Motion for Leave to File and Brief for the Police Foundation et al. as Amici Curiae in Support of the Respondent-Appellee

    Nos. 83-1035  83-1070

In the
Supreme (Hourt of tlje ISnitcii ^tatco

October Term, 1984

THE STATE OF TENNESSEE,
Appellant,

CLEAMTEE GARNER, as Father and next of kin of 
ED W ARD  EUGENE GARNER, a Deceased Minor,

Appellee.

MEMPHIS POLIGE DEPARTMENT,
GITY OF MEMPHIS, TENNESSEE,

Petitioners,
V.

GLEAMTEE GARNER, as Father and next of kin of 
ED W ARD  EUGENE GARNER, a Deceased Minor,

Respondent.

ON APPEAL FROM AND ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT
MOTION FOR LEAVE TO FILE AND 

BRIEF FOR THE POLICE FOUNDATION, 
JOINED BY NINE NATIONAL and 

INTERNATIONAL ASSOCIATIONS OF 
POLICE AND CRIMINAL JUSTICE 

PROFESSIONALS, THE CHIEFS OF POLICE 
ASSOCIATIONS OF TWO STATES, and 

THIRTY-ONE LAW ENFORCEMENT CHIEF 
EXECUTIVES, AS AMICI CURIAE IN 

SUPPORT OF THE RESPONDENT-APPELLEE

(Attorneys Names on Reverse of Cover)



Of Counsel:
Robert K asanof, Esq.
767 Third Avenue
New York, New York 10017

W illiam  Josephson, Esq.* 
Fried, Frank, Harris, 

Shriver & J acobson 
(A partnership which includes 

professional corporations) 
One New York Plaza 
New York, New York 10004 
(212) 820-8220

Phillip L acovara, Esq.
Hughes, Hubbard & Reed 
1201 Pennsylvania Ave, N.W.
Washington, D.C. 20004

iMargaret Bush W ilson, Esq.
W ilson, Smith & Seymour 
4054 Lindell Boulevard 
Suite 100
St. Louis, Missouri 63108 *Counsel of Record



Nos. 83-1035
83-1070

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

THE STATE OF TENNESSEE,
APPELLANT,

V .

CLEAMTEE GARNER, AS FATHER AND NEXT OF KIN OF 
EDWARD EUGENE GARNER, A DECEASED MINOR,

APPELLEE.

MEMPHIS POLICE DEPARTMENT, 
CITY OF MEMPHIS, TENNESSEE,

PETITIONERS,
V

CLEAMTEE GARNER, AS FATHER AND NEXT OF KIN OF 
EDWARD EUGENE GARNER, A DECEASED MINOR,

RESPONDENT.

ON APPEAL FROM AND ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT





MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE

The Police Foundation, nine 
national and international associations of 
police and criminal justice professionals, 
the chiefs of police associations of two 
states and thirty-one law enforcement 
chief-executives hereby move this Court 
for leave to file the accompanying brief 
amici curiae.

The interest of amici is 
presented in the accompanying brief (in fra 
at 1-10) in detail. Each is an 
organization or individual police chief 
executive dedicated to the effectiveness 
of the police and the protection of the 
basic rights of citizens. As such, the 
amici are uniquely equipped to provide the 
Court with both factual information and 
policy perspectives that bear on the 
constitutional issues raised in this case.



More specifically, the issue in 
this case is the constitutionality of the 
Tennessee statute, Tenn. Code Ann.
§ 40-808 (1975) permitting police officers 
to "use all the necessary means to effect 
the arrest" of fleeing non-violent felony 
suspects. Garner v. Memphis Police 
Depar tment, 710 F.2d 240 , 241 (6th Cir. 
1983). Through long personal and 
professional experience, amici have 
particularized knowledge of the law 
enforcement considerations which arise in 
connection with deadly force laws, such as 
the Tennessee statute. By means of this 
brief, they seek to bring this knowledge 
to the attention of the Court.

Counsel for the appellant, the 
State of Tennessee, and for the 
respondent-appellee. Garner, have 
consented to the filing of this brief and 
their letters of consent are attached.



Counsel for the petitioner, Memphis Police 
Department, City of Memphis , Tennessee, 
has not responded to the request of 
counsel for amici for such consent.

Respectfully submitted,
/j/ UJiil
William vTosephson, Esq. 
Counsel of Record
Fried, Frank, Harris, 

Shriver & Jacobson 
(A Partnership which 

includes Professional 
Corporations)

One New York Plaza
New York, New York 10004
(202) 820-8220
Attorneys for Amici Curiae

August 6, 1984



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State of Tennessee 
Office of the Attorney 

General
450 James RoDertson 

Parkway
Nashville, Tennessee 

37219 5025
July 17, 1984

Mr. William Josephson 
Fried, Frank, Harris, Shriver 

& Jacobson 
One New York Plaza 
New York, NY 10004
Re: Consent to Filing Amicus Curiae
Dear Mr. Josephson:

This is in response to your 
letter dated June 27, 1984, requesting our 
consent to your tiling an amicus curiae 
brief in the case of State of Tennessee v. 
Garner, No. 83-1035 now pending in the 
Supreme Court of the United States. As 
Attorney General of Tennessee, I hereby 
give such consent.

Sincerely,

EMBLEM

/s/ W.J. Michael Cody
W.J. Michael Cody 
Attorney General 

& Reporter



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August 1, ib̂ 84
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

William Josephson 
Fried, Frank, Harris, Shriver 

& Jacobson 
One New York Plaza 
New York, New York 10004
Re; Tennessee v. Garner 

No. 83-1035
Memphis Police Department v GarnerNo. 83-1070

Dear Mr. Josephson;
This is to inform you that 

respondent-appellee, Cleamtee Garner, 
consents to the filing of an amicus brief 
on behalf of the Police Foundation, et 
al., in tne above noted case.

Sincerely,

/s/ Steven u. Winter
Steven L. Winter

cc; Walter L. Bailey, Jr. 
Henry L. Klein 
Jerry Smith 
David E. Birenoaum







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Nos. 83-1035 83-1070
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1984

THE STATE OF TENNESSEE,
APPELLANT,

V .

CLEAMTEE GARNER, AS FATHER AND NEXT OF KIN OF EDWARD EUGENE GARNER, A DECEASED MINOR,
APPELLEE.

MEMPHIS POLICE DEPARTMENT, CITY OF MEMPHIS, TENNESSEE,
PETITIONERS,

V .

CLEAMTEE GARNER, AS FATHER AND NEXT OF KIN OF EDWARD EUGENE GARNER, A DECEASED MINOR,
RESPONDENT.

ON APPEAL FROM AND ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE POLICE FOUNDATION, JOINED BY NINE NATIONAL and INTERNATIONAL ASSOCIATIONS OF POLICE AND CRIMINAL JUSTICE PROFESSIONALS, THE CHIEFS OF POLICE ASSOCIATIONS OF TWO STATES, and THIRTY-ONE LAW ENFORCEMENT CHIEF EXECUTIVES, AS AMICI CURIAE IN SUPPORT OF THE RESPONDENT-APPELLEE





TABLE OF CONTENTS

Table of Authorities., 
Interest of Amici.... 
Summary of Argument.., 
Statement of the Case

ARGUMENT............

Page 
i i 
1

11
12

14
I.

II.

Laws that authorize the
police to employ aeadly
force to apprehend all fleeingfelony suspects do not contribute
to the ability of the police to
fight crime or to protect
themselves................ 15
Affirmance will be consistent 
with most police department 
policies and practices and 
will not unduly intrude on 
criminal law enforcement.... 27

III. Laws that authorize police 
use of deadly force to 
apprehend all fleeing felony suspects fail adequately to 
guide police officer 
discretion.................

Conclusion,
40
47



TABLE OF AUTHORITIES

CASES

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).........
Chimel v. California,395 U.S. 752 (1969)......................
Delaware v. Prouse, 440 U.S. 648 (1979)...
Furman v. Georgia, 408 U.S. 238 (1972)....
Garner v. Memphis Police Department,
710 F.2d 240 (6th Cir. 1983)........
Katz V. United States,
389 U.S. 347 (1967)......................
Kolender v. Lawson,
103 S. Ct. 1855 (1983)...................
Mapp V. Ohio, 367 U.S. 643 (1961)........
Payton v. New York, 445 U.S. 573 (1980)... 
Rochin V. California,
342 U.S. 165 (1952)......................
Sibron v. New York, 392 U.S. 40 (1968)....
Werner v. Hartfelder, 113 Mich. App. 747, 
318 N.W.2d 825 (1982), appeal denied,418 Mich. 906, 342 N.W.2d 520 (1984).....
Wong Sun v. United States,
371 U.S. 471 (1963)......................

ii

48

38
38
41

14, 28

38

39 
38 
38

38
38

Page

29

38



UNITED STATES CONSTITUTION Page
Amendment IV..............................  13
Amendment VIII............................  13
Amendment XIV.............................  13
STATUTES
42 U.S.C. § 1981........................  13
42 U.S.C. § 1983........................  13
42 U.S.C. § 1985........................  13
42 U.S.C. § 1986........................  13
42 U.S.C. § 1988........................  13
Tenn. Code Ann. § 40-808 (1975)..........  13

OTHER AUTHORITIES

M. Blumberg, The Use of Deadly Firearms 
by Police Officers: The Impact of
Individuals, Communities^ and Race 
(Ph.D. Dissertation, State 
University of New York, Albany Sch. 
of Crim. Justice, Dec. 14, 1982)......
Brown, Use of Deadly Force by Police 
Officers; Training Implications,12 J. Pol. Sci. & Admin. 133 (1984)....,
A. Cohen, I've Killed That Man 10,000 
Times, 3 Police 17 (1980).............

iii

36

45

23



OTHER AUTHORITIES
Page

J. Fyfe, Administrative Interventions 
on Police Shooting Discretion: An
Empirical Examination  ̂
309 (1979)...........

7 J. Grim. Just

J. Fyfe, Observations on Police Deadly 
Force, 27 Grim. & Deling.

20

376 (1981) 37
G. Gain, Discharge of Firearms Policy: Effecting Justice Through
Administrative Regulation -- A 
Position Paper (Report released 
December 23, 1971 by Oakland Police Ghief Gharles Gain in 
explanation of a change in 
departmental deadly force policy), 
cited in W. A. Geller & K.J. Karales, Split-Second Decisions: 
Shootings Of & By Ghicago Police 
(1981)........................... 17-19
W.A. Geller, K.J. 
Second Decisions:

Karales, Split- 
Shootings Of

& By Ghicago Police (Ghicago Law 
Enforcement Study Group 1981)..., 35
G. Hayden, Police Discretion in the 
Use of Deadly Force: An Empirical
Study of Information Usage in Deadly 
Force Decision Making (1979)(unpublished paper available at the 
University of New Haven), cited in 
L. Sherman, Executon Without Trial:Police Homicide and the Gonstitution,
33 Vand. L. Rev. at 95 n.l50 (1980)....... 42-43

IV



OTHER AUTHORITIES
Page

J. Klenoski, 
Statements: Administrative Policy 

Deadly Force 1 (Delaware
Police Department, May 21, 1981) 25
K. Matulia, A Balance of forces: A
Report of the International Association 
of Chiefs of Police
(National Institute of Justice/U.S. 
Department of Justice 1982)........... 29,34
Memphis Police Department, Training 
Academy, General Order Number 95~79, Deadly Force Policy (July 16, 1979) ,
Jt. App. at 45, cited in J. Fyfe,
Blind Justice: Police Shootings in 
Memphis, 73 J. of Grim. L. & Grim.
722 (1982)......................
M. Meyer, Police Shootings at 
Minorities: The Gase of Los Angeles,
52 Annals 98 (1980)...................
G. Milton, J. Halleck, J. Lardner,
G. Abrecht, Police Use of Deadly Force, 
(Police Foundation 1977)..............
Model Penal Gode § 3.07(2)(b)
(Proposed Official Draft 1962)........
National Organization of Black Law Enforcement Executives, "Stop - Or I'll 
Shoot;" The Use of Deadly Force by 
Law Enforcement Officers (1982).......
Police Foundation, Readings on Police 
Use of Deadly Force (Fyfe ed. 1982)....

V

35

35

30



OTHER AUTHORITIES
Page

President’s Commission on Law 
Enforcement and the Administration 
of Justice^ Task Force Report;
The Police (1967)................. 21, 22 30
Program Commission on Accreditation 
for Law Enforcement Agencies, Inc.,
Standards For Law Enforcement Agencies 
The Standards Manual of the Law 
Enforcement Agency Accreditation
(Aug. 1983)....................... 31-32
Report of the National Advisory 
Commission on Civil Disorders(Bantam Books, 1968).................... 22
L. Sherman, Reducing Police Gun Use, 
in M. Punch, Control in the Police Organization 98 (Atlanta 1983)...........  20
Staff Report to the Michigan Civil
Rights Commission (May 18, 1981).........  29
C. Uchida, L. Sherman, J. Fyfe,
Police Shootings and the Prosecutor in Los Angeles County:
An Evaluation of Operation Rollout
(Police Foundation 1981)............... 2
G, Uelman, Varieties of Police Policy:
A Study of Police Policy Regarding 
the Use of Deadly Force in Los Angeles 
County, 6 Loy. L.A. L. Rev. 1 (1973) cited 
in U.S. Department of Justice,
A Community Concern: Police Use of
Deadly Force (1979)..................... 40

VI



INTEREST OF AMICI

The Police Foundation is a
private, non-profit organization 
established by the Ford Foundation in 1970 
with a mandate to improve the quality of 
American policing. It has trained police 
executives and managers tnrougnout the 
United States and abroad, and has 
conducted and puolisned more tnan 50 
research studies and experiments involving 
virtually every aspect of police policy 
and operations.

The Police Foundation's research 
on police use of deadly force has resulted
in publication of several articles in



professional periodicals and in three 
books and monographs. Readings on Police 
Use of Deadly Force (Fyfe ed. 1982); C. 
Milton, J. Halleck, J. Lardner, G.
Abrecht, Police Use of Deadly Force 
(1977); C. Uchida, L. Sherman, J. Fyfe, 
Police Shootings and the Prosecutor in Los 
Angeles County: An Evaluation of
Operation Rollout (1981). The Police 
Foundation has also served as a consultant 
and technical advisor to the National 
Association for the Advancement of Colored 
People (NAACP) on a United States 
Department of Justice funded project with 
respect to police deadly force policies 
and practices (Office of Community 
Anti-Crime, Grant No. 80-TA-AX-0004). In 
addition, the Police Foundation is 
presently engaged in a study of police use 
of deadly force in New York City and 
Philadelphia.



The Police Executive Research
I

Forum (PERF) is a District of Columbia 
non-profit corporation whose membership 
consists of police chiefs from the United 
States and Canada who serve jurisdictions 
with populations over 100,000. Eighty 
police chiefs are now general members, and 
their departments include approximately 20 
percent of all American police personnel. 
PERF conducts and publishes research 
responsive to the needs of its membership 
and the citizens they serve. It serves as 
a center for the collection and 
dissemination of information useful in 
improving police effectiveness, and was a 
co-author of the standards on the use of 
deadly force adopted by the Commission on 
Accreditation for Law Enforcement Agencies 
(infra at 30-32) .

The Police Management Association 
is a non-profit membership organization of 
400 police managers and executives from



the United States and ten other 
countries. PMA was incorporated in the 
District of Columbia in 1980, and is 
dedicated to upgrading police management, 
professionalizing police at all levels, 
and assisting police to protect the lives, 
rights, and property of all citizens.

The National Organization of 
Black Law Enforcement Executives (Noble) 
is a non-profit organization of 1,000 
professional command-level law enforcement 
officials representing all elements of 
federal, state, and local law 
enforcement. It is dedicated to improving 
the quality of criminal justice and police 
services for all citizens throughout the 
United States.

NOBLE unanimously adopted a 
resolution in 1980 advocating limiting 
police use of deadly force to the defense 
of an officer's life or that of another 
person. Research in this area by NOBLE



has resulted in the publication of a
monograph, "Stop - Or I'll Shoot;” The 
Use of Deadly Force by Law Enforcement 
Officers (1982) . NOBLE has been a 
co-author of the standards on the use of 
deadly force adopted by the Commission on 
Accreditation (infra at 30-32) and has 
provided technical assistance to the NAACP 
as well as a number of police agencies 
nationwide.

I

The Academy Of Criminal Justice 
Sciences (ACJS) is a non-profit membership 
organization incorporated in Nevada in 
1972. Its membership includes 
approximately 1,400 criminal justice 
educators and practitioners, representing 
all 50 states. The prime purpose of ACJS 
is to foster excellence in education and 
research in criminal justice.

The International Law Enforcement 
Instructors Agency (ILEIA) is a membership 
organization founded in Massachusetts in



1976. Its membership includes 850 
instructors in academia, police 
departments, police academies, state 
training councils, and allied 
institutions. ILEIA is dedicated to the 
improvement of criminal justice and 
related training and education.

The International Law Enforcement 
Stress Association (ILESA) is a non-profit 
membership organization incorporated in 
Massachusetts in 1978. Its membership 
includes 1,200 officials from local, 
state, and federal law enforcement 
agencies, as well as physicians, nurses, 
and social workers. ILESA is dedicated to 
reducing stress among law enforcement 
professionals in order to instill a more 
professional law enforcement ethic.

The National Association Of 
Police Planners (NAOPP) is a non-profit 
membership organization incorporated in 
Missouri in 1982. Its membership



inlcludes 240 federal, state, and local 
law enforcement planners in the United 
States and abroad. NAOPP is dedicated to 
the continuing effectiveness, improvement 
and professionalization of law enforcement.

The National Black Police 
Association (NBPA) is a non-profit 
membership organization of approximately 
15,000 officials in federal, state, and 
local law enforcement throughout the 
United States. NBPA is dedicated to 
improving law enforcement effectiveness, 
and to protecting the lives, rights, and 
property of all citizens.

The Reserve Law Officers 
Association of America (RLAOA) is a 
non-profit membership organization founded 
in 1969. Its membership includes reserve 
deputy sheriffs, auxiliary police, reserve 
deputy constables, police reserves, chiefs 
of police, sheriffs, constables, and law 
enforcement officers from 2,500 cities in



49 states. RLAOA is dedicated to 
increasing law enforcement professionalism 
through training, education, disseminating 
information, improving police-community 
relations, and eliminating use of 
unnecessary force.

The Kentucky Association Of 
Chiefs Of Police and the Utah Chiefs Of 
Police Association are non-profit membership 
organizations representing police chief 
executives in their respective states. All 
are dedicated to the continuing improvement 
and professionalization of policing, and 
to protecting the lives, rights, and 
property of the citizens they serve.

The following are police chief 
executives who join in this brief as 
individuals:

8



William C. Banner 
Chief of Police 
Corpus Christi, Tex.
Keith R. Bergstrom 
Chief of Police 
Oak Park, 111.
Robert V. Bradshaw 
Chief of Police 
Reno, Nev.
Thomas E. Coogan 
Chief of Police 
Denver , Colo.
Bernard D. Crooke 
Chief of Police 
Montgomery County, Md
John F. Duffy 
Sheriff
San Diego County, Cal
Donald G. Hanna 
Chief of Police 
Champaign, 111.
Richard A. King ^ 
Deputy County 
Executive for 
Public Safety 
Fairfax County, Va.

Cornelius J. Behan 
Chief of Police 
Baltimore, County Md
Anthony V. Bouza 
Chief of Police 
Minneapolis, Minn.
David Cameron 
Chief of Police 
Moscow, Idaho
David C. Couper 
Chief of Police 
Madison, Wis.
Raymond C. Davis 
Chief of Police 
Santa Ana, Cal.
Reuben M. Greenberg 
Chief of Police 
Charleston, S.C.
Charles Johnston 
Chief of Police 
Lakewood, Colo.
William B. Kolender 
Chief of Police 
San Diego, Cal.

Schuyler M. Meyer, 
Chief of Police 
Pompano Beach, Fla

III George Napper 
Director of 
Public Safety 
Atlanta, Ga.

Jerry Neal 
Chief of Police 
Amarillo, Tex.

Thomas J. Nichols 
Chief of Police 
Lubbock, Tex.



John P. O'Brien 
Sher iff
Genesee County, Mich.
Daryl Stephens 
Chief of Police 
Newport News, Va.
Charles T. Strobel 
Director of Public 
Safety

Alexandria, Va.
Melvin L. Tucker 
Chief of Police 
Tallahassee, Fla.
Robert Wasserman 
Chief of Police 
Fremont, Cal.
Hubert Williams 
Police Director 
Newark, New Jersey

All amici wish to improve the 
effectiveness of the police and to 
safeguard the basic rights of citizens.
The amici are uniquely equipped to provide 
the Court with both factual information and 
policy perspectives that bear on the 
constitutional issues raised in this case.

Charles M. Rodriguez 
Chief of Police 

San Antonio, Tex.
William K. Stover 
Chief of Police 
Arlington County, Va.
John L. Tagert 
Chief of Police Colorado Springs, Colo.

Robert C. Wadman 
Chief of Police 
Omaha, Neb.
Gerald L. Williams 
Chief of Police 
Arvada, Colo.

10



SUMMARY OF ARGUMENT 
After extensive research and 

consideration, amici have concluded that 
laws permitting police officers to use 
deadly force to apprehend unarmed, 
non-violent fleeing felony suspects 
actually do not protect citizens or law 
enforcement officers, do not deter crime or 
alleviate problems caused by crime, and do 
not improve the crime-fighting ability of 
law enforcement agencies. Thus, arguments 
based on these factors would not justify 
use of deadly force against fleeing 
non-violent felony suspects. Moreover, we 
have concluded that laws permitting use of 
deadly force in those circumstances are 
responsible for unnecessary loss of life, 
for friction between police and the 
communities they serve resulting in less 
effective law enforcement, and for an undue 
burden upon police officers who must make 
and live with the consequences of hasty 
life-or-death decisions.

1 1



STATEMENT OF THE CASE 
This case involves the fatal 

shooting of Edward Eugene Garner by a 
Memphis, Tennessee police officer. At the 
time he was shot. Garner was fifteen years 
old, stood five feet four inches tall, 
weighed between 85 and 100 pounds, and was 
fleeing from the scene of a reported 
burglary. The police officer who shot 
Garner has testified that, while 
approaching the unoccupied house that was 
the scene of the reported crime, he heard a 
screen door slam and saw a figure running 
into the rear yard. In a subsequent search 
of the rear yard, he saw Garner stooping 
next to a six-foot tall cyclone fence at 
the rear of the yard. The officer shouted 
"halt." After pausing momentarily. Garner 
ran and sprang to the top of the fence.
The officer, who correctly believed Garner 
to be unarmed, then fired his revolver, 
striking Garner in the right side of the

1 2



head. Garner fell, draped over the top of 
the fence, and died later that night at a 
hospital. It was later determined that he 
had broken into the house and had taken a 
ring and a wallet containing two five 
dollar bills. The officer testified that 
he fired because he believed that the boy 
would otherwise elude capture and because 
he had been trained that it was proper 
under Tennessee law to shoot fleeing felony 
suspects in such situations.

A suit was brought against the 
City of Memphis by Garner's father under 
authority of 42 U.S.C. §§ 1981, 1983, 1985, 
1986 and 1988 (1981) to recover damages for 
wrongful death caused by claimed violations 
of the Fourth, Eighth, and Fourteenth 
Amendments to the Constitution. Reversing 
the District Court for the Western District 
of Tennessee, the Court of Appeals for the 
Sixth Circuit held that the Tennessee 
statute, TENN. CODE ANN. § 40-808 (1975),

13



permitting police officers to "use all the 
necessary means to effect the arrest" of 
fleeing non-violent felony suspects, 
violated the Fourth Amendment and the due 
process clause of the Fourteenth 
Amendment. Garner v. Memphis Police 
Department, 710 F.2d 240, 241 (6th Cir. 
1983). On March 19, 1984, this Court noted 
probable jurisdiction of the appeal by the 
intervening State of Tennessee in number 
83-1035 and granted the petition for 
certiorari of the Memphis Police Department 
and City in number 83-1070.

ARGUMENT
Appellant argues that the Court of 

Appeals judgment should be reversed because 
"the State retains compelling interests in 
the apprehension of criminals which can 
only be served through the truly effective 
power of arrest." Brief for Appellant at 7 
(emphasis added). Petitioners similarly 
argue that "the Court of Appeals either

14



ignored or gave insufficient deference to 
the compelling state interests herein -- 
effective law enforcement and the 
apprehension of fleeing criminals. The 
rule adopted favors the criminal and 
encourages flight to avoid capture." Brief 
for Petitioners at 8. Amici believe that 
the available evidence indicates that the 
public's interest in effective law 
enforcement is furthered by the decision of 
the Court of Appeals.

I. LAWS THAT AUTHORIZE THE POLICE TO
EMPLOY DEADLY FORCE TO APPREHEND ALL 
FLEEING FELONY SUSPECTS DO NOT 
CONTRIBUTE TO THE ABILITY OF THE 
POLICE TO FIGHT CRIME OR TO PROTECT 
THEMSELVES

Through long personal and 
professional experience, amici know well 
the terrible costs of crime to American 
society and the dangers it presents to 
law-abiding citizens and to police
officers. Amici share the frustration of

15



all law-abiding citizens with our high 
rates of crime and, as police 
professionals and students of police 
operations, amici would not argue that 
this Court should take any action that 
would unreasonably diminish the ability 
of the police to prevent or detect crime, 
to apprehend criminals, or to protect the 
public or themselves. Affirming the 
decision of the Sixth Circuit in this 
case, however, as amici urge, will result 
in no diminution of police effectiveness.

If expansive use of police deadly 
force had a measurable effect upon crime 
and public safety, one would expect to 
find some association between the breadth 
of police authority to use deadly force 
and measures of crime and public and 
police safety. One would expect that 
rates of crime and violence would be 
lowest in jurisdictions in which police 
authority to use deadly force was most

16



broad, and one would expect that 
jurisdictions that more clearly defined 
and limited police officers' authority to 
use deadly force would experience 
increased crime rates and decreases in 
the safety of the public and the police.

All the available evidence 
indicates that expansive use of police 
deadly force to apprehend fleeing suspects 
is in no way associated with reduced rates 
of crime or with increased safety of the 
public or the police. For example, in 
1968, the Oakland, California, Police 
Department established an administrative 
policy prohibiting use of deadly force to 
apprehend fleeing auto theft and burglary 
suspects. In a 1971 evaluation of the 
effects of that policy, then Police Chief 
Charles Gain reported that:

There is absolutely no 
evidence supporting the 
proposition that 
restrictive [deadly force] 
policies adversely affect 17



the arrest rate for 
burglary and auto theft. 
Our own experience in 
Oakland indicates that the 
institution of a policy 
restricting the use of 
deadly force against 
burglars had no effect, 
one way or the other, upon 
the arrest rate for 
burglary. . . . There is 
no evidence whatever to 
support the contention 
that police authority to 
shoot is a deterrent to 
the commission of the 
crime. . . .  It cannot be 
demonstrated that police 
firearms policies have had 
any effect, one way or the 
other, on the increase in 
the incidence of crime.

"[N]ot a single 
[police] officer has been 
injured, killed or placed 
in jeopardy because of the 
restrictions upon his 
authority to fire."
C. Gain, Discharge of 
Firearms Policy:
Effecting Justice Through 
Administrative Regulation 
-- A Position Paper at 18 
& 25 (Report released 
December 23, 1971 by Oakland Police Chief 
Charles Gain in explanation of a change in 
departmental deadly force 

18



policy), cited in W. A.
Geller & K. J. Karales, 
Split-Second Decisions:
Shootings Of & By Chicago 
Police at 67-68 (1981)
A 1979 study of the effects of a

New York City Police Department 
regulation that restricted officers' 
authority to employ deadly force against 
fleeing suspects reached similar 
findings. It analyzed 2,926 police 
shooting incidents. It reported that 
implementation of the Police Department 
regulation was followed by a 75 percent 
decrease (from 2.0 per week to 0.5 per 
week) in incidents in which officers 
fired shots at fleeing suspects who 
presented no imminent threat to life.
The number of people shot and non-fatally 
wounded by the police decreased by 41 
percent (from 3.9 to 2.3 weekly), and the 
number of fatal shootings declined by 38 
percent (from 1.6 to 1.0 weekly). These 
declines, however, had no adverse effect

19



on rates of crime or arrest rates.
Police injuries and deaths decreased 
following the directive. J. Fyfe, 
Administrative Interventions on Police 
Shooting Discretion: An Empirical
Examination ̂ 7 J. Crim. Just. 309 (1979).

A study published just last year 
of police use of deadly force in Atlanta 
similarly reported that restriction of 
police shooting discretion in that city 
was accompanied by a decrease in police 
use of deadly force and that there was no 
effect upon violent crime rates, arrest 
rates, or police injury and death rates.
L. Sherman, Reducing Police Gun Use, in
M. Punch, Control in the Police 
Organization 98 (1983).

Amici are aware of no empirical 
evidence, reports or studies that 
establish a public benefit flowing from 
broad use of police deadly force.

20



Broad police deadly force 
statutes actually work against the 
primary police responsibility to protect 
life and enforce the law. Whenever 
police officers kill citizens, tensions 
between police and the communities they 
serve are likely to increase, especially 
when police take the lives of persons who 
present no clear and present danger to 
officers or others. Consequently, it 
becomes more difficult for the police to 
obtain public cooperation in their daily 
efforts to protect life and to fight 
crime. Police inability to obtain 
cooperation and information ultimately 
results in failure to identify violent 
offenders and in further loss of life. 
President's Commission on Law Enforcement 
and the Administration of Justice, Task 
Force Report: The Police 144 (1967).

On occasion, public reaction to 
instances of police use of deadly force

2 1



has included violence and further loss of 
life. The National Advisory Commission 
on Civil Disorders reported that police 
shootings were followed by riots in New 
York City in 1964; that the fatal police 
shooting of a young black led to violent 
demonstrations in Los Angeles in 1966; 
that, in 1966, a fatal police shooting of 
an auto thief in Atlanta nearly 
precipitated a riot; and that 1967 riots 
in Tampa were triggered by the fatal 
police shooting of a young black fleeing 
from a burglary. Report of the National 
Advisory Commission on Civil Disorders at 
36, 38 & 42 (1968). In addition, in 
1966, disturbances followed the fatal 
police shooting of a fleeing car thief in 
San Francisco, and a fatal shooting in 
St. Louis. President's Commission on Law 
Enforcement and the Administration of 
Justice, Task Force Report: The Police
189 (1967). More recently, fatal

2 2



shootings by police in New York City, 
Birmingham, New Orleans, and Miami have 
led to public disorder and violence.

The primary police
responsibility of protecting life and 
enforcing law is best served by reducing 
use of deadly force to an absolute 
minimum by providing meaningful 
guidelines for officer discretion.
Indeed, the police as well as the public 
will benefit from standards that are more 
carefully tailored than tne Tennessee 
statute's. Under any circumstances, the 
taking of a life produces trauma for the 
police officer. A. Cohen, I've Killed 
That Man 10,000 Times, 3 Police 17 
(1980). When such a killing occurs under 
circumstances that are legally 
justifiable but that subsequently raise 
questions of judiciousness, fairness, and 
propriety, that trauma is bound to be 
increased. Laws that authorize police to

23



use deadly force to apprehend all fleeing 
felony suspects but provide no other 
guidance, encourage such killings and 
expose police officers to unnecessary 
criticism, trauma, and civil liability.

In a real sense, the officer who 
shot Edward Eugene Garner has been 
severely victimized by the statute in 
question on which he based his decision 
to shoot. Over the nearly ten years 
since Garner's death, this officer has 
been publicly criticized and second- 
guessed. The criticism, trauma, and 
liability that have affected the life of 
this officer are far more attributable to 
the inadequacy of the laws and rules 
under which he acted than they are to his 
own actions.

The Delaware Police Chiefs' 
Council eloquently stated the forces that 
work upon police officers who find 
themselves in situations like that

24



leading to the death of Edward Eugene 
Garner:

The decision to 
employ deadly force 
against another human 
being is in all 
probability the most 
serious and difficult 
decision a law enforcement 
officer will be faced 
with. The primary 
responsibility of the 
police is that of 
protecting life. This 
responsibility dictates 
the need for consideration 
of not only the legal 
aspect of the use of 
deadly force, but also the 
moral issues arising from 
a reverence for the value 
of life. It is, 
therefore, in the interest 
of both the public and the 
law enforcement officer 
that uniformly accepted 
guidelines clearly govern 
the use of firearms in the 
enforcement of the law.
J. Klenoski,
Administrative Policy 
Statements: Deadly Force1 (May 21, 1981).
Laws authorizing police to

employ deadly force to apprehend all
fleeing felony suspects include no such

25



clear guidelines. Indeed, they place 
officers who serve under those statutes 
in the terrible position of having to 
live forever with the consequences of the 
instantaneous decision, made without real 
legislative guidance as to whether and 
when it is appropriate to take the life 
of a non-violent fleeing felony suspect. 
Thus, laws that authorize police officers 
to employ deadly force to apprehend all 
fleeing felony suspects are likely to 
lead to arbitrariness in the taking of 
life by police officers. This increases 
the exposure of officers to censure, 
trauma, and civil liability. Conversely, 
because such laws so inadequately define 
appropriate police behavior, officers who 
refrain from using deadly force will 
always be uncertain that they have acted 
correctly. In either case the long-term 
effects of such laws upon both sets of 
police officers is bad for their

26



understanding of and respect for the law 
and their duties and for their general 
effectiveness and morale.

II. AFFIRMANCE WILL BE CONSISTENT
WITH MOST POLICE DEPARTMENT
POLICIES AND PRACTICES AND WILL
NOT UNDQLY INTRUDE ON CRIMINAL
LAW ENFORCEMENT

The State of Tennessee and the 
City of Memphis and its Police Department 
have argued that the rule adopted by the 
Court of Appeals "places burdensome and 
impractical constraints on effective law 
enforcement," Jurisdictional Statement at 
7, and that it "will create much 
confusion among law enforcement 
officers...." Petition for Cert, at 11. 
That is simply not so. The Court of 
Appeals has adopted a standard that is 
clear, workable, and not unduly

27



restrictive of law enforcement. Before 
an officer uses deadly force to stop a 
fleeing felony suspect, he or she must 
have "an objective, reasonable basis in 
fact to believe that the felon is 
dangerous or has committed a violent 
crime." 710 F.2d at 241.

In fact, the actual practices of 
most law enforcement agencies demonstrate 
the practicability of the standard 
adopted by the Court of Appeals. Most 
jurisdictions studied already restrain 
the use of deadly force by police 
officers in a manner that is as 
restrictive or more restrictive than that 
adopted by the court below. The common 
sense of law enforcement professionals 
across the nation is that these 
restrictive standards are workable and do

28



not hamper law enforcement.*
There has been a steady move to

The actual practices of most police 
departments are in fact governed by 
municipal or departmental policies 
more restrictive than state laws. 
See K. Matulia, A Balance of Forces: 
A Report of the International 
Association of Chiefs of Police at
153-54 (1982). 
is a common law 
Werner v. Hartfelder,

For example, Michigan 
jurisdiction. See 

Mich.113 Mich. App. 
747, 318 N.W.2d 825 (1982), appeal 
denied, 418 Mich. 906, 342 N.W.2d 520 
(1984). But more than half of the 
local law enforcement agencies have 
deadly force policies that are more 
restrictive than the common law and 
about 75 percent of those are 
consonant with the standard adopted 
by the court of appeals in this 
case. Staff Report to the Michigan 
Civil Rights Commission at 54 ^  seg. 
(May 18, 1981). This trend is 
particularly true of major 
metropolitan areas. Although 
Arizona, Connecticut, Massachusetts, 
New Mexico, and Ohio are common law 
states, Phoenix, New Haven, Boston, 
Alburquerque, Santa Fe, Cincinnati, 
and Dayton all have deadly force policies that would bar the shooting 
in this case. App. 1318, 1291, 1131, 
1110, 1330, 1209 & 1218. (App. 
citations are to the docketed Court 
of Appeals record. Jt. App. citations are to the Joint Appendix 
prepared by the parties for the 
Court.)

29



restrain the police use of deadly force. 
More than twenty years ago the Model 
Penal Code proposed to restrict police 
authority to employ deadly force against 
all fleeing felony suspects. Model Penal 
Code § 3.07(2) (b) (Proposed Official 
Draft 1962).

In 1967, the President's
Commission on Law Enforcement and
Administration of Justice observed:

Deadly force should be 
restricted to the 
apprehension of 
perpetrators who, in the 
course of their crime 
threatened the use of 
deadly force, or if the 
officer believes there is 
a substantial risk that 
the person whose arrest is 
sought will cause death or 
serious bodily harm if his apprehension is delayed.
President's Commission on
Law Enforcement and the
Administration of Justice,
Task Force Report: The
Police at 189 (1967).
In 1983, the federally funded 

Commission on Accreditation for Law
30



Enforcement Agencies, which is composed, 
of judicial, legislative, state and local 
government, academic, and law enforcement 
representatives, adopted the following 
model policy and commentary on use of 
deadly force:

1.3.2 A written directive
states that an officer may 
use deadly force only when 
the officer reasonably 
believes that the action 
is in defense of human 
life, including the 
officer's own life, or in 
defense of any person in 
immediate danger of 
serious physical injury. 
Commentary: The purpose
of this standard is to 
provide officers with 
guidance in the use of 
force in life and death 
situations and to prevent 
unnecessary loss of life. 
Definitions of "reasonable 
belief," and "serious physical injury" should be 
included in the directive.
1.3.3 A written directive specifies that use of 
deadly force against a "fleeing felon" must meet 
the conditions required by 
standard 1.3.2.
Commentary: A "fleeing
felon" should not be 
presumed to pose an

31



immediate threat to life 
in the absence of actions 
that would lead one to 
believe otherwise, such as 
a previously demonstrated 
threat to or wanton 
disregard for human life.
Program Commission on 
Accreditation for Law 
Enforcement Agencies,
Inc., Standards For Law 
Enforcement Agencies: The
Standards Manual of the 
Law Enforcement Agency 
Accreditation at 1-12 
(Aug. 1983) (emphasis in 
original).

These standards were drafted and 
unanimously recommended to the Commission 
by the International Association of 
Chiefs of Police ("IACP")f NOBLE, the 
National Sheriffs' Association and PERF.

In a United States Department of 
Justice-supported study of police deadly 
force in 53 American cities with 
populations over 250,000, the 
International Association of Chiefs of 
Police reported that, as of 1980, 46
police departments (86.8 percent) had

32



promulgated administrative rules that
prohibited officers from employing deadly
force to "arrest any felon," that four
(7.5 percent) permitted such deadly
force, and that the administrative
policies of three (5.7 percent) did not
address this issue.

Thus, nearly seven in eight of
the major municipal police departments in
the United States did not permit officers
to use deadly force to apprehend all
felons. K. Matulia, A Balance of Forces:
A Report of the International Association
of Chiefs of Police at 161 (1982). On
the basis of its analysis, lACP
recommended the following guideline on
use of deadly force to effect
apprehensions:

An officer may use deadly 
force to effect the 
capture or prevent the escape of a suspect whose 
freedom is reasonably 
believed to represent an 
imminent threat of grave 

33



bodily harm or death to 
the officer or other 
person(s).
Id. at 164 (emphasis in 

original).
A 1982 survey of the deadly

force policies of 75 police departments
whose chief executives were members of
PERF by that organization's staff found
that 74 prohibited use of deadly force to
apprehend all fleeing felony suspects.

These statements and the lACP
and PERF findings regarding the small
number of police agencies adhering to the
rule that deadly force is permissible to
apprehend all fleeing felony suspects
demonstrate that the law enforcement
community generally considers this
standard reprehensible. Indeed, since
the death of Edward Eugene Garner, the
Memphis Police Department itself has
adopted an administrative policy
prohibiting its officers from using

34



deadly force in situations such as the , 
instant. Memphis Police Department, 
Training Academy, General Order Number 
95-79, Deadly Force Policy (July 16, 
1979), Jt. App. at 45, cited in J. Fyfe, 
Blind Justice: Police Shootings in
Memphis, 73 J. of Grim. L. & Grim. 722
(1982).

Very few police departments
actually use deadly force to stop fleeing 
suspects. Only a small minority of 
police firearm discharges nationwide are 
for the purpose of stopping fleeing 
felony suspects.* This use of deadly

The figures vary, of course, from 
city to city depending on that city's 
policy. See App. 791 (11.3% in New 
York between 1971-1975); W.A. Geller, 
K.J. Karales, Split-Second 
Decisions; Shootings of & by Ghicago 
Police, 6 (Ghicago Law Enforcement 
Study Group 1981) (17% between1974-1978); M. Meyer, Police 
Shootings at Minorities: The Gase of
Los Angeles, 52 Annals 98, 103-104

Footnote Gontinued
35



force is insignificant to the ability of 
the police to make felony arrests. For 
example, between 1969 and 1974, Memphis 
police made more than twenty-six thousand 
arrests for property crimes. App. 1767. 
As the Memphis police director observed: 
"of all arrests how many involve the use 
of deadly force, I would say it would be 
less than one percent, probably less than 
a half percent.... [I]f you want to even 
boil it down to arrests of felons I think

Footnote Continued From Previous Page
(1980) (between 1974-1978, 15% of all 
shootings at black, 9% of all 
shootings at Hispanics, and 9% of all 
shootings at whites); M. Blumberg,The Use of Deadly Firearms by Police 
Officers: The Impact of Individuals,
Communities, and Race, 201 (Ph.D. 
Dissertation, State University of New 
York, Albany, Sch. of Crim. Justice, Dec. 14, 1982) (7.8% in Atlanta
between 1975-1978; between 1973-1974, 
4.6% in the District of Columbia, 10% 
in Portland, Ore., but 58.1% in 
Indianapolis).

36



you'd still find it less than -- well, 
let's say you'd find it a minute 
percentage point." App. 957-58. Dr.
Fyfe has observed: "[I]n order for the
police to have cleared even 1 percent 
[more] of the non-violent felonies 
[burglary, larceny, and auto larceny] 
reported in 1978 through 'apprehensions 
effected by shooting,' they would have 
had to increase the rate at which they 
shot people during that year by at least 
fifty-fold. Doing so would have resulted 
in approximately 35,000 fatalities and 
70,000 woundings." J. Fyfe, Observations 
on Police Deadly Force, 27 Grim. &

Deling. 376, 381 (1981).
In applying constitutional 

dictates this Court has made many 
decisions which have had a substantial 
impact on police policies and procedures 
and have arguably limited the 
effectiveness of police operations.

3 7



E.q,, Payton v. New York  ̂ 445 U.S. 573 
(1980) (restricting police authority to 
enter residence to make arrest without 
arrest warrant); Delaware v. Prouse, 440 
U.S. 648 (1979) (restricting police 
authority randomly to stop motorist); 
Chimel v. California, 395 U.S. 752 (1969) 
(denying police authority to search 
beyond suspect's body pursuant to 
arrest); Sibron v. New York/ 392 U.S. 40 
(1968) (narrowing police authority to 
search a suspect); Katz v. United States, 
389 U.S. 347 (1967) (limiting police 
authority to eavesdrop); Wong Sun v. 
United States, 371 U.S. 471 (1963)
(confining police authority to arrest 
without a warrant); Mapp v. Ohio, 367 
U.S. 643 (1961) (restricting use of 
unreasonably seized evidence); Rochin v 
California, 342 U.S. 165 (1952) (police 
authority to use stomach pump on 
suspect). Most recently, this Court

38



struck as unconstitutionally vague a 
California statute that authorized police 
to arrest pedestrians who failed to 
provide to a police officer credible and 
reliable identification and to account 
for their presence. Kolender v. Lawson  ̂
103 S. Ct. 1855 (1983).

In all of these cases, the Court 
has delineated the limits of police 
authority under the Constitution and has 
directed police not to employ former 
practices that had been in widespread and 
effective use. Police use of deadly 
force to apprehend fleeing suspects is 
not common. Accordingly, affirmance of 
the decision below, which protects the 
due process right to life, will not 
substantially intrude on current police 
policies and procedures. Police 
discretion to use deadly force to 
apprehend a fleeing felon endangers a 
more fundamental right -- the right to

39



life -- than any of the police techniques 
that this Court has found prohibited by 
the Constitution.
III. LAWS THAT AUTHORIZE POLICE USE OF 

DEADLY FORCE TO APPREHEND ALL 
FLEEING FELONY SUSPECTS FAIL 
ADEQUATELY TO GUIDE POLICE OFFICER 
DISCRETION

The adoption of restrictive 
administrative policies governing deadly 
force in states with laws otherwise 
authorizing police use of deadly force to 
apprehend all fleeing felony suspects is 
largely dependent upon the individual 
predilections and philosophies of police 
chiefs. G. Uelman, Varieties of Police 
Policy: A Study of Police Policy
Regarding the Use of Deadly Force in Los 
Angeles County/ 6 Loy. L.A. L. Rev. 1 
(1973), cited in U.S. Department of 
Justice, A Community Concern: Police Use
of Deadly Force at 88-89 (1979) . Where 
there are no administrative guidelines, 
shooting is left to the discretion of the

40



individual police officer. The question 
of when police officers are permitted to 
take a life should no more be a matter of 
unlimited administrative prerogative or 
unguided officer discretion than should 
the imposition of capital punishment be 
totally at the discretion of local 
juries. In Furman v. Georgia  ̂ 408 U.S. 
238 (1972) , this Court ruled that the 
death penalty may not be imposed even 
after conviction for murder unless the 
legislature has given the sentencing 
authority guidance adequate to eliminate 
arbitrariness and capriciousness. The 
Tennessee statute at issue in this case 
gives police officers on the street 
unbridled discretion whether to shoot to 
kill any time a fleeing suspect may have 
committed some felony. This unguided 
discretion is far less tolerable in a 
well-ordered system of criminal justice.

41



There can be little doubt that 
statutes like the one involved in this 
case lead to arbitrary exercises of 
deadly force. One scholar has conducted 
an experiment in which he presented 
hypothetical fact patterns concerning 
three arrest situations to 25 randomly 
selected police officers in Connecticut, 
a state in which the common law allows 
police to use deadly force to apprehend 
all fleeing felony suspects. Although 
all 25 officers were making decisions on 
the basis of the same state law, they 
split almost evenly when asked if they 
would be likely to use deadly force in 
identical situations. G. Hayden, Police 
Discretion in the Use of Deadly Force:
An Empirical Study of Information Usage 
in Deadly Force Decision Making (1979) 
(unpublished paper available at the 
University of New Haven), cited in L. 
Sherman, Execution Without Trial; Police

42



Homicide and the Constitution  ̂ 33 Vand 
L. Rev. at 95 n.l50 (1980).

Another scholar found a
correlation between use of deadly force 
and personal characteristics of the 
officer based on analysis of the results 
of a questionnaire administered to 151 
patrol officers from two unnamed 
municipal police departments in the 
central south and the midwest. The 
officers were asked to identify eight 
personal characteristics* and judge the 
appropriateness of using deadly force in 
twelve hypothetical police situations. A 
high degree of agreement among these 
officers was found in eleven of these 
situations. Of the twelfth hypothetical,

Officer's age; assignment, sex; race; 
length of police service; if officer 
had been victim of a felonious 
assult; military experience.

43



a "classic fleeing felon situation [in 
which] an officer sees and shoots a 
burglar fleeing the scene of his crime," 
however, the officers’ assessments of the 
appropriateness of using deadly force 
varied significantly with seven of the 
eight personal characteristics analyzed. 
Officers with high educational levels 
were significantly less likely than less 
well educated officers to regard shooting 
in the fleeing felon hypothetical as 
appropriate. The study also found that:

Older officers were 
less likely to agree with 
the use of a firearm to 
apprehend a fleeing 
burglar suspect than 
respondents in other age 
groups. Younger officers 
may be in the "badge is heavy" phase of their
careers as police officers. They are most
likely to be cynical, alienated, and definite in 
their opinions. They may 
also be the group of 
police officers most 
likely to shoot someone.

44



Brown, Use of Deadly Force by Police 
Officers: Training Implications, 12 J.
Pol. Sci. & Admin. 133, at 139 (1984).

Appellant and Petitioners argue 
that the decision below invades the 
province of the state legislature. The 
real issue, however, is whether the 
policy manifested by the Tennessee 
statute is one the Constitution permits a 
legislature to adopt. This Court should 
conclude that the Constitution requires 
states to impose rationally and factually 
based limits on police discretion to kill 
prior to indictment or conviction, just 
as it has held that legislatures may not 
delegate unrestrained discretion to 
impose capital punishment after 
conviction.

Even though there are 
distinctions between capital punishment 
and police use of deadly force, the 
distinctions do not justify the breadth

45



of discretion allowed here. Unlike 
capital punishment, police use of deadly 
force does not always kill, because 
officers sometimes miss or only wound 
their targets. But police deadly force 
is almost always employed before 
adjudication, without careful procedures 
to ascertain actual guilt. The greater 
risk of error and of irreparable injury 
warrants tighter control over potentially 
lethal public authority.

No state capital punishment 
statute allows for as much arbitrariness 
as do statutes authorizing police deadly 
force to apprehend any fleeing felony 
suspect. A decision to execute 
invariably followed a substantial trial 
and is subject to extensive review by 
appellate courts and by the state 
executive before it results in death. 
There is no such check on the wisdom of a 
police officer's decision to use deadly

46



force to apprenend a fleeing felony 
suspect. As in this case, tne decision 
to employ deadly force is typically made 
in a dark alley or rear yard. It is 
almost always quick, unilateral, and 
irreversible. Thus, the Constitution 
Should constrain the permissible scope of 
official discretion where the legislature 
authorizes police use of extra-judicial 
deadly force. The Tennessee statute does 
not satisfy this test.

CONCLUSION
Thirteen years ago Chief Justice

Burger wrote:
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

47



relate to tne gravity and 
need; tnat a "snoot" 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 
Federal Narcotics Agents,
403 U.S. 388, 419 (1971) 
(dissenting opinion).
Amici agree wholeneartedly with

tne Chief Justice. The Tennessee statute
in question is, in fact, an authorization
to shoot to kill car thieves,
pickpockets, and shoplifters, and it
cannot be 3 ustified as a legitimate
exercise of public authority. We urge
affirmance of the 3 uagment of the Court
of Appeals.

Respectfully submitted,
i hi) 111 *3̂ 5'̂  P^ ̂

william Josephson, Esq. 
Counsel of Record 
Fried, Frank, Harris, Shriver 

& Jacobson
(A partnership which includes 
professional corporations) 

One New York Plaza 
New York, New York 10004 
(212) 820-8220 
Attorneys tor Amici Curiae

August 6, 1984









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