discharges per 1000 Memphis 
police officers bear out this maxim that allowing these subjective 
determinations leads to racially discriminatory applications of 
what may appear to be a neutral policy. Between 1969 and 1974, 
there were 16.95 shootings of property crime suspects per 1000

44/ continued
adult witness —  a professional man of substantial community stature —  testified to seeing such an incident 
in his own youth. The fear of such torture is real 
among young blacks, and this fear is reinforced by the 
incidents of gratuitous harrassment and the often unplea­sant consequences. Young black male witnesses testified 
to verbal abuse and undignified searches; beating and 
shootings occur all too frequently. Police force in such cases was often not justified by findings in later 
judicial proceedings. Charges were either dropped or not 
lodged at all.

App. 1677-78.
-  42 -



Memphis police officers, about one in every 63 officers used his 
gun. During this period, whites were shot at a rate comparable 
to this over-all figure: about one officer in every 75, or a rate
of 14.27 shootings per 1000 officers. But, more than one in 
every five police officers shot at a black property crime suspect, 
a rate of 206.06 shootings per 1000 police officers. App. 792-93. 
See also App. 1858.

In conclusion, Memphis' policy allowing the shooting of non-
45/dangerous fleeing property crime suspects is discriminatory.

The policy "bears more heavily on one race than another ... [and 
it] is very difficult to explain on nonracial grounds...." Washing­
ton V. Davis, supra, 426 U.S. at 242. It must be read against an 
historical record of racism in the Memphis Police Department. 
Moreover, this racial discrimination is the result of the explicit 
policy consigning the decision when to shoot to the individual 
officer's "heavily subjective" discretion without prescribing 
adequate standards. Castaneda, supra, 430 U.S. at 497; Furman, 
supra, 408 U.S. at 389 n. 12. See Rowe, supra. This case, then, 
presents a state law and municipal policy

in actual operation, and the facts shown establish an 
administration directed so exclusively against a par­ticular class of persons as to warrant and require the 
conclusion that whatever may have been the intent of the 
ordinances as adopted, they are applied by the public authorities charged with their administration, and thus 
representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of the equal protection of the laws which is secur­
ed to the petitioner, as to all other persons, by the

45/ At the very least, appellant's proffer establishes a prima Tacie case of discrimination shifting the burden to the City 
to rebut. Castaneda, 430 U.S. at 443-96. The district court's 
misunderstandings, suppositions and attack on the "bias" 
of appellant's proffered expert testimony cannot suffice to fill 
this "evidentiary gap." at 499.

-  43 -



broad and benign provisions of the Fourteenth  Tiendment 
to the Constitution of the United States. Though the 
law itself be fair on its face and impartial in appear­
ance, yet, if it is applied and administered by public 
authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations 
between persons in similar circumstances, material to 
their rights, the denial of equal justice is still with­
in the prohibition of the Constitution.

46/Yick Wo V. Hopkins, 118 U.S. 356, 373-74 (1886).

46/ Memphis is chargeable with the discriminatory policy effec­
tuated by its officers. Yick Wo, supra. Moreover, it is respon­
sible for its own conduct. First, given the historical background 
of the Memphis Police Department and the lack of adequate justifi­cations for the policy other than historically outdated and now 
unsound considerations, see discussion, supra, Points I and II, 
"discriminatory intent may be inferred from the fact that those 
acts had foreseable discriminatory consequences." United States 
V. Texas Educational Agency, 564 F.2d 162, 168 (5th Cir. 1977). Second, under Monell v. Department of Social Services, 436 U.S.
658 (1978), the city is liable because it was the city's deadly 
force policy and customs —  including the consignment to the officer's discretion —  that "caused" the constitutional violation. 
Id. at 690-95. See discussion, infra. Point V. Third, faced with 
a consistent pattern on the part of its employees —  a pattern that 
was made known to the city by lawsuit after lawsuit and study after study —  the failure of the city to control this behavior is a 
ratification of this racial discrimination as city policy; it is "actual knowledge ... and acquiesce[nee]." See Turpin v. Mailet, 
579 F. 2d 152, 168 (2d Cir. 1978); Fialkowski v. Shapp, 405 F.
Supp. 946, 950 (E.D. Pa. 1975); Thompson v. Montemuro, 383 F. Supp. 1200, 1207 (E.D* Pa. 1974); Landman v. Royster, 354 F. Supp. 1302, 
1317-18 (E.D. Va. 1973). See also Wright v. McMann, 460 F. 2d 134 
(2d Cir. 1972); Stevens v. County of Duchess N.Y., 445 F. Supp. 89, 
91 (S.D.N.Y. 1977).

Finally, the fact that the officer who shot young Garner was 
black does

not dispel the presumption of purposeful discrimination in the circumstances of this case. Because of the many 
facets of human motivation, it would be unwise to pre­
sume as a matter of law that human beings of one defin­
able group will not discriminate against other members 
of their group.

Castaneda, supra, 430 U.S. at 499. The evidence of discriminatory intent and the practices of the Memphis Police Department confirms 
this observation. In 1974, Officer Hymon was only one of a still small minority of black officers on the Memphis police force.

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IV. 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

The use of "dum-dum" bullets violates the Constitution in 
three different ways. First, as previously noted, their use —  
coupled with the training to shoot for the torso in all situations 
—  constitutes as implicit policy to shoot to kill which encourages 
Memphis police officers to resort to deadly force when it is not 
necessary. It thus violates the appellant's decedent's right to 
life and right not to be subject to punishment. See discussion, 
supra, at 28-29.

Second, the use of armaments not accepted as humane by the 
international community and not in use generally in domestic 
police departments, see Plaintiff's Offer of Proof, App. 774, 
constitutes conduct which "shocks the conscience" and cannot be 
condoned by this Court. See Rochin v. California, 343 U.S. 165 
(1952). See also Johnson v. Click, 481 F. 2d 1028 (2d Cir. 1973).

Third, due process includes the "right of personal security" 
and protects "the individual's physical integrity." Jenkins
V. Averett, 424 F. 2d 1228, 1232 (4th Cir. 1970); Johnson v. Click, 
supra. The use of hollow-point bullets is excessive and therefore 
violates these rights. Johnson, supra. Appellant does not question

46/ continued
Given the depth of the racism in the department and the nature of 
Memphis' deadly force policy, it is not farfetched to infer that he too had been affected by the policy and custom of the department 
regarding use of deadly force against black suspects. See App. 975.

I
-  45 -  ;



the need for police officers to be sufficiently armed. But the
use of "dum-dum" bullets, banned by international law because of
their greatly enhanced wounding power, is clearly excessive and
therefore violates due process even when used in furtherance of
legitimate police action. See, e.g. , Jackson v. Allen, 376 F.
Supp. 1393 (E.D. Ark. 1974) (physical force used for legitimate
purposes violates due process if excessive for that purpose —
prison guards). The use of hollow-point bullets is excessive,
especially to stop an unarmed, non-dangerous fleeing felony
suspect, in the same way that the use of-a bazooka under these

11/circumstances would offend the court's sensibilities.

V. THE CONSTITUTIONAL VIOLATIONS ENUMERATED ABOVE FLOWED FROM 
THE POLICIES AND CUSTOMS OF THE MEMPHIS POLICE DEPARTMENT AND THE CITY OF MEMPHIS, RENDERING THE MUNICIPAL DEFENDANTS 
LIABLE FOR THE DEATH OF YOUNG GARNER
Under Monell, supra, the city is only liable if "action pursuant 

to official municipal policy of some nature caused a constitutional 
tort." 436 U.S. at 691. This case, like Monell, "unquestionably

47/ The district court has consistently felt that since young 
Garner might have been killed even if he had been shot with a 
regular bullet, the "dum-dum" bullet issue is irrelevant. App.
62. However, this ignores the relevance of the use of "dum-dum" 
bullets to the officers' perceptions of the municipal policy.
Also, it ignores black letter law that "if the consequences them­
selves were foreseeable, it is not necessary to foresee the manner 
in which they were brought about." W. Prosser, LAW OF TORTS 266 (4th Ed. 1971). See also Petition of Kinsman Transit Co., 338 F.
2d 708, 724 (2d Cir. 1964). Here, the defendant armed its officers with hollow-point bullets and trained them to shoot at the torso 
creating a greater risk of death. The fact that death in this 
instance resulted from a head wound does not change the culpability of defendant's conduct. In fact, death ensued "from the same 
forces, and to the same class of persons." Kinsman, supra, at 725.

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involves official policy as the moving force of the constitutional 
violation....” at 695.

As developed in Point I, Memphis' policy authorizing the 
shooting of non-dangerous fleeing felony suspects violates the 
Due Process Clause because it meets all the traditional tests 
indicating that the sanction amounts to punishment which cannot 
be inflicted before due process. Young Garner was shot pursuant 
to that policy "which allows an officer to kill a fleeing felon 
rather than run the risk of allowing him to escape apprehension." 
Garner, supra, 600 F. 2d at 54. Here, the officer did no more 
than follow that policy, as he "was taught." at 53.

Moreover, the evidence offered by appellant establishes that 
the customs of the Memphis Police Department caused the violations 
in this case. Here, officer Hymon was acting pursuant to a 
host of edicts, acts, and customs amounting to a well established 
policy of liberal resort to deadly force. These include Memphis' 
inadequate disciplinary and review procedures, its inadequate 
training in use of firearms, its inadequate training in when to 
use a firearm, its inadequate training in tactics and other alter­
natives to use of deadly force, and its overemphasis on use of 
deadly force —  particularly in light of the upgrading of its 
firepower to "dum-dum" bullets. When each of these Memphis policies 
and customs are contrasted to those of other departments as presented 
in the offer of proof, they fall short of what other departments 
do in order to minimize use of deadly force in situations where 
it is not necessary to defend life, or indeed to apprehend. The 
totality of these customs telegraphs the clear message to Memphis

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police officers that they can use deadly force without guidelines 
and with impunity. This is established by review procedures that 
discourage complaints regarding use of force generally, by consign­
ing the decision to shoot to their discretion and unguided judg­
ment, and by failing to teach and emphasize alternatives and tactics 
that would obviate the need for deadly force.

Moreover, appellant's expert testimony would establish that 
the content, style, and means of enforcement of municipal deadly 
force policies do have a demonstrable effect on police use of 
deadly force. Compare App. 964, 968-70, 976-77, & 980-83. A depart­
ment that adopts guidelines and applies them seriously will in fact 
reduce use of deadly force incidents. This has been the experience 
in New York where the adoption of strict guidelines and the inten­
sive retraining of veteran officers, extensive training of new 
officers, and serious and sustained administration of the guidelines 
has reduced firearm discharges by approximately 50% since 1973.
App. 769, 793, and 796. Moreover, this has been accomplished with 
an actual increase in officer safety and without appreciable effect 
on law enforcement. Id.

In sum, there can be little doubt that myriad Memphis polices 
and customs are implicated as the cause of the shooting death of 
appellant's son. "In this case. City officials did set the policies 
involved ... training and supervising the police force...." Leite 
V. City of Providence, 463 F. Supp. 585, 589 (D. R.I. 1978), 
exposing the city to liability under Monell. These policies not 
only cause constitutional violations, they are themselves violations 
of the constitutional rights discussed above. For:

-  48 -



If a municipality ... trains its officers in a reckless 
or grossly negligent manner so that future police mis­conduct is almost inevitable, the municipality exhibits 
"deliberate indifference" to the resulting violations of 
a citizen's constitutional rights. In such a case, the 
municipality may fairly be termed as acquiescing in and 
implicitly authorizing such violations. In light of the 
responsibility, authority, and force that police normally wield, a municipality is considered to have actual or 
imputed knowledge of the almost inevitable consequences that arise from the ... grossly inadequate training and 
supervising of a police force.

Leite, supra, 436 F. Supp. at 590-91. Here, there is evidence of 
such grossly inadequate training such as the testimony at the 
original hearing that new recruits are told to use their judgment 
to use deadly force, but not given adequate guidelines to structure 
that judgment, and in the heavy reliance in such training on the 
"Shoot/Don't Shoot" film, which appellant's expert Chief Bracey 
would testify has a negative effect on an inexperienced recruit, 
making him jumpy and more likely to employ deadly force. Moreover, 
as noted above, the policies and customs of Memphis go beyond 
this grossly negligent training to include practices that actually 
encourage unnecessary use of deadly force. These too constitute 
"deliberate indifference" to the constitutional rights of Memphis 
citizens under the Leite standard, as well as constituting policies 
and customs that make the city liable under Monell.

CONCLUSION
For the foregoing reasons, appellant contends that he is 

entitled to relief for the 1974 shooting death of his minor son 
and that the decision below should be reversed. He respectfully 
urges this court to decide all issues on the current record, 
together with the matters subject to judicial notice, and not

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remand for further years of delay in the district court. Should 
this court decide, however, that some further factual findings 
are necessary, he respectfully requests that this court: decide
all legal questions controlling decision in this case; remand 
only for factual findings; and expressly direct that a hearing be 
held after an opportunity for discovery.

Respectfully submitted.

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

Suite 2030 
10 Columbus Circle 
New York, New York 10019

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

Counsel for Plaintiff-Appellant

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I hereby certify that a complete and corrected copy of the 
foregoing 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

STEVEN L. WINTER 
Counsel for Plaintiff-Appellant