Brief of the Appellant

    UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

■- V  J .

m

CASE NO. 92-6196

..1/' ,iiij>r̂  Vf
CLEAMTEE GARNER, 

Father and Next of Kin of 
EDWARD EUGENE GARNER, 

a deceased minor
Plaintiff-Appellant 

V.
( y O / ^ ^

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

BRIEF OF THE APPELLANT

Counsel for Appellant: Counsel for Appellees:
Walter Lee Bailey, Jr.
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(614) -224— 7290-

1-7

Henry L. Klein 
Apperson, Crump 
45 Second Street 
Ste. 2110, One Commerce Sq. 
Memphis, TN 38103

•j-H



CASE NO. 92-6196

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, 
Father and Next of Kin of 

EDWARD EUGENE GARNER, 
a deceased minor

Plaintiff-Appellant
V.

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

BRIEF OF THE APPELLANT

Counsel for Appellant:
Walter Lee Bailey, Jr.
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(614) 224-7298

Counsel for Appellees:
Henry L. Klein 
Apperson, Crump 
45 Second Street 
Ste. 2110, One Commerce Sq, 
Memphis, TN 38103



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, Father and 
next-of-kin of EDWARD EUGENE 
GARNER, a deceased minor

Plaintiff - Appellant
VS. No. 92-6196
MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE

Defendants - Appellees
WYETH CHANDLER, Mayor of Memphis; 
JAY HUBBARD, Director of Memphis 
Police; E. R. HYMON, Police Officer 
of the City of Memphis

Defendants

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

Pursuant to Sixth Circuit Rule 25, Cleamtee Garner, Father and 
Next-of-kin to Edward Eugene Garner, a deceased minor, 
plaintiff/appellant herein, makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly-owned 
corporation? No
If the answer is YES, list below the identity of the parent 
corporation or affiliate and the relationship between it and 
the named party: Not applicable



6

Is there a publicly-owned corporation, not a party to the 
appeal, that has a financial interest in the outcome? No
If the answer is YES, list the identity of such corporation and 
the nature of the financial interest: Not applicable

Signatu ilsel for Appellant Datfe



Table of Authorities........................................... ii

Statement of Subject Matter
and Appellate Jurisdiction.................................1-2

Statement of Issues Presented
For Review................................................... 3

Statement in Support of
Oral Argument............................................... 3

Statement of the Case........................................4-10

Argument 1..................................................... 10

Argument I I ................................................... 20

Argument I I I .................................................. 37
Certificate of Service ......................................  44
Addendum...................................................... 45

TABLE OF CONTENTS



CASE PAGE
1. American Trucking Assns., Inc. v. Scheiner,

483 U.S. 266 (1987)..................................... 15

2. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986)..................................... 24

3. Bacchus Imports, Ltd. v. Dias,
468 U.S. 263 (1984)................................ 15, 16

4. Barber v. City of Salem, Ohio,
953 F.2d 232 (6th Cir. 1992)........................... 14

5. Bennett v. City of Slidell,
728 F.2d 762 (5th Cir. 1984)........................... 25

6. Carter v. City of Chattanooga, Tenn.,
850 F.2d 1119 (6th Cir. 1988)............3, 11, 12, 13, 14,

16, 17, 18, 19, 22, 32 
37, 39, 42

7. Celotex Corp. v. Catrett,
477 U.S. 317 (1986)................................ 23, 24

8. Chevron Oil Co. v. Huson,
404 U.S. 97 (1971)............................  3, 13, 20

21, 22, 38, 42

9. Coal Resources, Inc. v. Gulf & ffestern Industries,
865 F.2d 761 (6th Cir. 1989).......................... 18

10. Coogan v. City of Wixom,
820 F.2d 170 (6th Cir. 1987)................  25, 26, 36

11. Davis V. City of Camden,
657 F.Supp. 396 (D.N.J. 1987)............  28, 29, 30, 32

ii

TABLE OF AUTHORITIES



12. Evers v. County of Custer,
745 F.2d 1196 (9th Cir. 1984) 30

13. Familias Unidas v. Briscoe,
619 F.2d 391 (5th Cir. 1980) 31

14. Garner v. Memphis Police Department, City of Memphis, 
Tennessee, et al.,
600 F.2d 52 (6th Cir. 1979)................. 4, 5, 8, 36

15. Garner v. Memphis Police Dept., et al, 
710 F.2d 240 (6th Cir. 1983) . . . 3, 5, 8, 9, 11, 13 

14, 16, 17, 22, 36

16. Gurish V. McFaul,
801 F.2d 225 (6th Cir. 1986) 17

17. Gregg v. Allen-Bradley Co.,
801 F.2d 859 (6th Cir. 1986) 23

18. In re Hronek,
563 F.2d 296 (6th Cir. 1977) 38

19. In re Sanford Fork & Tool Co., 
160 U.S. 247 (1895) . . . . . 19

20. Ira Lee Madison, et al v.
Memphis Police Department, et al.,
No. C/A C-73-21 (W.D. Tenn. Dec. 19, 1979) 32

21. James B. Beam Distilling Co. v. Georgia,
____ U.S. ____, 111 S.Ct. 2439 (1991). . . 4, 13, 15, 16

17, 21, 23, 38, 42
22. Jonathan's Landing, Inc. v. Townsend, 

960 F.2d 1538 (11th Cir. 1992). . 40

23. Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 
761 F.2d 649 (Fed. Cir. 1985).................. 18

1 1 1



24. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson^
____ U.S. ____, 111 S.Ct. 2773 (1991)............  16, 22

25. Marsh V. Arn,
937 F.2d 1056 (6th Cir. 1991)........................ 14

26. Monell v. New York City Department
of Social Services,
436 U.S. 658 (1978)...................... 4, 7, 8, 9, 15

18, 20, 23, 24 
25, 29, 32, 36 

38, 39, 41

27. Morgan Guaranty Trust Co. v. Martin,
466 F.2d 593 (7th Cir. 1972).......................... 40

28. NAACP, Detroit Branch v. Police Officers Ass'n,
676 F.Supp. 790 (E.D. Mich. 1988)....................  19

29. Nazay v. Miller, et al,
949 F.2d 1323 (3rd Cir. 1991)................  38, 40, 41

30. Oklahoma City v. Tuttle,
471 U.S. 808 (1985)............................ 26, 27

31. Otto V. Variable Annuity Life Ins. Co.,
814 F.2d 1127 (7th Cir. 1986)........................  38

32. Owen v. City of Independence,
445 U.S. 6220 (1980)....................  16, 17, 30, 31

32

33. Patterson v. McLean Credit Union,
491 U.S. 164 (1989)..................................  16

34. Pembaur v. City of Cincinnati,
475 U.S. 469 (1986)........................ 25, 26, 27, 35

35. Petition of United States Steel Corporation,
479 F.2d 489 (6th Cir. 1973)......................  18, 19

iv



36. Ratliff V. Wellington Exempted Village School Board of
Education,
820 F.2d 792 (6th Cir. 1987)..........................  17

37. Rodriguez de Quijas v, Shearson/American Express, Inc.,
____ U.S. ____, 109 S.Ct. 1917 (1989)............  15, 20

38. Smith V. General Motors Corp.,
747 F.2d 372 (6th Cir. 1984) ..................  16, 17

39. Sterling v. Block,
953 F.2d 198 (5th Cir. 1992)........................... 15

40. Tennessee v. Garner,
471 U.S. 1 (1985)..........................  3, 9, 11, 12

13, 14, 15, 16
17, 18, 19, 20
22, 35, 36, 39

41. Weber v. Dell,
804 F.2d 796 (2nd Cir. 1986)........................... 40

STATUTES PAGE
1. T.C.A. Section 40-7-108 (1982).......................  28

2. T.C.A. Section 40-808................................  6, 28

3. 28 U.S.C. 1331........................................ 1, 6

4. 28 U.S.C. Section 1343 (3).............................. 1, 6

5. 28 U.S.C. Section 2106..............................  39, 40

6. 42 U.S.C. Section 1981..................................... 5

7. 42 U.S.C. Section 1983................................ 5, 24
V



8. 42 U.S.C. Section 1985.....................................5

9. 42 U.S.C. Section 1986.....................................5

10. 42 U.S.C. Section 1988.....................................5

PROCEDURAL RULES PAGE
1. Federal Rules of Appellate Procedure 4(a)...................2

2. Federal Rule of Civil Procedure 56(c)...................... 23

OTHER AUTHORITIES PAGE
1. IB J. Moore, J. Lucas & T. Currier,

Moore's Federal Practice para. 0.0404 (10)............  19

2. Schnapper, Civil Rights Litigation After Monell,
79 Colum.L.R. 213 (1979)...............................30

V I





SUBJECT MATTER AND APPELLATE JURISDICTION

Subject matter jurisdiction of this dispute is based upon 28 
U.S.C. Sections 1331 and 1343(3) and their predecessor statutes. 
The complaint claimed damages as a result of the death of Edward 
Eugene Garner who was shot and killed by a police officer in 1974 
while he appeared to be fleeing from a nonviolent felony offense. 
The complaint further alleged that the killing of the deceased 
denied him his right to due process in violation of the Eighth 
and Fourteenth Amendments and his right to be free from 
unreasonable seizure of his body as guaranteed by the Fourth and 
Fourteenth Amendments. Accordingly, the plaintiff alleged 
sufficient facts to state a claim arising under the Constitution 
of the United States pursuant to 28 U.S.C. Section 1331. 
Additionally, Section 1343(3) provides for federal jurisdiction 
over any civil suit alleging deprivations of any right or 
privilege of being a citizen of the United States.

28 U.S.C. Section 1291 grants jurisdiction in this court to 
hear appeals from all final decisions of the district courts of 
the United States. The final decision of the district court from 
which the instant appeal is taken was a grant of summary judgment 
on liability to the remaining defendants which specifically 
"dismissed the case." R. 91, Judgment Granting Summary Judgment 
to Defendants, p. 1.

The judgment dismissing the instant case based upon the 
grant of summary judgment was entered on the docket sheet in this 
cause on July 8, 1992. The initial Notice of Appeal naming the



Memphis Police Department, et al was filed on August 4, 1992. 
The second Notice of Appeal specifically naming the City of 
Memphis was filed on August 7, 1992, within thirty days of the 
day of docketing the judgment. Therefore, the notice of appeal 
in the instant case was timely under Federal Rule of Appellate 
Procedure 4(a).



STATEMENT IN SUPPORT OF ORAL ARGUMENT

The plaintiff would submit that oral argument is 
exceptionally necessary in the instant case. This case has 
previously been before this Honorable Court on two occasions, and 
oral argument was granted in both instances. Since that time the 
legal issues have only grown in complexity, and the need for oral 
argument has not diminished.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 

ARGUMENT I:

THE DISTRICT COURT ERRED IN GRANTING SUMMARY 
JUDGMENT TO THE DEFENDANTS MEMPHIS POLICE 
DEPARTMENT AND CITY OF MEMPHIS BASED UPON 
CARTER V. CITY OF CHATTANOOGA, TENN., 850 
F.2D 1119 (6TH CIR. 1988).
A. THE HOLDINGS OF GARNER V, MEMPHIS POLICE DEPT., 710 
F.2D 240 (6TH CIR. 1983) AND TENNESSEE V.
GARNER, 471 U.S. 1 (1985) APPLY TO CLEAMTEE 
GARNER, THE CITY OF MEMPHIS, AND MEMPHIS 
POLICE DEPARTMENT.
B. THE DISTRICT COURT ERRED IN RELYING UPON 
CARTER V. CITY OF CHATTANOOGA, 850 F.2D 1119 
(6TH CIR. 1988) SINCE THE "LAW OF THE CASE"
DOCTRINE PRECLUDES RELITIGATION OF BOTH THE 
MERITS AND THE RETROACTIVITY RULINGS ALREADY 
MADE IN THIS CASE.
C. THE SIXTH CIRCUIT AND DISTRICT COURT 
CANNOT USE CHEVRON OIL CO. V. HUSON, 404 U.S.
97 (1971) TO OVERRULE THE EFFECTIVE DECISION 
OF TENNESSEE V. GARNER, 471 U.S. 1 (1985)
ACCORDING TO THE LAW OF JAMES B. BEAM



DISTILLING 
S.CT. 2439

CO. V. 
(1991)

GEORGIA, U.S, 111

ARGUMENT II
THE DISTRICT COURT ERRED IN GRANTING SUMMARY 
JUDGMENT TO THE DEFENDANTS SINCE THE 
PLAINTIFF SUBMITTED UNCONTRADICTED EVIDENCE 
WHICH SATISFIED THE STANDARD OF MONELL V. NEW 
YORK CITY DEPT. OF SOCIAL SERVICES, 436 U.S. 
658 (1978) .
A. GENERAL ORDER 5-74 OF THE MEMPHIS POLICE 
DEPARTMENT REFLECTED THE "POLICY" OF THE 
DEPARTMENT UNDER THE MONELL STANDARD.

1. STATE LAW DID NOT DISPLACE THE CITY OF 
MEMPHIS' CHOICE AMONG VARIOUS ALTERNATIVES 
WHEN ADOPTING THE POLICY IN ISSUE.

2. THE UNDISPUTED FACTS OF RECORD 
ESTABLISH THAT THE CITY ADOPTED THE POLICY AT 
ISSUE FROM AN ARRAY OF ALTERNATIVES.
B. THE UNCONSTITUTIONAL POLICY OF THE CITY 
OF MEMPHIS CAUSED THE DEATH OF EDWARD EUGENE 
GARNER.

ARGUMENT III
THIS HONORABLE COURT SHOULD REVERSE THE GRANT 
OF SUMMARY JUDGMENT TO THE DEFENDANTS, ENTER 
JUDGMENT IN FAVOR OF THE PLAINTIFF ON 
LIABILITY, AND REMAND TO THE DISTRICT COURT 
FOR A DETERMINATION ON DAMAGES.

STATEMENT OF THE CASE
I. Factual basis of the suit

The facts giving rise to the instant litigation were
succinctly summarized by this Honorable Court in Garner v.
Memphis Police Department, City of Memphis, Tennessee et al., 600
F.2d 52 (6th Cir. 1979) [Garner J] as follows:

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. 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 I, 600 F.2d at 53. The youth died as a result of the 
shooting. Garner v. Memphis Police Department, et al., 710 F.2d 
240, 241 (6th Cir. 1983)[Garner JJ].
II. Procedural history

The complaint was filed on April 8, 1975 pursuant to the 
Civil Rights Act of 1964 at 42 U.S.C. Sections 1981, 1983, 1985, 
1986, and 1988 in the United States District Court for the 
Western District of Tennessee, Western Division. The plaintiff- 
appellant [plaintiff] seeks redress for the death of his son who 
was killed by a police officer's bullet in violation of his son's 
right to be free of unreasonable seizure of the body under the 
Fourth Amendment, his Fifth Amendment right to due process of 
law, his Sixth Amendment right to a jury trial, and his Eighth 
Amendment right to be spared cruel and unusual punishment. Named

5



as defendants were the Memphis Police Department; the City of 
Memphis, Tennessee; Mayor of Memphis Wyeth Chandler; Director of 
the Police of Memphis Jay W. Hubbard; and E. R. Hymon, police 
officer with the City of Memphis. Jurisdiction was invoked under 
28 U.S.C. Sections 1343(3) and 1331. The damages requested by 
the complaint exceeded the then $10,000 jurisdictional amount 
required by 28 U.S.C. Section 1331. R. 1, Complaint, p. 1-2.

On May 23, 1975 the defendants filed their motion to 
dismiss and memorandum brief in support. After the court denied 
the motion, R. 7, Order on Motion to Dismiss, the defendants 
filed their answer on September 18, 1975 generally denying the 
allegations of the complaint and relying upon then designated 
T.C.A. Section 40-808 as an affirmative defense to the suit.' R.
8, Answer.

Between August 2 and August 5, 1976 a trial was had to the 
bench. Thereafter, on September 29, 1976, the Court rendered its 
memorandum opinion. As to the individual Hymon, the Court 
concluded that he acted within his duties as a reasonable police 
officer without malice or racial animus and within the guidelines 
afforded him pursuant to policy." R. 53, Memorandum Opinion, 
September 29, 1976, pp. 11-12. The Court also held that the 
policies of the Memphis Police Department authorizing the use of

'Former T.C.A. Section 40-808 read:
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.



firearms to apprehend fleeing felons were with the parameters of 
T.C.A. Section 40-808, and that the training program of the city 
and department were at least adequate.^ R. 53, Memorandum 
Opinion, September 29, 1976, p. 12.

The plaintiff timely appealed, and this Honorable Court
heard arguments and issued its ruling which was reported as
Garner J, supra. The court affirmed the trial court's dismissal
of the individual defendant Hymon by finding that he was immune
from liability under the qualified or good faith immunity
doctrine. However, the Court reversed as to the City and Police
Department in light of the intervening Supreme Court decision in
Monell V. New York City Department of Social Services, 436 U.S.
658 (1978). The Sixth Circuit then for the first time remanded
for the district court's answer to the following questions
relevant to the instant appeal:

1. Does a municipality have a similar 
qualified immunity or privilege based on good 
faith under Monell?

* *  *

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?

Ât the trial of this case, there had been evidence submitted 
concerning the type of ammunition used by the Memphis Police 
Department. This issue was eventually dropped by the litigants. 
Additionally, the court found no liability on the parts of the 
individuals Hubbard and Chandler and dismissed the plaintiff's 
claims of deficient hiring procedures in its opinion rendered 
September 29, 1976. These issues are no longer before the Court.



Garner I, 600 F.2d at 54-55.
On remand, the trial court eventually rejected additional 

proof and ruled on the questions in an order dated February 29, 
1980. The district court held that Monell would make no 
difference to the outcome of the case because it only provided a 
jurisdictional vehicle and did not create an independent right or 
protection. Since the court had already considered the potential 
liability of the city and found no constitutional violation, the 
court reasoned there was no need to evaluate the Monell issues.
R. 72, Order, August 10, 1979, p. 8. Further, the trial court 
held that the city was entitled to assert a good faith immunity 
to liability. Id. Additionally, the trial court held that there 
was no constitutional violation in light of the Tennessee law on 
fleeing felons and the subsequent judicial interpretation of that 
statute. Id. at 11. Accordingly, judgment was entered for all 
the defendants. R. 73, Judgement, March 31, 1980.

Next, the district court entered an opinion on 
reconsideration. The court recognized that a city might not be 
entitled to assert qualified immunity. However, the court felt 
that it was a non-issue since there was no constitutional 
violation in the instant case as it had interpreted the law. R. 
79, Order, July 8, 1981, p. 7-8.

The plaintiff then filed his timely notice of appeal, and 
the Sixth Circuit eventually entered its second opinion in this 
case reported as Garner II, supra. There, this Honorable Court 
declared that under the Fourth Amendment guarantee to be free

8



from unreasonable seizure, the Tennessee statute was invalid 
because it did not define sufficient limits on the use of deadly 
force. Garner II, 710 F.2d at 246. Additionally, the court also 
decided that municipalities were not qualifiedly immune from 
Section 1983 liability as a matter of law. Id. at 248. 
Accordingly, the Court reversed the district court and remanded 
the case for the second time for further proceedings. Id. at 
249.

The City of Memphis filed its writ of certiorari to the 
United States Supreme Court which was granted at 465 U.S. 1098 
(1984). In 1985, the Supreme Court affirmed the Sixth Circuit's 
ruling pertaining to the fleeing felon rule and stated, "[T]he 
Tennessee statute is unconstitutional insofar as it authorizes 
the use of deadly force against such [unarmed, nondangerous] 
fleeing suspects." Tennessee v. Garner, 471 U.S. 1, 11 (1985). 
However, the Supreme Court cautioned that the statute was not 
unconstitutional on its face. Tennessee v. Garner, 471 U.S. at
II. The Court did not rule on the issue of qualified immunity, 
and it too remanded to the court below for further consideration 
under Monel1. Tennessee v. Garner, 471 U.S. at 23.
III. Facts giving rise to the instant appeal

On June 23, 1986 the plaintiff filed his motion for partial 
summary judgment on the issue of the liability of the City and 
the Police Department under Monel1. R. 86, Plaintiff's Motion 
for Partial Summary Judgment. The issue of damages was 
explicitly withheld. On July 18, 1986 the defendants filed their



response. R. 88, Defendant's Response to Plaintiff's Motion for 
Partial Summary Judgment. The district court failed to decide 
the plaintiff's motion for at least two years before the Sixth 
Circuit decided Carter v. City of Chattanooga^ Tenn., 850 F.2d 
1119 (6th Cir. 1988) (en banc). An additional three years after 
that event on August 21, 1991 the defendants City of Memphis and 
Memphis Police Department filed a supplemental response to the 
plaintiff's motion for partial summary judgment and cited Carter
V. City of Chattanooga, Tenn., supra. R. ____, Defendants'
Supplemental Response to Plaintiff's Motion for Partial Summary 
Judgment.̂

Finally, on June 30, 1992, six years after the plaintiff's 
motion for partial summary judgment was filed, the district 
court, relying upon Carter, rendered its order denying 
plaintiff's motion for partial summary judgment and granting 
summary judgment for the defendants and dismissing the case. R. 
90, Order Denying Plaintiff's Motion for Partial Summary Judgment 
Granting Summary Judgment for the Defendants and Dismissing Case, 
p. 3. It is from this opinion and subsequent judgment that the 
instant appeal is taken.

ARGUMENT
I. The District Court erred in granting summary judgment to the 
defendants Memphis Police Department and City of Memphis based

^The Defendants' Supplemental Response to Plaintiff's Motion 
for Partial Summary Judgment was not assigned a record entry number 
on the docket sheet.

10



upon Carter v. City of Chattanooga, Tenn.. 850 F.2d 1119 (6th 
Cir. 1988) .

Edward Eugene Garner, a fifteen year old black youth, was
killed by the bullet of an officer with the Memphis Police
Department of the City of Memphis, Tennessee under circumstances
that have without question been held violative of his Fourth
Amendment right to be free from unlawful seizure. Tennessee v.

Garner, 471 U.S. 1 (1985). This appeal involves the fundamental
question of responsibility for the incident. The honorable
district court insists that under the law of the Sixth Circuit no
one is legally responsible. However, in light of Supreme Court
precedent and the three appellate opinions in the instant case,
it is clear that the City of Memphis and the Memphis Police
Department must bear the responsibility for the shooting.
A. The holdings in Garner v. Memphis Police Dept., 710 F.2d 240 
(6th Cir. 1983) and Tennessee v. Garner. 471 U.S. 1 (1985) apply 
to Cleamtee Garner, the City of Memphis, and Memphis Police 
Department.

The Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985)
initially set out its mission and conclusion when it stated:

This case requires us to determine the 
constitutionality of the use of deadly force 
to prevent the escape of an apparently 
unarmed suspected felon. We conclude that 
such force may not be used unless it is 
necessary to prevent the escape and the 
officer has probable cause to believe that 
the suspect poses a significant threat of 
death or serious physical injury to the 
officer or others.

Tennessee v. Garner, 471 U.S. at 3. The Court then set out 
several fundamental truths which justified its conclusion.
First, it found that the use of deadly force was a "seizure"

11



within the meaning of the Fourth Amendment to the Constitution of 
the United States. Id. at 7. Further, the Court reiterated that 
such a seizure must be reasonable as to how and when it is made. 
Id. at 8. It then concluded, "The use of deadly force to prevent 
the escape of all felony suspects, whatever, the circumstances, 
is constitutionally unreasonable." Id. at 11. In other words, 
it is clearly unconstitutional for a police officer to "seize an 
unarmed, nondangerous suspect by shooting him dead." Id.

Because the Tennessee statute at issue in the line of litigation 
authorized the use of deadly force against unarmed, nondangerous 
suspects, then it was unconstitutional as applied. Id. Finally, 
the Supreme Court agreed with the Sixth Circuit in finding that 
the facts of the Garner case did not justify the use of deadly 
force. Id. at 20-21.

Based upon these findings, it is clear that the Supreme 
Court found that Edward Eugene Garner's Fourth Amendment right to 
be free from unreasonable seizure was violated by Officer Hymon. 
Obviously, there can be no more argument. The substantive 
constitutional issues of this case have been determined.
However, the defendants in the instant litigation have attempted 
to avoid these findings and escape liability therefore based upon 
incorrect legal argument and almost nonexistent factual 
development. Therefore, the plaintiff submits that the district 
court was in error when it granted summary judgment to the 
defendants herein.

12



The district court relied exclusively upon the holding of 
Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir. 1988) (en 
banc). There, the Sixth Circuit determined that the holdings of 
Tennessee v. Garner, supra, and Garner v. Memphis Police Dept., 
710 F.2d 240 (6th Cir. 1983) [Garner II] would not be applied 
retroactively to the facts before it nor to any other fact 
patterns predating the Garner decisions. To reach this 
conclusion the Sixth Circuit undertook a thorough analysis of the 
test for retroactivity established in Chevron Oil Co. v. Huson, 
404 U.S. 97 (1971)

It is apparent that the district court in the instant case 
erred in relying on Carter to dispose of the plaintiff's claims 
for one very basic reason. The United States Supreme Court in 
Tennessee v. Garner had already determined that its decision and

'‘In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1971) the 
Court established the following three part analysis when it stated: 

In our cases dealing with the nonretroactivity 
question, we have generally considered three 
separate factors. First, the decision to be 
applied nonretroactively must establish a new 
principle of law, either by overruling clear 
past precedent on which litigants may have 
relied . . ., or by deciding an issue of first 
impression whose resolution was not clearly 
foreshadowed. . . . Second, it has been
stressed that "we must . . . weigh the merits 
and demerits in each case by looking to the 
prior history of the rule in question, its 
purpose and effect, and whether retrospective 
operation will further or retard its 
operation." . . . Finally, we have weighed the 
inequity imposed by retroactive application, 
for "[w]here a decision of this Court could 
produce substantial inequitable results if 
applied retroactively, there is ample basis in 
our cases for avoiding the 'injustice or 
hardship' by a holding of nonretroactivity."

13



finding of constitutional violation would apply to the parties
before it.* The Supreme Court stated;

We wish to make clear what our holding means 
in the context of this case. . . .The 
possible liability of the remaining 
defendants —  the Police Department and the 
city of Memphis —  hinges on Monel1 v. New 
York City Dept, of Social Services, 436 U.S.
658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), 
and is left for remand. We hold that the 
statute is invalid insofar as it purported to 
give Hymon the authority to act as he did.
As for the policy of the Police Department, 
the absence of any discussion of this issue 
by the courts below, and the uncertain state 
of the record, preclude any consideration of 
its validity.
The judgment of the Court of Appeals is 
affirmed, and the case is remanded for 
further proceedings consistent with this 
opinion. [Emphasis added].

Tennessee v. Garner, 471 U.S. at 23. Although this opinion lacks 
an explicit directive concerning its retroactive effect in all 
cases, the opinion clearly states the Court's mandate with regard 
to the parties before it.

As will be seen infra, the determination of whether a 
particular new rule of law has been applied to the parties in the

*The district court in the instant case interpreted Carter v. 
Chattanooga, Tenn., 850 F.2d 1119 (6th Cir. 1988) as overruling 
that part of Garner v. Memphis Police Department, et al., 710 F.2d 
240 (6th Cir. 1983) which had held that there was no immunity from 
Section 1983 liability for the municipality. However, the Carter 
decision is purely an analysis of retroactivity, not a dissertation 
on the merits of municipal immunity. In fact, the Sixth Circuit 
since Carter has recognized that a municipality may be held liable 
for constitutional violations in light of present law. Barber v. 
City of Salem, Ohio, 953 F.2d 232 (6th Cir. 1992); Marsh v. Arn, 
937 F.2d 1056 (6th Cir. 1991). Accordingly, the district court in 
the instant case was in error in deciding this case apparently in 
part on the issue of immunity.

14



case in which it was established has become of initial 
significance. Of course, this determination is simple when the 
court adopting the new rule specifically reserves the issue as 
the Supreme Court did in American Trucking Assns., Inc. v. 
Scheiner, 483 U.S. 266, 297-98 (1987) or where the court 
specifically resolved the issue itself. See Rodriguez de Quijas

V. Shearson/American Express, Inc., ____ U.S. ____, 109 S.Ct.
1917 (1989). If neither of these contingencies are met, however, 
the court is "properly understood to have followed the normal 
rule of retroactive application in civil cases." James B. Beam

Distilling Co. v. Georgia, _____ U.S. _____, 111 S.Ct. 2439,
2444-2445 (1991)(Souter, plurality opinion). See also Sterling 
V. Block, 953 F.2d 198, 200 (5th Cir. 1992)(where court does not 
specifically reserve retroactivity issue or definitively decide 
it, opinion applies retroactively).

The Supreme Court could not have been clearer in its intent 
to apply its rulings in Tennessee v. Garner to the parties before 
it. Had it not expected the decision to apply to Garner and the 
City of Memphis, there would have been no need to remand the case 
to the lower court for consideration under Monell. There would 
have then been no "custom or policy" issue because there would 
have been no constitutional violation.

The Supreme Court in Beam, supra, was faced with a similar 
situation in determining whether the rule announced in Bacchus 
Imports, Ltd. v. Dias, 468 U.S. 263 (1984) applied retroactively 
to the Bacchus parties. It finally determined that since the

/

15



Court in Bacchus remanded the case for consideration of a 
defense, it thus should be read to have applied its rule 
retroactively. Beam, 111 S.Ct. at 2444-2445. That is the same 
issue before this Court, and it can likewise be determined that 
the Supreme Court intended for its ruling in Tennessee v. Garner 
to apply to the litigants before it. See also, e.g., Patterson 
V. McLean Credit Union, 491 U.S. 164 (1989); Lampf v. Gilbertson, 
____ U.S. ____, 111 S.Ct. 2773 (1991).

The Sixth Circuit in Garner II also made no secret of its 
intent that its decision also be applied to the Garner parties.
In Garner II this Honorable Court made the initial determination 
that the state statute in question was unconstitutional under the 
Fourth Amendment analysis. Garner II, 710 F.2d at 246. The 
Court also held that there was no type of immunity for 
municipalities for Section 1983 liability under Owen v. City of 
Independence, 445 U.S. 622 (1980). Garner II, 710 F.2d at 248- 
249. The court then directly remanded the case for "further 
proceedings consistent with this opinion." Id. at 249. Of 
course, there really could be no more distinct expression of the 
court's intent short of a direct command that the rule would be 
applied retroactively to the Garner litigants.

This Honorable Court has already recognized that the Garner 
decisions have been applied to the parties before those courts. 
The Carter court criticized and, indeed, overruled the holding in 
Smith V. General Motors Corp., 747 F.2d 372 (6th Cir. 1984). 
Carter, 850 F.2d at 1131-1133. The Smith decision had

16



established that if a new precedent were applied to the parties 
before the court rendering the new decision, then it applied 
retroactively to all like situations.® The treatment of Smith in 
Carter would have been even more extraneous to the ultimate 
holding without the implicit acknowledgement that the Tennessee 
V. Garner and Garner II courts intended for the new rule to be 
applied to the parties before them. Carter, 850 F.2d at 1131- 
1133. Furthermore, the Carter decision specifically recognized 
this retroactive application when it stated, "Owen, like Garner, 
did apply a "new" constitutional interpretation to the facts 
before it, but there was no discussion of retroactivity or of 
Chevron standards." Carter, 850 F.2d at 1134.

The Tennessee v. Garner decision clearly established the 
constitutional violation in the instant case. No application of 
Carter can change that holding. The Supreme Court left no 
grounds for escaping liability of the City and Police Department 
except if there were no "policy or custom" which precipitated 
this violation. The application of Carter to avoid the policy or 
custom determination is clearly incorrect. Additionally, the 
application of any retroactivity analysis in the instant case

®The Smith rule had also been applied in Ratliff v. Wellington 
Exempted Village School Board of Education, 820 F.2d 792 (6th Cir. 
1987)(Supreme Court's application of new rule ta parties before it 
conclusively indicates its intention that rule apply to all) and 
Gurish V. McFaul, 801 F.2d 225 (6th Cir. 1986)(Where Supreme Court 
applied rule to case before it and made no statement as to other 
cases, rule would be retroactive). It is ironic that just three 
years later, the United States Supreme Court would reinstate the 
validity of this line of cases with its decision in James B. Beam
Distilling Co. v. Georgia, ____ U.S. ____, 111 S.Ct. 2439 (1991).
See, infra, pp. 21-23.

17



such as that undertaken in Carter v. City of Chattanooga, supra,
was pretermitted by both the United States Supreme Court and the
Sixth Circuit Court of Appeals. Accordingly, the district court
here erred in relying upon Carter v. City of Chattanooga to
justify its grant of summary judgment to the defendants.
B. The district court erred in reiving upon Carter v. City of 
Chattanooga, 850 F.2d 1119 (6th Cir. 1988) since the "law of the 
case" doctrine precludes relitiaation of both the merits and the 
retroactivity rulings already made in this case.

As has just been demonstrated, the United States Supreme 
Court has determined the retroactive application of the Garner 
fleeing felon rule to the Garner litigants. Further, the Supreme 
Court pointed out the substantive constitutional violation which 
has occurred in this case. The Supreme Court then remanded 
Tennessee v. Garner for Monell findings and exclusively for 
Monell findings..

It is fundamental that when a cause has been remanded by an 
appellate court, the lower court "must upon the remand proceed in 
accordance with the mandate and law of the case as established by 
the appellate court." Petition of United States Steel Corp., 479 
F.2d 489, 493 (6th Cir. 1973). "'Issues decided at an early 
stage of litigation, either explicitly or by necessary inference 
from the disposition, constitute the law of the case.'" Coal 
Resources, Inc. v. Gulf & Western Industries, 865 F.2d 761, 766 
(6th Cir. 1989) quoting Kori Corp. v. Wilco Marsh Buggies & 
Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir. 1985). This "law 
of the case" doctrine is designed to put an end to repeated 
appeals on the same issue. United States Steel, 479 F.2d at 494.

18



It also assures the obedience of lower courts to the decision of 
superior courts. "After the law of the case is determined by a 
superior court, the inferior court lacks authority to depart from 
it." NAACP, Detroit Branch v. Police Officers Ass'n, 675 F.Supp. 
790, 791 (E.D. Mich. 1988) citing IB J. Moore, J. Lucas & T. 
Currier, Moore's Federal Practice para. 0.0404(10) at 170 {citing 
In re Sanford Fork & Tool Co., 160 U.S. 247 (1895)). Indeed, 
"'The district court owes obedience to the mandate of the supreme 
court or the court of appeals, and must carry it into effect 
according to its terms.'" Id.

Since the issue of retroactivity in the instant line of 
litigation was decided by the Supreme Court, the district court 
was in error in relying upon Carter v. City of Chattanooga, 
supra, implicitly to hold otherwise. The mandate by the Supreme 
Court dictated that the district court must apply Garner 
retroactively and should determine the issues arising under the 
Monell analysis. Tennessee v. Garner, 471 U.S. at 23. This 
district court had no discretion but to obey the mandate.
However, the district court has refused to do so, and its 
decision here must be reversed.

The "law of the case" doctrine is not set in stone and is 
subject to at least three exceptions. A lower court may reject 
the law of the case when substantially different evidence is 
submitted on subsequent trial, there has been an intervening, 
overruling decision by a controlling authority, or there was a 
clearly erroneous decision. United States Steel, 479 F.2d at

19



494. In the instant case, there has been no other trial, and the 
Tennessee v. Garner decision can hardly be claimed to be clearly 
erroneous.

Further, there has been no intervening decision which 
overrules the impact of the Tennessee v. Garner substantive rule 
nor its directive on the retroactive application of that rule to 
the parties in the Garner litigation. It is axiomatic that 
Carter v. City of Chattanooga could not overrule the Supreme 
Court holding in this case.’ In fact, the Carter case could be 
likened to a deed filed outside the direct line of title. The 
Carter case in no way affects the rights of the Garner parties 
previously decided by the Garner courts nor does it disturb the 
law of the case. Therefore, the district court in the instant 
case is compelled to follow the remand instructions of the 
Supreme Court and apply the Garner rules to the litigants here. 
Additionally, the district court by granting the summary judgment 
to the defendants based on Carter avoided the clear direction of 
the Court to determine the Monell issues. Its failure to do so 
is reversible error.
C. The Sixth Circuit and District Court cannot use Chevron Oil 
Co. V. Huson. 404 U.S. 97 (1971) to overrule the effective 
decision of Tennessee v. Garner. 471 U.S. 1 (1985^ according to

’Even when a lower court is faced with controlling Supreme 
Court precedent that has been called into serious doubt by another 
line of Supreme Court cases, that lower court is obliged to follow 
the controlling case. See Rodriguez de Quijas v. Shearson/American
Express, Inc., ____ U.S. ____, 109 S.Ct. 1917, 1921-1922
(1989)(Fifth Circuit Court of Appeals reprimanded for determining 
Supreme Court precedent was overruled before Supreme Court decided 
the issue).

20



the law of James B. Beam Distilling Co. v. Georgia, 
. Ill S.Ct. 2439 ri991^.

u.s.

In 1991, the United States Supreme Court significantly 
clarified the jurisprudence of retroactivity analysis when it 
decided James B. Beam Distilling Co. v. Georgia, ____ U.S.
Ill S.Ct. 2439 (1991). There, Justice Souter wrote for a 
plurality court and denounced the concept of limited retroactive 
application of decisions. Beam, 111 S.Ct. at 2444-2445.
Instead, the court adopted the bright line rule that " . . .  when 
the Court has applied a rule of law to the litigants in one case 
it must do so with respect to all others not barred by procedural 
requirements or res judicata." Id. at 2448. In very basic terms 
the Supreme Court decided that "similarly situated litigants 
should be treated the same. . ." Id. at 2446. The court also 
explicitly rejected a Chevron Oil analysis in this context when 
it stated:

Nor, finally, are litigants to be 
distinguished for choice-of-law purposes on 
the particular equities of their claim to 
prospectivity: whether they actually relied
on the old rule and how they would suffer 
from retroactive application of the new. It 
is simply in the nature of precedent, as a 
necessary component of any system that 
aspires to fairness and equality, that the 
substantive law will not shift and spring on 
such a basis. To this extent, our decision 
here does limit the possible applications of 
the Chevron Oil analysis, however irrelevant 
Chevron Oil may otherwise be to this case.
Because the rejection of modified 
prospectivity precludes retroactive 
application of a new rule to some litigants 
when it is not applied to others, the Chevron 
Oil test cannot determine the choice of law 
by relying on the equities of the particular 
case. [Citations omitted]. Once retroactive

21



application is chosen for any assertedly new 
rule, it is chosen for all others who might 
seek it prospective application. The 
applicability of rules of law are not to be 
switched on and off according to individual 
hardship; allowing relitigation of choice-of- 
law issues would only compound the challenge 
to the stabilizing purpose of precedent posed 
in the first instance by the very development 
of "new" rules.

Beam, 111 S.Ct. at 2448.
The effect of Beam on the Carter decision is obvious and 

inescapable.* The Carter court addressed the retroactive 
application of Tennessee v. Garner, supra, and Garner II, supra 
without ever mentioning the retroactivity of those decisions to 
the litigants before those courts. Instead, the Court launched 
into an exhaustive analysis of the Chevron Oil factors. Carter, 
850 F.2d at 1123. Beam held that it was error to rule the way 
the Carter court did. Therefore, it is clear that the Carter 
reasoning, regardless of its academic merits, can no longer be 
considered controlling authority.

Because of this erosion of the underlying basis of the 
Carter decision, it was error for the district court to rely upon 
it in the instant case. The Carter case can certainly not be 
read as overruling any part of the litigation in the Garner 
appellate trilogy because of its deterioration in the face of

*It could be noted that James B. Beam Distilling Co. v.
Georgia, ____ U.S. ____, 111 S.Ct. 2439 (1991) may only apply to
constitutional issues. However, the same Supreme Court on the same 
day had no problems applying a statutory interpretation
retroactively to the parties before it in Lampf v. Gilbertson, ____
U.S. ____, 111 S.Ct. 2773 (1991).

22



Beam. Therefore, the plaintiff submits that the judgment of the
district court dismissing this case should be reversed.
II. The district court erred in granting summary judgment to the 
defendants since the plaintiff submitted uncontradicted evidence 
which satisfied the standard of Monell v. New York City Dept, of 
Social Se2rvices. 436 U.S. 658 (1978).

It is the rule of court and the law of this circuit that
summary judgment may be granted only, "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,show that there is no
genuine issue as to any material fact that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).^
The movant bears the burden of demonstrating the absence of all
genuine issues of material fact. Gregg v. Allen-Bradley Co., 801
F.2d 859, 861 (6th Cir. 1986). "[T]he burden on the moving party
may be discharged by 'showing'— that is, pointing out to the
district court —  that there is an absence of evidence to support
the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S.
317, 325, 106 S.Ct. 2548, 2554 (1986). Once the movant has
successfully borne this burden, the nonmovant then must set forth
specific facts showing a genuine triable issue. Gregg, 801 F.2d
at 861. The Supreme Court has expounded by stating:

There is no issue for trial unless there is 
sufficient evidence favoring the nonmoving 
party for a jury to return a verdict for that 
party. If the [nonmovant's] evidence is 
merely colorable, or is not significantly

®It should be noted that the defendants herein did not move for 
summary judgment. Rather, the Court sua sponte granted the 
judgment in light of the supplemental response to the plaintiff's 
motion for partial summary judgment.

23



probative, summary judgment may be granted.
[Citations omitted].

Anderson v. Liberty Lobby^ Inc., 477 U.S. 242, 249-50, 106 S.Ct. 
2505, 2511 (1986).

When the district court made its ruling on the plaintiff's 
motion for partial summary judgment, the Monell v. New York City 
Dept, of Social Services, 436 U.S. 658 (1978) determination was 
the sole issue before the court on mandate from the Supreme 
Court. In order for the summary judgment to stand there would 
have to exist no genuine issues of material fact on the question 
of Monell policy from the viewpoint of the defendants. The 
defendants presented no affidavits, no depositions, no testimony 
excerpts, or other evidence to the district court designed to 
indicate an absence of genuine issues. Rather, the defendants 
and the court relied upon a legal argument. As will be seen 
infra, that argument is unsupported in law as well as fact. 
Therefore, it is the plaintiff's position that under the Catrett 
and Anderson jurisprudence, this Court should have at the very 
least rejected any summary judgment for the defendants in light 
of the record.

The Supreme Court in Monell significantly altered Section 
1983 litigation by recognizing that municipalities were persons 
within the meaning of 42 U.S.C. Section 1983. However, the Court

*°As will be seen infra, the plaintiff submits that the record 
is, indeed, free of dispute, but that the unchallenged evidence 
establishes the existence of Monell policy. Consequently, the 
plaintiff will ask this Court to reverse the district court and 
enter a judgment in favor of the plaintiff on liability.

24



determined that cities could be sued directly under Section 1983 
only if "the action that is alleged to be unconstitutional 
implements or executes a policy statement, ordinance, regulation, 
or decision officially adopted and promulgated by that body's 
officers." Monell, 436 U.S. at 690. In other words, the policy 
or custom must be the "moving force of the constitutional 
violation." Id. at 694. The Sixth Circuit has refined that 
standard and stated:

. . .[T]he complainant must identify the 
policy, connect the policy to the city itself 
and show that the particular injury was 
incurred because of the execution of that 
policy. Plaintiff must, of course, prove 
that the injury was caused by city policy.

Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987) citing

Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984).
The plaintiff submits that he has presented uncontradicted
evidence of these requirements, and there are at least
significant issues of material facts that should have prevented
the grant of summary judgment for the defendants. Consequently,
the decision of the trial court should be reversed.
A. General Order 5-74 of the Memphis Police Department reflected 
the "policy" of the department under the Monell standard.

The policy at issue must, of course, meet the definition of
"policy" under the Supreme Court standard in Pembaur v. City of
Cincinnati, 475 U.S. 469 (1986). There, the Court stated:

Municipal liability attaches only where the 
decision-maker possesses final authority to 
establish municipal policy with respect to 
the action ordered. The fact that a 
particular official —  even a policy making 
official —  has discretion in the exercise of

25



particular functions does not, without more, 
give rise to municipal liability based on an 
exercise of that discretion. See e.g.,
Oklahoma City v. Tuttle, 471 U.S. [808], at
____, 105 S.Ct., [2427] at ____ . The
official must also be responsible for 
establishing final government policy 
respecting such activity before the 
municipality can be held liable.

Pembaur, 475 U.S. at 462. See Coogan, 820 F.2d at 175.
There can be no doubt but that the Memphis Police Department

General Order 5-74 reflected the official policy of the
department and of the city when Garner was shot. R. 86, Exhibit
1 to Plaintiff's Motion for Partial Summary Judgment, pp. 1-3.
[General Order 5-74]. The General Order provided in pertinent
part:

b. Deadly Force.
DEADLY FORCE may be used in the following 
circumstances only after all other reasonable 
means to apprehend or otherwise prevent the 
offense may have been exhausted:
(3) Other Felonies Where Deadly Force is 
Authorized.

After all reasonable means of preventing 
or apprehending a suspect have been 
exhausted, DEADLY FORCE is authorized in the 
following crimes:
(a) Kidnapping
(b) Murder in the 1st or 2nd degree
(c) Manslaughter
(d) Arson (including the use of firebombs)
(e) Rape
(f) Assault and battery with intent to 
carnally know a child under 12 years of age
(g) Assault and battery with intent to 
commit rape
(h) Burglary in the 1st, 2nd, or 3rd degree
(i) Assault to commit murder in the 1st or 
2nd degree
(j) Assault to commit voluntary manslaughter

26



(k) Armed and simple robbery 
General Order 5-74, pp. 2-3.

This General Order was signed by J. W. Hubbard who was 
director of Police of Memphis on the day that Garner was killed. 
The defendants admitted in their answer that Hubbard was 
responsible for establishing general practices and policies with 
respect to the operation of the police department. R. 8, Answer, 
p. 3. Therefore, it is really beyond dispute, and the City has 
not contended otherwise that this order reflected the official 
policy of the department.
1. State law did not displace the City of Memphis^ choice among 
various alternatives when adopting the policy in issue.

To the district court, the defendants City of Memphis and 
Memphis Police Department argued that General Order 5-74 could
not be an official policy of the City or Department for which
they could be held liable based in part upon the following 
Pembaur language:

We hold that municipal liability under 
Section 1983 attaches where - and only 
where - a deliberate choice to follow a 
course of action is made from among various 
alternatives by the official or officials
responsible for establishing final policy
with respect to the subject matter in 
question. See Tuttle, supra, at 105 S.Ct., 
at 2436 ("'policy' generally implies a course 
of action chosen from among various 
alternatives.'")

Pembaur, 106 S.Ct. at 1300. The defendants here rationalize that 
because the General Order was based upon state and case law, the 
so-called policy was established by the legislature and courts 
and not the city. "The City was merely following the well-

27



settled law. If the City was to provide for the use of deadly 
force, it had no choice or alternative but to follow the existing 
law." R. 89, Memorandum of Law in Support of Defendants'
Response to Plaintiff's Motion for Partial Summary Judgment, p.
2 .

This argument falls flat for several reasons. First, the 
statute at issue read, "[i]f, 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." 
T.C.A. Section 40-7-108 (1982)." Try as one might one would be 
hard pressed to read this statute as compelling the City of 
Memphis and the Memphis Police Department to adopt a policy in 
conformance with the statute. It is in no way a mandate to 
cities or departments to shoot fleeing felons. It does not 
indicate that a city may not take a more restrictive approach, 
and it does not take a city's choice in implementing the law away 
from it. Rather, it only legalized the shooting of fleeing 
felons under state law.

Next, assuming arguendo, that the state law mandated the 
city's general order, this would still not relieve the city of 
liability. The court in Davis v. City of Camden, 657 F.Supp. 396 
(D.N.J. 1987) rejected this same attempt by a county to avoid 
liability. There, the plaintiff brought a civil rights action 
against a county and others claiming an unconstitutional strip

"At the time of the Garner shooting, this statement was 
codified at T.C.A. Section 40-808.

28



search. The county maintained a "policy of having an officer of 
the same sex strip search any person unable to post bail who was 
to be lodged in the Camden County Jail." Davis, 657 F.Supp. at 
398. However, the county correctly noted that its strip search 
policy was mandated by a New Jersey state regulation which stated 
that all newly admitted prisoners would be searched including a 
strip search for weapons and contraband. Id. at 398 n. 2, 402.

After finding that the strip search was indeed violative of 
the plaintiff's constitutional rights, the court examined the 
liability of the county. Id. at 402. Just as the defendants in 
the instant case have done, the County in Davis asserted that 
since the policy at issue was mandated by a state regulation, 
then the policy was not "policy" as contemplated by Monell. 
Rather, the County argued that it was state policy that county 
officials merely enforced. Davis, 657 F.Supp. at 402. The court 
then stated its reasons for holding the county liable 
nonetheless.

First, the Davis court relied on Monell to reject this
argument and stated that the county's dilemma simply was not the
problem to which Monell's official policy requirement was
addressed. To reach this conclusion the court relied upon the
legislative history of Section 1983 and the conclusion that:

"[i]f the Forty-second Congress had thought 
it inappropriate that cities be held liable 
for carrying out state mandated policies, it 
would not have permitted suits against cities 
at all, for that Congress regarded everything 
a city did as merely implementing such 
policies."

29



Davis, 657 F.Supp. at 402 quoting Schnapper, Civil Rights 
Litigation After Monell, 79 Colum.L. Re. 213, 226 (1979).

Next, the Davis court looked to the underlying purpose of
Section 1983 which was designed to insure that victims of
constitutional deprivations are compensated for those violations.
Davis, 657 F.Supp. at 403. In so finding, the court relied upon
the reasoning of Owen v. City of Independence, 445 U.S. 622, 100
S.Ct. 1398 (1980) where the Supreme Court stated:

[e]ven where some constitutional development 
could not have been foreseen by municipal 
officials, it is fairer to allocate any 
resulting financial loss to the inevitable 
costs of government borne by all the 
taxpayers, than to allow its impact to be 
felt solely by those whose rights, albeit 
newly recognized, have been violated."

Owen, 445 U.S. at 655. The Davis court concluded that Owen
forced a choice between depriving victims of recovery and
imposing liability without any real fault on governments to the
benefit of victims. Davis, 657 F.Supp. at 403.

The Davis court also noted that many courts have assessed 
liability to local governing bodies for unconstitutional policies 
that were simply authorized, but not mandated, by state law. As 
support, the court cites Evers v. County of Custer, 745 F.2d 
1196, 1203-04 (9th Cir. 1984) in which a county declared a once 
private road to be a public thoroughfare pursuant to the 
provisions of the Idaho Code. After finding that the plaintiff 
had stated a claim for violation of due process, the court 
addressed the immunity issue. Evers, 745 F.2d at 1201-03. The 
county argued that it was only acting according to state law

30



rather than carrying out county policy. However, the court found
that this argument only applied to the individual commissioner's
good faith in applying the statute. This court also relied on
Owen where the Supreme court had stated:

The knowledge that a municipality will be 
liable for all of its injurious conduct, 
whether committed in good faith or not, 
should create an incentive for officials who 
may harbor doubts about the lawfulness of 
their intended actions to err on the side of 
protecting citizens' constitutional rights.
Furthermore, the threat that damages might be 
levied against the city might encourage those 
in a policymaking position to institute 
internal rules and programs designed to 
minimize the likelihood of unintentional 
infringements on constitutional rights.

Owen, 445 U.S. at 650-52, 100 S.Ct. at 1415-16 (1979). See also

Familias Unidas v. Briscoe, 619 F.2d 391 (1980).
In the instant case, the defendants themselves have in 

effect admitted that the Tennessee law did not mandate the policy 
choice they made. The defendants stated, "Testimony at the trial 
was that the guideline for the City's deadly force policy was 
T.C.A. 40-808 and that the City's policy was more restrictive 
than the statute." R. 78, Defendant's Response to Plaintiffs' 
Memorandum of Law Pursuant to the Court's Order of April 29,
1980, p. 2. If the state law had mandated a policy, then the 
city would not have had the discretion to adopt a more 
restrictive policy.

In sum, the City of Memphis' argument must fail. Here, 
there can be no real argument that the state law mandated the 
city's policy. However, even if it did, the purpose behind

31



Section 1983 and the holdings of Owen v. City of Independence^ 
supra, and Davis indicate that the city remains liable 
nonetheless. In other words, the city must take responsibility 
for its unconstitutional actions. The Monell court stated, 
"[W]hen execution of a government's policy or custom, whether 
made by its lawmakers or by those whose edicts or acts may fairly 
be said to represent official policy, inflicts the injury . . . 
the government as an entity is responsible under Section 1983." 
Monell, 436 U.S. at 695. [Emphasis added.]

It is crystal clear that the defendants' legal arguments in 
the instant case are not supported in the law. Therefore, the 
grant of summary judgment, although premised on Carter v. City of 
Chattanooga, simply cannot stand.
2. The undisputed facts of record establish that the city 
adopted the policy at issue from an array of alternatives.

Although the City persists in arguing that the policy was 
not a conscious choice from among differing alternatives, the 
evidence of record contradicts that argument. Consequently, 
there at least exists disputed issues of fact which should have 
negated any grant of summary judgment for the defendants.

The plaintiff submitted the discovery deposition of the 
Honorable Wyeth Chandler, the Mayor of Memphis at the time of the 
Garner shooting, taken in the cause Ira Lee Madison, et al v. 
Memphis Police Department, et al., No. C/A C-73-21 (W.D. Tenn. 
Dec. 19, 1979) which established how the police department and he 
reasoned and adopted the policy reflected in General Order 5-74. 
R. 86, Exhibit 2 to Plaintiff's Motion for Partial Summary

32



Judgment. [Chandler Deposition]. Chandler discussed a change of 
Memphis Police Department policy arising after a youth had been 
shot by police while "joyriding" in a vehicle. Chandler 
Deposition, p. 10. Chandler also stated that he recognized that 
the state law in effect at the time of the incident would have 
allowed the shooting of fleeing felons, but that "we began to 
relax that in certain areas, not only joy riders, but primarily 
embezzlers, fraud people and so forth. It may be a felony, but I 
didn't look on it as necessary to shoot them if they were about 
to escape." Chandler Deposition, p. 11. Chandler also described 
discussions he had with certain personnel including Chief of 
Police Price concerning the relaxation of the formal policy of 
the police department concerning the use of deadly force in 
apprehending certain felons. Chandler Deposition, pp. 12-14. 
Additionally, Chandler identified a statement issued from Chief 
Bill Price, dated January 20, 1972 that basically reflected the 
policy eventually announced in General Order 5-74. Chandler 
Deposition, pp. 20-21. Indeed, Chandler considered this to be 
the policy of the police department after January 20, 1972. 
Chandler Deposition, p. 23.

Mayor Chandler further testified that he carefully 
considered and personally approved the policy's inclusion of 
burglary as an underlying offense justifying the use of deadly 
force to prevent flight. The Mayor, in his role as ultimate 
municipal decisionmaker, had a clear view of the policy that he 
wanted to be implemented by the Memphis Police force. He stated,

33



"I just don't think we ought to let people go in and out at will, 
invade people's homes, businesses or anything else, and then, get 
away by simply running away. . Chandler Deposition, p. 31.
Mayor Chandler further opined, "I don't think he [any burglar] 
should be allowed to just burgle at will as long as he can outrun 
the police.” Chandler Deposition, p. 33. Indeed, at the very 
time the Mayor acted to exempt joy riders from the use of deadly 
force to prevent their escape, he reaffirmed its use in any 
burglary regardless of the element of danger. "It was my opinion 
then and still is at this time that those [third degree burglary 
suspects] should not be eliminated from the fleeing felon 
policy." Chandler Deposition, p. 30.

The possibility of eliminating nighttime burglary of 
businesses from the list of felonies for which deadly force was 
allowed was discussed in a meeting of certain representatives. 
However, that felony was not eliminated from the policy.
Chandler Deposition, pp. 30-33.

All of this deliberation is expressed in General Order 5-74 
which eliminates from the deadly force application just those 
felonies about which Chandler was concerned. Consequently, it is 
apparent from the record that the policy makers of the City of 
Memphis and Memphis Police Department consciously decided to 
protect certain classes of felons from the overanxious shot of a 
police officer. However, it was also a carefully considered 
decision to allow for the shooting of nonviolent, nondangerous 
fleeing burglary felons in contradiction of the dictates of the

34



Fourth Amendment to the United States Constitution. In light of 
this undisputed testimony and proof, it seems a bit incongruous 
for the defendants now to take the position that they were not in 
a position to choose their city policy.

Consequently, there can be little doubt that General Order
5-74 regarding the deadly force procedure to be utilized by the
officers of the Memphis Police Department was indeed the
carefully considered choice and officially sanctioned policy of
the City of Memphis and the Memphis Police Department.
Consequently, the parameters of Monell and Pembaur have been
satisfied contrary to the argument submitted by the defendants in
response to the motion for partial summary judgment.
B. The unconstitutional policy of the City of Memphis caused the 
death of Edward Eugene Garner.

It is also clear that this policy is precisely what the 
Supreme Court disapproved in Tennessee v. Garner, supra. The 
policy practically mirrors the state statute at issue in the 
history of this litigation. The Court held not only that the 
shooting in this case was unconstitutional, but that to the 
extent the state statute authorized the use of deadly force 
against such nonviolent, nondangerous fleeing suspects, so too 
was the statute unconstitutional. Tennessee v. Garner, 471 U.S. 
at 12. Thus, the Memphis policy that authorized the shooting in 
this case was premised on the precise factor that the Tennessee 
V. Garner Court held insufficient. To the extent that it 
authorized the shooting in the instant case, and it 
unquestionably authorized it, the policy must be considered

35



unconstitutional. Just as the court in Garner II stated of the 
state statute, this policy was invalid because "it does not put 
sufficient limits on the use of deadly force. It is 'too 
disproportionate.'" Garner II, 710 F.2d at 246.

Accordingly, this plaintiff has identified to the trial 
court and to this Honorable Court the policy at issue in the 
instant case. Further, that policy has been connected to the 
city. Coogan, 820 F.2d at 176. It is also clear that the 
Memphis deadly force policy was adhered to by the police officer 
and caused Edward Eugene Garner's death. It was the "moving 
force of the constitutional violation." Monell, 436 U.S. at 694. 
The officer was taught that it was proper to kill a fleeing 
nondangerous felon rather than run the risk of allowing him to 
escape. Garner I, 600 F.2d at 53. This is confirmed by the 
testimony at the 1976 trial which established that the firearms 
review board found that the use of deadly force in this case was 
justified and within policy. Hymon at TR 608-25, 633. Further, 
the Supreme Court in Tennessee v. Garner noted that "Hymon was 
acting under the authority of a Tennessee statute and pursuant to 
Police Department policy." Tennessee v. Garner, 471 U.S. at 4. 
Consequently, this plaintiff has carried its burden of showing 
that the death of Edward Eugene Garner was incurred because of 
the execution of the unconstitutional policy of the city of 
Memphis, and his injury was caused by city policy. Coogan, 820 
F.2d at 176.

36



The defendants here were granted summary judgment sua sponte 
by the court in reliance upon Carter v. City of Chattanooga, 
supra. As has been seen from the preceeding argument, Carter is 
not controlling. For the grant to summary judgment to stand 
there would have to be implied a finding that no genuine issue of 
material fact existed as to the policy of the City of Memphis and 
the Memphis Police Department. However, such a finding cannot be 
made in light of the plaintiff's proof submitted in support of 
his motion for partial summary judgment. There is evidence of 
the official policy maker adopting a course of conduct for a city 
department, evidence of a conscious choice from among various 
alternatives when selecting the policy, and execution of the 
policy resulting in the death of Edward Eugene Garner. Summary 
judgment for the defendants, then, seems highly inappropriate in 
light of the record before the Court.

III. This Honorable Court should reverse the grant of summary 
nudcrment to the defendants, enter iudcrment in favor of the 
plaintiff on liability, and remand to the district court for a 
determination on damages.

The history of the instant litigation establishes the need 
for this Honorable Court to take decisive measures in disposing 
of the instant appeal. The Sixth Circuit has adopted a rule of 
judicial economy consideration for determining the course of a 
case on remand. The Court has stated, "Although we recognized 
that the normal procedure is to remand a case where the lower 
court has not considered a pertinent issue, considerations such 
as judicial economy dictate otherwise where the correct

37



resolution of the issue is clear." In Re Hronek, 563 F.2d 296, 
297 (6th Cir. 1977). Accord Otto v. Variable Annuity Life 
Insurance Co., 814 F.2d 1127 (7th Cir. 1986)(because nothing was 
to be gained from remand and in the interest of judicial economy, 
the appellate court granted summary judgment); Nazay v. Miller, 
et al., 949 F.2d 1323 (3rd Cir. 1991)(rule allowing appellate 
court to direct judgment is consonant with policy of conserving 
scarce judicial resources where further factual development not 
required).

As the record reveals, the initial trial of this case was 
conducted before the bench in August 1976, and an opinion was 
entered in September 1976. Subsequently, the first appeal was 
taken, and the first remand from this Honorable Court was issued. 
That remand specifically instructed the district court to 
determine whether a "custom or policy" under the Monell case 
caused young Garner's death. Garner I, 600 F.2d at 55. The 
district court then decided that in its opinion there had been no 
constitutional violation. Accordingly, there was no need to 
undertake a Monell analysis. R. 72, Order, August 10, 1979, p.
8. This represents the first instance of the district court 
avoiding the direction of the Sixth Circuit.

After the second opinion from the district court, the 
plaintiff again appealed. In 1983, seven years after the trial, 
the Sixth Circuit remanded for a determination under, inter alia, 
Monell. Garner II, 710 F.2d at 249. At this point, the district 
court was deprived of the opportunity to respond due to the grant

38



of certiorari. In its subsequent opinion, the Supreme Court 
clearly directed the court below to consider the Monell issues. 
Tennessee v. Garner, 471 U.S. 1 (1985). That Supreme Court 
decision was rendered in 1985.

On June 6, 1986 the plaintiff filed the motion for partial 
summary judgment on the Monell issues. The defendants filed 
their response immediately, but the district court failed to rule 
on the issue. Two years later the Sixth Circuit decided Carter 
V. City of Chattanooga, 850 F.2d 1119 (6th Cir. 1988). However, 
the defendants did not supplement their response to the motion 
for partial summary judgment until August 21, 1991. Still, the 
district court did not rule. Finally, on June 30, 1992, the 
district court issued its short three page opinion in which it 
relied on Carter and dismissed the case. This dismissal was 
issued six years after the initial motion for partial summary 
judgment was filed and seventeen years after the suit was 
instigated. This district court again failed to consider the 
Monell issues although it had been directed to do so by three 
appellate courts.

In light of the district court's repeated avoidance of the 
Monell issue, this plaintiff urges this Court to use its 
discretion in resolving this dispute. 28 U.S.C. Section 2106 
provides:

The Supreme Court or any other court of 
appellate jurisdiction may affirm, modify, 
vacate, set aside or reverse any judgment, 
decree, or order of a court lawfully brought 
before it for review, and may remand the 
cause and direct the entry of such

39



appropriate judgment, decree, or order, or 
require such further proceedings to be had as 
may be just under the circumstances.

This statute has empowered Courts of Appeals to reverse a grant
of summary judgment issued by the district court and grant
summary judgment to the opposite party without remanding the
case. Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593 (7th
Cir. 1972). The Morgan Guaranty court was asked to direct the
district court to enter summary judgment in favor of the
plaintiff who had lost before the district court. Morgan

Guaranty, 466 F.2d at 599. The Court noted peripherally that the
denial of summary judgment, although clearly an interlocutory
order, merged with the final dismissal making the ruling
reviewable. Id. at 600 n. 9. More significantly, the court
decided that pursuant to 28 U.S.C. Section 2106 it was
appropriate to grant the requested relief since both parties had
presented evidence and briefed the arguments, it was not a
complex case, and there were no genuine issues of material facts.
Id. at 600. The court concluded, "It would be a waste of
judicial resources to remand this case for trial." Id.

In addition, it is clear that when an appeal of a denial of 
summary judgment is raised concurrently with an appeal of a grant 
of summary judgment for the other party, the appellate court has 
jurisdiction to review the propriety of the denial of summary 
judgment. Nazay, 949 F.2d at 1328. 5ee also Jonathan's Landing, 
Inc. V. Townsend, 960 F.2d 1538 (11th Cir. 1992); Weber v. Dell, 
804 F.2d 796 (2d Cir. 1986). Where the facts are uncontroverted.

40



the court is free to enter judgment for the appellant. Nazay,

949 F.2d at 1328.
In the instant case, the plaintiff's motion for partial 

summary judgment was thoroughly briefed and argued to the court 
below. Additionally, the parties had every opportunity to 
develop the record on the Monell considerations. The plaintiff 
chose to do so and submitted depositions and General Order 5-74. 
The defendants, however, chose not to submit any documentary 
evidence disputing that of the plaintiff. Nor did the defendants 
point to relevant evidence already existing in the record. All 
the defendants submitted was incorrect legal argument, and has 
previously been proven, that argument was insufficient to support 
the summary judgment.

In a preceding portion of this brief, the plaintiff has 
argued that there existed genuine issues of material fact 
sufficient under Fed.R.Civ.P. 56(c) which should have thwarted 
the grant of summary judgment for the defendants. However, the 
plaintiff did not concede and now affirmatively contends that the 
record is without dispute as to the existence of the Monell 
policy at the time of the death. There is no need for further 
development, and the case is ripe for adjudication.

In the instant case, judicial economy may well already be a 
hopeless goal. This litigation is seventeen years old. However, 
the law permits this Court to terminate the endless litigation on 
liability in the instant case at this point. There is nothing 
more to be gained by a remand. The parties have thoroughly

41



briefed the issue in need of decision. They have had every 
opportunity to present their proof. Only the plaintiff submitted 
substantive evidence, and the defendants have not presented any 
evidence sufficient to create a dispute. Nothing else in the 
record indicates that any genuine issue of fact exists.

Pursuant to the above cited authority, this plaintiff 
requests that the court reverse the grant of summary judgment for 
the defendants in this case and enter judgment for him on the 
issue of liability only just as requested in the motion for 
partial summary judgment. The court is then requested to remand 
to the district court only on the issue of damages.

CONCLUSION
It is more than evident that the district court in the 

instant case granted summary judgment to the defendants in error. 
Because the Supreme Court had already determined that the Garner 
rule applied to the Garner litigants, this district court was not 
free to rely on Carter v. Chattanooga, supra, effectively to 
decide otherwise. The widely accepted doctrine of "law of the 
case" precludes any revisitation of this issue in this case 
notwithstanding the Carter decision. Further, the Carter 
decision's analysis of the Chevron Oil factors has been dated by 
the Supreme Court's decision in James B. Beam Distilling Co. v. 
Georgia, supra, and cannot be considered controlling of the

42



instant dispute. Therefore, it is incumbent upon this Court to 
reverse the grant of summary judgment to the defendants.

Additionally, the grant of summary judgment is reversible 
error in light of the evidence of record that Edward Eugene 
Garner was killed because of a policy of the City of Memphis and 
Memphis Police Department as defined in Monel1.

For these reasons, the plaintiff request that this Honorable 
Court reverse the judgment of the district court, enter judgment 
in favor of the plaintiff on the issue of liability, and remand 
to the district court for a determination on damages.

Repectfully submitted.

WALT
Attorney for the 
Plaintiff/Appellant 
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(901)575-8702

CLYDE/MURPHY _
NAACP Legal Defense Fund< 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212)219-1900

ANNE BROWNLEE GULLICK 
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(901)575-8702

43



CERTIFICATE OF SERVICE
I hereby certify that two copies of the Brief of the 

Appellant was mailed by United States Mail to Henry L. Klein, 
Attorney for Defendants-Appellees, Apperson, Crump, 45 Second 
Street, Suite 2110, One Commerce Square, Memphis, TN 38103^

BAILEY, JR.
Attorney for Plaintiff/Appellant

44



UNTIED STA TE S CO U RT OF APPEALS 
FOR THE SECTH CIRCUIT

Case • 92-6196
Case Capcioa:

CLEAMTEE GARNER,
Father and next of kin of 
EDWARD EUGENE GARNER, 
a deceased minor.

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE

.APPELLANT’S/.APPELLEE’S DESIGNATION 
OF .APPENDIX CONTENTS

Appellane/appeilee. pursuant to Sixth Circuit Rule 11(b), hereby designates the following filings in the district 
court 3 record as items to be included in the joint appendix;

DESCRIPTION OF ENTRY DATE , RECORD
ENTRY NO

Docket Sheet 9/9/92 n/a
Complaint 4/8/75 1
Defendants' Answer 8/18/75 8
Memorandum Opinion from 8/76 
Bench Trial 9/26/76 53
Order dismissing case after 

- first remand 2/29/80 77
Order on reconsideration of 
2/29/80 Order 7/8/81 79
Plaintiff's motion for partial 6/23/86 86



d e s c r i p t i o n  o f  e n t r y D A T E R E C O R D  
E N T R Y  v n. Defendant's response to

D l a i n t i f f ' s  motion for p.q T 1>\ 8 / 8 6 88  !
Defendant’s supplemental response 8 f2:̂  / 8 6

not numbered on i docket shppt
Order denying partial summary 

— uidpmfint and gram- -jiirlfT 6 / 3 0 / 9 2 9 0

Judgment granting summary judgmeni 7 / 8 / 9 2 91

Notice of Appeal I 8 / A / 9 2 9 2  i

Notice of Appeal II
8 / 7 / 9 2 9 3  !

Exhibit 1 , Plaintiff'sMotion for P . q . T ___________________ 6 / 2 3 / 8 6 8 6  !

•
D E S C R IP T IO N  O F  

P R O C E E D IN G  O R  TESTIM O fSTY
D A T E t r .a_\s c r i p t  P a g e s  j

A.NT) V O U A f F  1

Respectfully submitted.

NOTE; Appendix designation to be included in briefs. 

6CA-108



DESCRIPTION OF I Qa TE 
PROCEEDING OR TESTIMONY ! TR.AN3CRPT PAGES

T estim ony o f  E lton  Hymon 8 /4 /7 6 Volume V ., pages 608 _ ' I

11
i11

i1
• 1

1

1

NOTE; Appendix denotation co be included in brieia. 

3CA-108

Respectful submitted.