Motion to Affirm or Dismiss and Brief in Opposition

    Nos. 83-1035 
83-1070

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1983

THE STATE OF TENNESSEE,
Appellant, and

MEMPHIS POLICE DEPARTMENT; CITY OF MEMPHIS, TENNESSEE,
Petitioners,

V .

CLEAMTEE OARNER, as father and next of kin of 
Edward Eugene Garner, a deceased minor,

Respondent-Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit in No. 83-1035

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit in No. 83-1070

MOTION TO AFFIRM OR DISMISS 
in No. 83-1035 and
BRIEF IN OPPOSITION 

in No. 83-1070

Respondent-appellee, CLEAMTEE GARNER, respectfully 
submits that his motion to affirm the judgment below or 
dismiss the appeal in No. 83-1035 should be granted and that 
the petition for a writ of certiorari in No. 83-1070 should be 
denied.

OPINIONS BELOW
The decision of the United States Court of Appeals for 

the Sixth Circuit, rendered on June 16, 1983, is reported as 
Garner v. Memphis Police Dept., 712 F .2d 240 (6th Cir. 1983). 
Rehearing was denied on September 26, 1983; this order is



notea at 710 F .2d at 240. The Sixth Circuit's prior opinion
* /is reported at 600 F.2d 52 (6th Cir. 1979).—

STATEMEFT OF THE CASE
Fifteen—year-old Edward Eugene Garner was shot and 

killed by a Memphis police officer on the night of October 
3, 1974. On April 8, 1975, Cleamtee Garner filed "an action 
for damages brought pursuant to 42 U.S.C. 1981, 1983,
1985, 1986 and 1988 to redress the deprivations of the rights, 
privileges and immunities or Plaintiff's deceased son, Edward 
Eugene Garner, secured by the Fourth, Fifth, Sixth, Eighth 
and Fourteenth Amendments to the United States Constitution." 
Complaint If 2; App. 6,—^ On August 18, 1975, the district 
court entered an order dismissing the City of Memphis and 
the Memphis Police Department as defendants under 42 U.S.C.
§ 1983. Trial was held on August 2 through 4, 1976. On 
September 29, 1976, the district court entered a memorandum 
opinion rendering judgment for the defendants.

Plaintiff appealed. The court of appeals. Chief 
Judge Edwards and Judges Merritt and Lively, reversed ana 
remanaed the case for reconsideration in light of Moneli v. 
Department of Social Services, 436 U.S. 658 (1978) . One of 
the questions that it listed for consideration on remand was 
whether "a municipality's use of deadly force under Tennessee 
law to capture allegedly nondangerous felons fleeing from

*/ Citations to the opinion below are to the appendix to 
the petition for a writ of certiorari in No. 83-1070 and
are designated as A. Citations to the record below
are to the Joint Appendix in the Sixth Circuit and are 
designated as App. ____.
1/ The suggestion by the state, appellant in No. 83—1035, 
that the fourth amendment had not been raised, see Jurisdictional 
Statement at 5, is incorrect. Indeea, the district court 
noted in its initial opinion that: "Plaintiff cited specific­
ally in this regard the Fourth Amendment right to be free of 
unreasonable seizure of the body ... incorporated into the 
due process clause of the Fourteenth Amendment and made 
applicable to the States." A. 2. See also Complaint If 19,
App. 11-12; Memorandum Opinion of Feb. 29, 1980, A. 21.

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nonviolent crimes [is] constitutionally permissible under 
the fourth, sixth, eighth and fourteenth amendments?" Garner 
V .  Memphis Police Dept., 600 F .2d 52, 55 (6th Cir. 1979); A.
18. It also remanded for consideration of the question of 
Memphis's "policy or custom" for purposes of liability under 
Monell. Id., 600 F.2d at 55; A. 19.

On remand, the district court denied plaintiff the 
opportunity to introduce additional evidence on the question 
of the Memphis "policy or custom," to submit an offer of 
proof, or to submit a brief on the merits; it entered judgment 
for the defendants. A. 20. After consideration of plaintiff's 
motion to reconsider, the court allowed the submission of a 
brief and offer of proof and then again entered judgment for 
the defendants. A. 31. The court of appeals. Chief Judge 
Edwards and Judges Merritt and Keith, reversed. It held 
that the Tennessee statute, Tenn. Code Ann. § 40-808 (1975), 
violated the fourth amendment and the due process clause of 
the fourteenth amendment "because it authorizes the unnecessarily 
severe and excessive, and therefore unreasonable," use of 
deadly force to effect the "arrest" of unarmed, nonviolent, 
fleeing felony suspects such as plaintiff's son. 710 F .2d 
at 241; A. 40-41. Rehearing and rehearing en banc were 
denied on September 26, 1983. 710 F .2d at 240; A. 58.

STATEMENT OF FACTS
A. The Facts Regarding the Shooting

At the time of his death, Edward Eugene Garner was 
fifteen-years-old. He was an obvious juvenile; slender of 
build, he weighed between 85 and 100 pounds and stood only 
five feet and four inches high. App. 78 and 290-91. He

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had a minor juvenile record. At the age of 12, he and two 
other boys illegally enterea the house in whose yard they 
were playing. App. 686 and 689. In July of 1974, his family 
called the police when they discovered that he had taken a 
jar of pennies from a neighbor's house.— He was placed on 
probation for one year. App. 88-89 and 689. There was also 
a prior arrest for a curfew violation, but that was resolved 
when it was explained that young Garner was working at a 
local store and under supervision at the time. App. 84 and 
693-94.

On the night of October 3, 1974, Officers Hymon and 
Wright responded to a burglary in progress call at 737 
Vollentine in Memphis,. When they arrived at that address, a 
woman was standing in the door pointing at the house next 
door. Upon inquiry by Officer Hymon, she said that "she had 
heard some glass breaking or something, and she knew that 
somebody was breaking in." App. 207.—^ Hymon went around 
the near side of the house, his revolver drawn, while Wright 
went around the far side. Hymon reached the backyard first, 
where he heard a door slam and saw someone run from the back 
of the house. He locatea young Garner with his flashlight:

2/ The neighbor declined to call the police about this 
minor incident. It was the family that insisted that the 
police be called. App. 88-89.
3/ Hymon testified that: "Roughly I recall her saying,
'They are breaking inside....'" App. 207. He qualified 
that testimony when He was asked: "Did you understand her
to be saying that there were several people inside the house? 
He responded: "I don't really think she knew. I think that
she —  I think that she might have mentionea that she had 
heard some glass breaking or something, and she knew that 
somebody was breaking in. I don't think that the plural 
form had any indication of her knowing." Id.

This version was corroborated by his partner. Officer 
Wright. He testified that: "I was leaning over in the
street like this to hear what she was saying through the 
open door. She said, 'Somebody is breaking in there right 
now.'" App. 707.

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Garner was crouched next to a six foot cyclone fence at 
the back of the yard about 30 to 40 feet away from Hymon.
Hymon was able to see one or both of Garner's hands; he 
concluded that Garner was not armed. App. 239, 246-47, 658, 
and 677.-^

While young Garner crouched in Hymon's flashlight 
beam, Hymon identified himself and ordered Garner to halt. 
Garner paused a few moments during which Hymon made no attempt 
to advance,-^ but continued to aim his revolver at Garner. 
Garner bolted, attempting to jump the fence. Hymon fired, 
striking young Garner in the head. Garner fell, draped over 
the fence. He did not die immediately; when the paramedics 
arrived on the scene "he was holding his head and just 
thrashing about on the ground," App. 141, "hollering, you 
know, from the pain." App. 137. Edward Eugene Garner died 
on the operating table. App. 153.

4/ At his deposition, introduced into evidence, Hymon 
testified that: "I am reasonably sure that the individual
was not armed___ " App. 246. On direct examination by the
city at trial, Hymon was asked; "Did you know positively 
whether or not he was armed?" He replied: "I assumed he 
wasn't...." App. 658.

Hymon also testified that Garner did not act as an 
armed suspect would, neither firing a weapon not throwing it 
down. App. 246. He testified that: I figured, well, if
he is armed I'm standing out in the light and all of the 
light is on me the[n] I assume he would have made some kind 
of attempt to defend himself...." App. 658. That officer 
Hymon operated on the assumption that young Garner was 
unarmed is further corroborated by his testimony that he 
"definitely" would have warned his partner if he had had any 
question whether Garner was armed, App. 246-47, and that: "I 
would have taken more cover than what I had."
5/ Hymon testified that he did no more than take "a couple 
of steps," App. 651, "which wasn't, you know, far enough to 
make a difference." App. 256. Officer Wright testified 
that when he rounded the corner of the house after the shot, 
Hymon "was standing still...." App. 720. According to 
Wright, it took only "three or four seconds" for Hymon to 
reach Garner after the shot. Id.

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There was no one home when the house was broken 
into. After the shooting, the police found that young 
Garner had ten dollars and a coin purse taken from the 
house. App. 737. The owner of the house testified that the 
only items missing were a coin purse containing ten dollars 
and a ring belonging to his wife, but that the ring was 
never found. The ten dollars were returned. App. 169.-'^

Plaintiff called two expert witnesses —  Chief Detective 
Dan Jones of the Shelby County Sheriff's Department and 
Inspector Eugene Barksdale, former commander of the personal 
crimes bureau of the Memphis Police Department —  to testify 
about the reasonableness of Hymen's use of deadly force 
under the circumstances. As the district court found: "The
substance of such testimony was to the effect that Hymon 
should first have exhausted reasonable alternatives such as 
giving chase and determining whether he had a reasonable 
opportunity to apprehend him in some other fashion before 
firing his weapon." A. 8. Both Jones and Barksdale testified 
that Hymon "should have tried to apprehend him," App. 278 
and 375; Barksdale added that "in all probability he could 
have apprehended the subject without having to shoot him.... 
App. 373.
B . The Memphis Policy or Custom; Liberal Use of Deadly

Force
Because of the district court's decision not to allow 

further hearings on remand, the record on the question of 
"policy or custom" is a hybrid. It consists of the evidence 
adduced at the original trial and the offer of proof tendered 
on remand.

6/ The owner also testified that: "The first -- I had some
old coins in there and when they did let me in, I went to 
them. They were still there." 1^.

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At trial, plaintiff called Captain Coletta, who was 
responsible for recruit training and the ammunition policies 
of the Memphis Police Department. He testified that the 
department used the film "Shoot - Don't Shoot," which presents 
only armed fleeing felons in its situational illustrations 
of the fleeing felon rule, App. 329-32; that there was no 
training in alternatives that should be exhausted before 
resorting to aeadly force to stop unarmed fleeing felony 
suspects, App. 340; that the department's firearms manual 
details firearms techniques, but not techniques to avoid the 
need for the use of weapons, App. 344-45; and that the use 
of deadly force to stop fleeing felony suspects is left to 
the individual officer's aiscretion: recruits are simply 
told that they must live with themselves if they kill a 
person. App. 326 and 345. Accord App. 195-96, 901, 956, 
and 1796.

According to Captain Coletta, the Memphis police have 
always used a .38 caliber Smith and Wesson. In the years 
immeaiately preceding the Garner shooting, Memphis twice 
upgraded its ammunition to bullets with greater velocity, 
accuracy, and predicted wounding power. App. 413-16, 425- 
27, and 447. The bullet that was finally selected was the 
125 grain, semi-jacketed, hollow-point Remington. Both 
Coletta ana the Shelby County meaical examiner testified 
that this bullet is a "dum-dum" bullet banned in international 
use by the Hague Convention of 1899 because it is designed 
to produce more grievous wounds. App. 487-88 and 572. This 
is the bullet that killed young Garner.

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Finally, Coletta testified that Memphis recruits are 
taught to aim at the torso, or "center mass," where vital
organs are more likely to be hit. App. 357-58. See_also
App. 1597 and 1807-08. In a prior case, the district court 
found that Memphis police officers "were trained whenever 
they use their firearms to 'shoot to kill.’" Wiley v. Memphis 
Police Dept., 548 F .2d 1247, 1250 (6th Cir. 1977).

On remand, plaintiff assembled an extensive offer of 
proof on the question of the Memphis policy or custom.
App. 762-1891. Organized in fifteen parts, it contains 
affidavits of expert witnesses who would have been called to 
testify, App. 765-97; excerpts from prior federal cases 
against the Memphis Police Department that illuminate Memphis s 
actual policies and customs regarding the use of deadly 
force, App. 798-1019, 1409—57, 1460—69, 1477—1601, and 1614 
1891; excerpts from the report of the Tennessee Advisory 
Committee to the U.S. Commission on Civil Rights, which was 
based on hearings on civil rights abuses by the Memphis 
Police Department, App. 1050-58; the deadly force policies 
of 44 major municipalities, App. 1108-1368; the training 
materials tor the New York Police Department, App. 1369- 
140b; and an excerpt from an LEAA publication on aeadly 
force that details police training procedures used in other 
cities but not in Memphis. App. 1602-13.

It is beyond the scope of this submission to summarize 
these materials in depth. In general, these materials in­
dicate the deficiencies in the Memphis policies and customs 
concerning the use of deadly force in rerms of written policy, 
actual practice, training, and discipline. For example, one

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of plaintiff's experts was William R. Bracey who, at the 
time of his affidavit, was Chief of Patrol of the New York 
Police Department with supervisory authority over all 17,500 
uniformed personnel of the New York Police Department. He 
would have testified: that guidelines and committed enforce­
ment of those guidelines by the police hierarchy will lead 
to reductions in the use of unnecessary deadly force; that 
New York has reduced firearms discharges by 50% by these 
means; that the result of this reduction has been the increased 
safety of New York Police Department officers with fewer 
assaults on officers and fewer deaths; that law enforcement 
has been unhampered; that training, including training in 
alternatives to minimize the need for use of deadly force, 
and discipline are the keys to reducing unnecessary deadly 
force; that shooting unarmed fleeing felons is related to 
the officer's subjective notions of punishment; and that the 
Memphis policies of shooting fleeing property crime suspects, 
use of "dum-dum" bullets, and training and discipline were 
all deficient. App. 765-76.

Similarly, the Memphis-specific materials show a policy 
or custom that can only be characterized as a liberal use of 
deadly force policy. The Memphis policy has been one of 
ready resort to deadly force which, as in this case, has 
served as a disincentive to the exhaustion of reasonable 
alternatives by the police officer. See, e.g., App. 798-818 
(Preliminary Report of Jan. 18, 1972); App. 819-74 (Deposition 
of Officer Fredrick). This has been reinforced both by the 
public statements of Memphis mayors and police directors, 
see App. 1632 and 1825-28, and the operation of the Memphis

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Police Department disciplinary system: No Memphis police
otficer has ever been disciplined for the use oi his gun,
App. 547 and 1858; the civilian complaint procedures are

7/designed to deter complaints, App. 1050-58.—
C . The Memphis Policy or Custom: Race Discrimination

The materials contained in the offer of proof strongly 
support a tinaing that the Memphis deadly force policy runs 
afoul of the Constitution in another fundamental way not 
discussed by the court of appeals: It is a policy that
discriminates on the basis of race.

The offer of proof contains the raw data concerning 
all arrests in Memphis between 1963 and 1974, App. 1409-57 
and 1767-68; aata on all shootings of fleeing property crime 
suspects between 1969 and 1974, App. 1460-69; data on all 
those killed by Memphis police officers between 1969 and 
1976, App. 1764-67 and 1071;-^ prior analysis of this data 
by a statistician, App. 1769-77, and his testimony at an 
earlier trial regarding this analysis, App. 1559-62 and 
1589-92; historical data regarding race discrimination by 
the Memphis Police Department from 1874 through the mid­
seventies, including the deposition testimony of the mayor 
and police director supporting this conclusion, App. 908- 
910, 928-32, 972-74, 1539-40, 1571-75, 1646-56, 1677-78, 
lb90, and 1828-29; and the affidavit of plaintiff's expert.

7/ The two salient procedures that deter complaints are 
the rule that all complainants must take a polygraph while 
no officer is ever required to and that the officer against 
whom a charge is made must immediately be notifiea or the 
complainant's name and address. App. 1050-58.
8/ All of the foregoing data was collected and provided by 
the Memphis Police Department as defendant in Wiley v. Memphis 
Police Dept., Civ. Action No. C-73-8 (W.D. Tenn. June 30, 
1975), atf'd, 548 F.2d 1247 (6th Cir. 1977).

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Dr. James J. Fyfe,-'^ which analyzed in detail the arrest and 
shooting data contained in the offer of proof. App. 787-97.

On the use of deadly force, the data reveal that 
there are significant disparities based on the race of the 
shooting victim/suspect and that virtually all of this dis­
parity occurs as the result of the Memphis policy that allows 
officers to exercise their discretion to shoot fleeing property 
crime suspects. Between 1969 and 1976, blacks constituted 
70.6% of those arrested tor property crimes in Memphis but 
88.4% of the property crime suspects shot at by the Memphis 
police. In contrast, the percentage of black violent crime 
suspects shot at by Memphis police was closely proportionate 
to their percentage in the violent crime arrest population: 
85.4% and 83.1%, respectively. App. 1773.

Dr. Fyfe reviewed this data and concluded that con­
trolling for differential racial representation in the arrest 
population, black property crime suspects were more than 
twice as likely to be shot at than whites (4.33 per 1000 
black property crime arrests; 1.81 per 1000 property crime 
arrests), four times more likely to be wounded (.586 per 
1000 blacks; .1113 per 1000 whites), and 40% more likely to 
be killed (.63 per 1000 blacks; .45 per 1000 whites). App.
792. Comparison of shootings by Memphis Police officers 
while controlling for race of the shooting victim and the 
nature of the incident provided similarly striking data.
His analysis of the shooting incidents between 1969 and 1976 
described by the Memphis Police Department to the Civil

9/ Dr. Fyfe is a former New York Police Department lieutenant 
and training officer. He designed a firearms trainings 
program for the New York Police Department in which over 
20,000 officers have participated. His aoctorai thesis 
concerned the use of deadly force by New York Police Depart­
ment officers. He is an associate professor at The American 
University in Washington, D.C., and has served as a consultant 
on the deadly force issue for the United States Department 
of Justice and the Civil Rights Commission. App. 788-89.
He also teaches courses at the F.B.I. National Academy at 
Quantico, Va.

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Rights Commission showed a dramatic disparity between the 
situations in which whites were killed and those in which 
blacks were killed. Of the blacks shot/ 50% were unarmed and 
nonassaultive, 23.1% assaultive but not armed with a gun,
26.9% assaultive and armed with a gun. Of the whites shot, 
only one was non—assaultive (12.5%), five (62.5%) were armed 
with a gun, and the remaining two (25%) were assaultive but 
not armed with a gun.— ^ Based on this data. Dr. Fyfe con­
cluded that, during the period in question, Memphis police 
^02̂ 0 fai' more likely to shoot blacks than whites in non- 
threatening circumstances and that the great disparity in 
blacks shot by Memphis police officers is largely accounted 
for by the policy allowing the shooting of non-aangerous 
fleeing felony suspects. Between 1969 and 1976, Memphis 
police killed 2.6 unarmed, non-assaultive blacks tor each
armed, assaultive white. App. 793-94.

Plaintiff proffered this evidence having previously 
requested both additional discovery and a hearing on these 
factual questions. The district court, in its post­
reconsideration order, A. 31, rejected Dr. Fyfe's conclusions 
on the basis of several unsupportable considerations. It 
noted Dr. Fyfe's "bias," A. 34, having never seen him testify.— '̂ 
It attacked Dr. Fyfe's conclusions because, it claimed, he 
failed to "specify the actual number of blacks arrested

10/ Dr. Fyfe noted that: "These are certainly dramatic 
Qifferences, but no measure of their significance is possible 

because the only statistically significant category of 
v^hitss killed is those armed with guns. App. 794.
11/ The district court's "bias" finding was based on Dr. 
Fyfe's disagreement with the Memphis policy allowing the ^se 
of deadly force against nondangerous suspects. This "bias," 
however, is the official policy of the F.B.I. and numerous 
metropolitan police departments as disparate as New York, 
Atlanta, and Charlotte, North Carolina. See App. 1113,
1200, 1293, and 1869.

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,nd/or convicted tor alleged 'property crimes' as compared 
to whites curing this period." A. 32. But, as discussed 
above, Dr. Fyfe's analysis specifically "controls for dif­
ferential involvement among the races in property crime...," 
App. 792; indeed, the data on which Dr. Fyfe relied was 
included in the offer of proof ana provided the actual number 
or both white and black property crime arrests together with 
the raw data of all arrests. App. 1409-57 and 1767-68. The 
district court questioned the delineation of "'property 
crime' in the Fyfe definition." A. 32. But the delineation 
between property crimes and violent crimes that Dr. Fyfe 
employed was that made by the Memphis Police Department 
and included with the arrest statistics. App. 1559 and
1767-68. In numerous similar ways, the district court either

12/misapprehended or deliberately distorted Dr. Fyfe s
proffered testimony.

12/ For example, in questioning Dr. Fyfe's observation that 
the incidence of use of deadly force in property crime arrests 
in Memphis tar exceedea that in New York, the district court 
noted that: "Professor Fyfe admitted his comparison was not
'precise' in respect to 'property crimes' comparison." A. 332a way3 ^ ^  A l l  A  ^  V. w  — J  —  —    - - t

n. 1. But Dr. Fyfe accounted for this imprecision in 
that favored Memphis. His "admission" was that:

More than half (50.7 percent) of the police 
shootings in Memphis during 1969-1974 involved shoot­
ing at property crime suspects. The comparable 
percentage in 1971-1976 in New York was no more 
than 11.8 percent. This comparison is not precise 
because the New York City figure includes all shoot­
ings to "prevent or terminate crimes." Thus, it 
includes shootings precipitated by both property 
crimes and crimes of violence. My estimate of the 
percentage of New York City police shootings which 
involved property crime suspects only is four percent.

App. 791.
Similarly, in arguing that Dr. Fyfe failed to control 

for disparate racial involvement in the underlying felonies, 
the district court alleged that Dr. Fyfe "concedes elsewhere 
that there is also 'differential racial involvement in police 
shootings.'" A. 32. What Dr. Fyfe said, however, is that; 
"In New York City, differential racial involvement in police 
shootings also exists, but [unlike Memphis] it is almost 
totally accounted for by differential racial involvement in 
the types of activities likely to precipitate shootings."
App. 792.

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Because the court of appeals held that the Tennessee 
fleeing felon statute violates the fourth amendment and the 
due process clause, it did not reach the race discrimination 
issue.

REASONS FOR DENYING REVIEW
I. THE COURT OF APPEALS CORRECTLY HELD THAT A 

STATE STATUTE THAT CONFERS UNLIMITED DIS­
CRETION ON POLICE OFFICERS TO SHOOT NON- 
DANGEROUS, FLEEING FELONY SUSPECTS WHOM THEY 
REASONABLY ASSUME TO BE UNARMED VIOLATES 
ESTABLISHED CONSTITUTIONAL PRINCIPLES_______
The court of appeals applied established constitu­

tional principles to review a state statute that authorizes 
police officers to use deadly force against non-dangerous, 
fleeing felony suspects. It held that the fourth amendment 
applies and that it requires reasonable methods of capturing 
suspects. 710 F.2d at 243; A. 44. As at common law —  when 
all felonies were capital offenses, the fleeing felon doctrine 
authorized the use of deadly force to prevenr the felon's 
escape —  the court of appeals held that the fourth amendment 
allows only the reasonable, proportional use of deadly force 
in the arrest context: i.e., "the police response must
relate to the gravity and need...." Bivens v. Six Unknown 
Agents, 403 U.S. 388, 419 (1971) (Burger, C.J., dissenting). 
Since the use of deadly force against unarmed, nonviolent 
felony suspects is excessive, it violates the fourth amendment 
710 F.2d at 246; A. 51.

The court of appeals also held that the use of deadly 
force against unarmed, nonviolent felony suspects violates 
due process. The due process clause explicitly protects the 
right to life, U.S. Constitution Amend. XIV,  ̂ i; Williams 
V. Kelly, 624 F.2d 695, 697 (5th Cir. 1980), a right so

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axiomatic that it is an understatement to characterize it as 
"rundamental." Compare Yick Wo v. Hopkins, Ufa U.S. 356,
370 (1886) ("the fundamental rights to life, liberty and the 
pursuit of happiness"), and Johnson v. Zerbst, 304 U.S. 458,
462 (1938) ("fundamental human rights of life and liberty"), 
with Trop v. Dulles, 356 U.S. 86, 102 (1958) ("the right to 
have rights"). The Tennessee statute falls under the due 
process clause because the state interests cannot support 
the taking of life in the context of a nonviolent, nondangerous 
felony. 710 F .2d at 246-47; A. 52-53.

The state and the city argue that the court of appeals 
erred because the fourth amendment does no more than set the 
minimum standard —  i.e., probable cause -- for initiating 
an arrest, but that it does not govern the manner of police 
action in effectuating that arrest. Jurisdictional Statement 
at 8-9; Cert. Petition at 10-11. They argue that the reliance 

by the court of appeals on the Fourth Circuit s ruling 
in Jenkins v. Averett, 424 F .2d 1228 (4th Cir. 1970), is 
misplaced because in Jenkins the officer had no probable 
cause to arrest and, thus, was not authorized to use any 
force. Jurisdictional Statement at 8; Cert. Petition at 11. 
Finally, they argue that the Court should grant review because 
the decision in this case conflicts with that of the Second 
Circuit in Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975). 
Jurisdictional Statement at 10; Cert. Petition at 10.

The state and the city are wrong on each of these 
points, and the court of appeals is correct. As we show 
below, the fourth amendment plainly applies under the prin­
ciples consistently enunciated by this Court and affirmed

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again only last Term. Moreover, the ruling below is entirely 
consistent with the decision in Jenkins and the parallel 
authority in every circuit, including the Second Circuit.

The Tennessee statute at issue, Tenn. Code Ann. § 40- 
S08, provides that;

Ir, 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.

Id. It is an arrest statute; there can be no suggestion 
that "such police conduct is outside the purview of the 
Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16 (1968). The 
fourth amendment speaks directly to: "Tie right of the people 
to be secure in their persons ... against unreasonable ... 
seizures___ " U.S. Constitution Amend. IV; Terry, 392
U. S. at 16 ("It is quite plain that the Fourth Amendment 
governs 'seizures' of the person.,.."); accord United States
V ,  Place, U.S. ____, 77 L.Ed.2d 110, 121—22 (1983);
Dunaway v. New York, 442 U.S. 200, 207 (1979); Cupp v. Murphy, 
412 U.S. 291, 294 (1973); Davis v. Mississippi, 392 U.S.
721 , 726-27 (1969) .

Moreover, the Court has long repudiated the contention 
that the fourth amendment governs only the "when" of police 
action and not the "how," Only last Term, the Court reaffirmed 
what it "observed in Terry, '[t]he manner in which the 
seizure ...[was] conducted is, of course, as vital a part of 
the inquiry as whether [it was] warranted at all.'" United 
States V .  Place, 77 L.Ed.2d at 121 (quoting Terry, 392 U.S.

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28).— ^ Place, the court went on to "examine the
agents’ conduct.,.." i^., and round it "sufficient to render
the seizure unreasonable." at 122. See Schmerber v.
California, 384 U.S, 757, 768 (1966) ("whether the means and
procedures employed ,.. respected relevant Fourth Amendment
standards of reasonableness"); Ker v. California, 374 U.S.
23, 38 (1963) (whether "the method of entering the home may
offend federal constitutional standards of reasonableness");
United States v. Calandra, 414 U.S. 338, 346 (1974) (subpoena
"'far too sweeping in its terms to be regarded as reasonable'
under the Fourth Amendment") (aicta).

In determining the reasonableness of the use of deadly
force under the fourth amendment, the court of appeals followed
exactly the mode of analysis applied by this Court in considering
other forms of police action.

Terry and its progeny rests on a balancing of the 
competing interests to determine the reasonableness 
of the type of seizure involved within the meaning 
of "the Fourth Amendment's general proscription 
against unreasonable searches and seizures." 392 
U.S. at 20. We must balance the nature and quality 
of the intrusion on the individual's Fourth Amendment 
interests against the importance of the governmental 
interests alleged to justify the intrusion.

Un ited States v. Place, 77 L.Ed.2d at 118.— ^ The court

12/ In Terry, the Court added that: "The Fourth Amendment
^oceeds as much by limitations upon the scope of governmental 
action as by imposing preconditions upon its initiation."
392 U.S, at 28-29.
13/ In fact, this mode of analysis did not originate in 
Terry; the Terry Court derived it from the decision in Camara 
V .  Municipal Court, 387 U.S. 523 (1967):

In order to assess the reasonableness of the police 
conduct as a general proposition, it is necessary 
"first to focus upon the governmental interest 
which allegedly justifies official intrusion upon 
the constitutionally protected interests of the 
private citizen," for there is "no ready test for 
determining reasonableness other than by balancing 
the need to search [or seize] against the invasion 
which the search [or seizure] entails."

Terry, 392 U.S. at 20-21 (quoting Camara, 387 U.S. at 534- 
35, 536-37).

- 1 7 -



ot appeals looked at the "nature and quality of the intrusion:" 
As an intrusion by police, the use of deadly force is "a 
method 'unique in its severity and irrevocability.'" Garner, 
710 F .2d at 243; A, 44 (quoting Gregg v. Georgia, 428 U.S.
153, 187 (1976)). It balanced this against the state's 
interests and concluded that, as was true at common law, the 
state interests are proportionate only when the underlying 
felony is a violent one or the fleeing suspect will endanger 
the physical safety of others.—  '̂ The court of appeals thus 
properly applied settled fourth amendment principles and 
correctly arrived at the decision below.

Nothing in Jenkins v. Averett, on which the court of 
appeals relied, is inconsistent with this reasoning. Nowhere 
in Jenkins did the Fourth Circuit engage in the reasoning 
suggested by the state and the city: that the shooting 
violated the fourth amendment because there was no probable 
cause to arrest. To the contrary, the Fourth Circuit never 
discussed whether the police were authorized to stop Jenkins. 
Rather, the vice it found was that "our plaintiff was subjected 
to the reckless use of excessive force." 424 F .2d at 1232 
(emphasis added).

Jenkins was premised on the principle that the fourth 
amendment protects the "inestimable right of personal 
security." ^ . , 424 F .2d at 1232 (quoting Terry v. Ohio, 392
U.S. at 8-9). Accord Florida v. Royer, 460 U.S. ____, 75
L.Ed.2d 229, (1983); Davis v. Mississippi, 394 U.S. at
726-27 ( "Nothing is more clear than that the Fourth Amendment 
was meant to prevent wholesale intrusions upon the personal

14/ The city argues that the court of appeals ”fail[ed] to 
recognize the valid state interests encompassed by the 
statute...." Cert. Petition at 11. This is false. The 
scope ot the state interests in the use of deadly force were 
fully briefed in the court below. Brief tor Appellees at 
18; Brief for Appellant at 21-28, 33-35. They will not be 
recapitulated here because of the necessary length of such a 
discussion. Suffice it to note that the question was fully 
considered by the court below; it simply decided the issue 
adverse to the city.

- 1 8 -



security of our citizenry...."). As such, the fourth amendment 
"shield covers the individual's physical integrity." Jenkins, 
424 F.2d at 232. See Schmerber v. California 384 U.S. 767 
("we are dealing with intrusions into the human body").
Every circuit has concurred in this conclusion, although 
most now follow the Second Circuit's lead as articulated by 
Judge Friendly in Johnson v. Click, 481 F .2d 1028 (2d Cir.), 
cert, denied, 414 U.S. 1033 (1973, that "quite apart from 
any 'specific' of the Bill of Rights, application of undue 
force by law enforcement officers deprives a suspect of 
liberty without due process of law." at 1032; accord
Landriqan v. City of Warwick, 628 F .2d 736, 741-42 (1st Cir. 
1980) (citing United States v. Villarin Gerena, 533 F .2d 
723, 728 (1st Cir. 1977) (fourth and fifth amendments));
Howell V .  Cataldi, 4 64 F .2d 272 (3rd Cir. 1972); United 
States V .  Stokes, 506, 771, 775-76 (5th Cir. 1975); Tefft
V . Seward 689 F.2d 637, 639 n. 1 (6th Cir. 1982); Byrd v.
Brishke, 466 F .2d 6 (7th Cir. 1972); Herrera v. Valentine, 
653 F.2d 1220, 1229 (8th Cir. 1981); Gregory v. Thompson,
500 F.2d 59 (9th Cir. 1974); Morgan v. Labiak, 368 F .2d 338 
(10th Cir. 1966); Carter v. Carlson, 447 F.2d 358 (D.C. Cir. 
1971), rev'd on other grounds, 409 U.S. 418 (1973). The 
court of appeals simply applied the well established prin­
ciple that excessive force by law enforcement personnel 
violates the fourth amendment and the due process clause to

- 1 9 -



the facts of this case.— ^
The state and city's argument that the decision below 

is in conflict with the Second Circuit opinion in Jones v. 
Marshall is simply wrong. Jones was decided before Monel1. 
Jones decided only the question of the privilege the police 
officer could invoke under § 1983, not the substantive 
constitutional question under the fourteenth amendment.

15/ In the courts below, respondent-appellee advanced 
another, established, due process principle that supports 
the judgment. The due process clause provides "protection 
against punishment without due process of law...." Bell v. 
Wolfish, 441 U.S. 520, 535 (1979(; accord Ingraham v. 
Wright, 430 U.S. 651, 671-72 n. 40 (1977); Kennedy v. 
Mendoza-Martinez, 372 U.S. 144, 165-67 (1963); Screws
United States, 325 U.S. 91, 106 (1945); Krause_______

572 (6th Cir. 1977). Application of the 
criteria, cited in Wolfish as "useful 

S

Rhodes
570 F.2d 563, 
Mendoza-Martinez

seven
guideposts," 441 U.S. at 538, establishes that the shooting 
of nondangerous, fleeing felony suspects "amounts to punish­
ment," id. at 535, in violation of the due process clause. 
Sherman, Execution Without Trial: Police Homicide and the 
Constitution, 33 Vand. L. Rev. 71 (1980). This conclusion 
is particularly supported by the history of the common law 
fleeing felony doctrine, which was a direct outgrowth of the 
application of capital punishment and, in its earliest in­
carnations, summary punishment for all felonies. Sherman, 
supra, at 81; see also 4 W. Blackstone, Commentaries 98 
(Garland ed. 1978); United States v. Clark, 31
(C.C.E.D.Mich. 1887); Bohlen & Schulman, ________________
Without a Warrant, 75 U. Pa. L. Rev. 485, 495 (1927); Note, 
Legalized Murder of a Fleeing Felon, 15 Va. L. Rev. 582, 583

_ Fed. 710,
Arrest With and

713

1929); T. Taylor, ____________
28 (1968); R. Perkins, Criminal 
The Use of Deadly Force in Arizona

495 
Va. L

Two Studies in Constitutional Interpretation
Law 10 (2d ed. 1969); Note, 

by Police Officers, 1972
L. & Soc. Order 481, 482 Comment, Deadly Force to Arrest; 
Triggering Constitutional Review, 11 Harv. Civ. Rights &
Civ. Lib. L. Rev. 361, 365 (1974). In addition, the Memphis 
policy promotes one of "the traditional aims of punishment." 
Mendoza-Martinez, 372 U.S. at 168-69. The record establishes 
"that one of the principal purposes of Memphis's policy ... 
is to deter criminal conduct." Wiley, Civ. Action No. C-73- 
8, Slip op. at 13; see App. 962, 1832-33 and 1848-50. Neither 
of the courts below, however, addressed this aspect of the 
due process issue.

- 2 0 -



Id., 528 F.2d at 137, 138, 140. 142. Indeed, it expressly 
rejected the view of the defendant in that case that the 
Connecticut statute was constitutional and that no further 
analysis was necessary. I^. at 137. Rather, it noted that 
Johnson v. Click provides the controlling constitutional 
principle, i^. at 139, declined to assess the balance of 
the competing interests, 3t 142, and instead incorporated
the Connecticut rule of the officer's privilege as a defense 
to the § 1983 action. Id. at 138, 142. Thus, the opinion 
in Jones is in striking conformity with the rulings of the 
court of appeals in this case. On the first appeal, the 
Sixth Circuit held that the officer was entitled to invoke 
the qualified privilege of good faith reliance on state law. 
Garner, 600 F .2d at 54; A. 16-17. On the second appeal, it 
reached the constitutional question not decided in Jones and 
held the state statute unconstitutional. 710 F .2d at 246- 
47; A. 51-A. 53.

The city makes one last argument against the balance 
of competing interests struck by the court of appeals.
Without any supporting authority, it asserts that "the 
nighttime breaking and entering a dwelling is a crime so 
frequently associated with the commission of violence...." 
Cert. Petition at 13. But there is no evidence in the record 
to support this bald assertion.— ^ Nor has the Tennessee 
legislature ever made such a tactual determination. The

1_6/ This argument is, in fact, inconsistent with the city's 
position in the prior cases and that expressed in the record 
in this case. The mayor of Memphis has on several occasions 
testified under oath regarding the reasons for the Memphis 
policy allowing the officer discretion to shoot unarmed 
burlgary suspects. On those occasions, he has testified 
that the policy is justified not because burglars commit 
violence in connections with that crime, but because they 
graduate to commit subsequent crimes of violence. App. 961; 
App. 1832-34.

- 2 1 -



statute at issue in this case was passed in 1858 and merely 
codified the then existing common law, Tenn. Code Ann.
§ 40-808; the Tennessee legislature has never heid hearings 
on this question.

The available evidence is to the contrary. As the 
Court has observed,

competent observers have concluded that there is 
no basis in experience for the notion that death 
so frequently occurs in the course of a felony 
for which killing is not an essential ingredient.... 
This conclusion was based on three comparisons of 
robbery statistics, each of which showea that only 
about one-half of one percent of robberies resulted 
in homicide. The most recent national crime statistics 
strongly support this conclusion.

Enmund v. Florida, U . S . 73 L.Ed.2d 1140, 1153
(1982) (citations and footnotes omitted). In light of the 
fact that this is so for robbery, a crime that by definition 
involves the use of force or the threatened use of force, 
the city's assertion is highly questionable.

In sum, the court of appeals applied well establishea 
fourth amendment principles as enunciated by this Court. It 
applied principles under the fourth amendment and the due 
process clause that are consistent with the holdings of 
every circuit in the country. The oecision below is 
correct, and review by this Court is unnecessary.

- 2 2 -



II. THL STANDARD ADOPTED BY THE COURT OF APPEALS 
IS WORKABLE AND, AS A PRACTICAL MATTER, WILL 
NOT INTERFERE WITH LAW ENFORCEMENT__________
The court of appeals has adopted a standard under 

the Fourth Ainendment that is clear, workable, and not unduly re­
strictive of law enforcement. Before an officer uses deadly force 
to stop a fleeing felony suspect, he or she must have "an objec­
tive, reasonable basis in fact to believe that the fellow is dan­
gerous or has committed a violent crime." 710 F .2d at 246; A. 52.

ITie actual impact of this ruling on the day-to-day 
activities of police officers around the nation will be minimal, 
the state's assertions to the contrary notwithstanding. See
Jurisdictional Statement at 7. WTiile some number of states will

17/retain the common law rule, comparatively few police

17/ The state cites Ringel, Searches and Seizures, Arrests 
and Confessions, § 23.7 at 23-29 (2d ed. 1902), for the proposi­
tion that there are 24 states with statutes adopting the common 
law rule. Ringel, however, does not provide a listing of states 
nor authorities. An earlier article lists 24 states with 
statutes that codify the common law, Conutient, Deadly Force to 
Arrest; Triggering Constitutional Review, 11 Harv. Civ. Rights - 
Civ. L.L. Rev. 360, 368 n.20 (1976), but that listing is incorrect. 
At least three of those states have am.ended their statutes. See 
Alaska Stat. § 11.81.370; Iowa Code § 804.8, Schumann v. City of 
St. Paul, 268 N.W.2d 903 (1978). Also, as indicated in the 
text, infra, some of those states have read their statutes more 
narrowly, confining the use of deadly force to those fleeing 
violent felonies. See Kortum v. Alkire, 59 C.A.3d 325, 138
Cal.Rep. 26 (1977); State v. Sundberg, 611 P.2d 44 (Alas. 1980) 
(reading prior Alaska statute consistently with new statutes 
and limiting it to dangerous felonies; see also Clark v.
Ziedonis, 368 F. Supp. 544, 546 (E.D.Wisc. 1973), aff'd on other
grounas, 513 F.2d 79 (7th Cir. 1975) (reading Vvisconsin statute 
as limited to violent felony situations).

Several states have no statute. In these jurisdictions, 
it is sometimes difficult to asertain what rule is applied since 
the case law is frequently of substantial vintage. See, e .g .,
State ex rel. Baumgarner v. Sims, 139 W.Va. 92, 79 S.E.2d 277 
(196 3 j ; Meldrum v. State, 23 Wyom. 12, 14t> P. 596 (1915). As 
discussed infra, this may reflect the fact that few juris­
dictions actually employ deadly force to stop nondangerous 
fleeing felony suspects. Of the prior common law jurisdictions, 
some have reaffirm.ed the rule in recent years, Uraneck v.
Lima, 359 Mass. 749, 269 N.E.2d 670 (1971), while others have 
modified it. Giant Food, Inc. v. Scherry, 51 Md.App. 586, 544
A.2d 483 (1982).

- 2 3 -



departraents actually operate under that standard. Several states 
that ostensibly follow the common law rule have modified it by 
judioial interpretation. For example/ California is normally 
listed as one of those staets that has codified the common law 
rule by statute. See e .g ./ Matulia/ A Balance of Forces;
A Report of the International Association of Chiefs of Police 
17 ^National Institute of Justice 1982); Comment, Deadly Force 
to Arrest; Triggering Constitutional Review, 11 Harv. Civ.
Rights-Civ. Lib. L. Rev. 360, 368 n.30 (1976); Cal. Penal Code
 ̂ 196 (West 1970). Its courts, however, have interpreted that 
statute to allow the use of deadly force against only those flee­
ing violent felonies. Kortum v. Alkire, 69 C.A. 325, 138 Cal.
Rep. 26 (1977). Similarly, Maryland has a common law jurisdiction, 
but its courts have limited the privilege to use deadly force to 
those situations involving an immediate threat of harm. Giant 
V .  Foods, Inc, v. Scherry, 51 Md. App. 586, 544 A.2d 483 (1982)
(robber fleeing without threat of violence).

More importantly, the actual practices of most police 
departments are governed not be state law but by more restrictive 
raunicipal or departmental policies. See Matulia, supra, at 153-44.
For example, Michigan is a comraon law jurisdiction. See Werner 
V .  Hartfelder, 113 Mich. App. 747, 318 N.W.2d 825 (1982). 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% of those are consonant with the standard adopted by the court 
of appeals in this case. Staff Report to the Michigan Civil Rights 
Commssion at 54 et seq. (May 18, 1981). This trend is particularly 
true of major metropolitan areas. Although Arizona, Connecticut, 
Masachusetts, New Mexico, and Ohio are common law states, Phoenix,
New haven, Boston, Alburquerque, Santa Fe, Cincinnatti, and Dayton all 
have deadly force policies that would bar the shooting in this

- 24 -



IS/
case. App. 1318, 1291 1131, 1110, 1330, 1209, & 1218.

The most recent survey of municipal deadly force policies
confirms this trend. The International Association of Chiefs of 
Police ("lACP") solicited the deadly force policies of all cities 
over 250,oOO. All but three responded. Matulia, supra, at 153. 
Only four, or 7.5%, follow the common law rule. More than half 
limit the use of deadly force ina manner that is consonant with 
or stricter than the standard adopted by the court of appeals. 
About 40% limit the use of deadly force to those fleeing from 
"atrocious" felonies; the lACP report does not distinguish between 
those policies that exclude burglary from that category and those

ii/that include it. Id- at 161. The survey of municipal deadly 
force policies contained in the offer of proof, although somewhat 
dated, is to the same effect. The offer of proof contains the
deadly force policies of 42 cities, including 30 of the 44 largest

20/ . . , -cities in this country. Over 70% of these policies woula
bar the shooting in this case; almost two thirds apply standards
consonant with the decision below. The recora information

18/ The same is true for the Memphis Police Department, whose
bitten policy is stricter than state law in that it prohibits 
the use of deadly force against those fleeing arrest from 
certain property crimes such as embezzlament.  ̂ App.
Although ^lemphis's written policy does authorize the shooting o 
fleeing burglars, it would prohibit the shooting that occurred 
in thif case because it applies a defense of life standard when 
the fleeing suspect is a juvenile.
19/ The information available to respondent-appellee, including
^ e  municipal policies contained in the offer of proof, indicate 
that no miore than half of these policies include burglary as _ an 
"atrocious" felony. Thus, only about one quarter of the municipal 
policies considered by the lACP would allow the shooting in this case,
20/ Of the fourteen cities from this category that are not 
Tipresented in the offer of proof, information is available on seven. 
Six of these cities —  Houston, El Paso, Forth Worth, Austin, a 
Antonio, and Honolulu —  are in states with deadly ,
modeled on the Model Penal Code. Tex. Penal Code, . 2, ^9.51(c)
(1974); Hawaii Rev. Stat. Title 37, § 7U3-307(3)(197b). Two others
—  Baltimore, Maryland and Long Beach, California are in states 
whose courts hve restricted the use of deadly force. Giant Foo^ ,  
supra; Kortum v. Alkire, supra.

- 2 5 -



indicates that/ for the 44 cities/ these fiyures are and
21/77^, resepectively.

Perraissive state laws and municipal policies notwithstand~
ing, very few police departments actually use deadly force to
g-̂ op fleeing suspects* Only a small minority of police firearm
discharges nationwide are for the purpose of stopping nondangerous

22/fleeing felony suspects. in large part, this reflects the fact
than handguns are an unreliable means of effecting an arrest.
For example, the record information on the use of deadly force
to stop fleeing property crime suspects in Memphis shows that
between 1969 and 1974, Memphis police used their revolvers to
attempt to stop fleeing suspects on 114 occasions, resulting in

23/only 16 woundings and 17 deaths. App. 1460-69. Although 
the data is incomplete, it appears that a large percentage of tlie 
suspects fired upon eluded capture. ; App. 957. In the words
of the Memphis police director: "The chances are ... under the
circumstances where deadly force is used. . . , he Ltlie police officerj 
will not hit [the suspect]." App. 958. Ke also observed that

21/ 'These figures include the seven cites discussed in n.20, 
supra.
22/ The figures vary, of course, from city to city depending 
on that city's policy. See Aplp. 791. 11.3% in New York between
1971-1975); W.A. Seller k K.J. Karales, Split Second Decisions: 
Shootings of and by Chicago Police 6 (Chicago Law Enforcement 
Study Group 1981) (17% between 1974-1978); M. Myer, Police
Shootings at Minorities: The Case of Los Angeles, 52 Annals of 
ûaer. Acad, of Pol. & Soc. Sci. 98, 104 (1980) (between 1974-1978,
15% of all shootings at blacks, 9% of all shootings at Hispanics, 
and 9% of all shootings at whites); M. Blumberg, The Use of 
ueadly Firearms by Police Officers: The Impact of Individuals, 
Communuites, and Race 201 (Ph.E . Dissertation, S.u.N.Y., Albany, 
Sch. of Crim. Justice uec. 14, 1982) (7.8% in Atlanta between
1975-1976; between 1973-1974, 4.6% in the District of Columbia, 
10% in Portland, Ore,, but 58.1% in Indianapolis).
zu/ This represents only about half of all firearm discharges 
by Memphis police during this period. App. 14b9.

—  2 6 —



"of all arrests how mani- involve the use of deadly force, I would 
say it would be less than one percent, £:)rcbably less than a half
percent. ... Ll]f you want to even boil it down to arrests of
felons I think you'd still find it less than -- well, let's say
you'G find it a ninute percentage point." App. 9b7-t8. kart of
the reason for banning warning shots was the fact that it had the
opposite of the desired effect; it tenaed to spur the fleeing
suspect. Tne Memphis j^olice director concluded that shots that
iuiss probably have the saiue effect. App. 963-b4.

Thus, it is not suprising that the majority of modern police
departments no longer authorizes the use of deadly force in this
coiitext. Many, including the FBI, App. lHb9, apply a strict defense
of life policy. Also telling is the position of professional police
organizations. The standard recommended by the lACP report is
that: "ian 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 bodily harm or death to
the officer or other person(s)." Matulia, supra, at 164 (emphasis
in original). Similarly, the Standards for Law Enforcement Agencies
(August 1983) of the Commission on Accreditation for Law Enforcement 

. 24/Agencies provides "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." Standard 1.3.2. This clear position of the organized, 
professional police community refutes the state's argument that 
effective law enforcement will be hampered without the authority

24/ These standards were "prepared by the four major law 
enforcement executive membership associations, the ... lACP, 
Natioanl Organizaiton of Black Law Enforcement Executives 
(NOBLE); National Sherrifs' Association (NSA); and the Police 
Executive Branch Forum (PERF). Id. at iii.

- 2 7 -



to shoot nondangerous fleeing felony suspects.
Finally, it should be noted that the city's argument that

"the decision below will create much confusion among law enfcrce-
iLent officers," Cert. Petition at 11, is unsupportable. To the
contrary, the standard adox^ted by the court of appeals is superior
to the m.ultiplicity of formulations that currently govern the use

26/of deadly force. Rather, it provides "a single, familiar stan­
dard ... essential to guide police officers, who have only

2 5 /

25/ Respondent-appellee recognizes that such standards "do not 
establish the constitutional miraima . . . , " Bell v. b’olfish, 441 
U.S. 520, 543 n.27 (1979), and does not offer them: as such.
Indeed, these standards are more restrictive than that adopted by 
the court of appeals under the Fourth Amendment. But these 
standards are surely "instructive," Wolfish, supra, of the degree 
to which experienced police professionals have concluded that the 
authority to shoot nondangerous fleeing suspects is not necessary 
to effective law enforcement.

The significance of the ability to shoot at fleeing property 
crinies suspects to the overall clearance rate for all reported 
property crimes is miniscule. As Dr. Fyfe has observed: "[I]n
order for the police to have cleared even one percent [more] of 
the nonviolent felonies [burglary, larceny, and auto larceny] 
reported in 1978 thorugh '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." 
Fyfe, Observations on Deadly Force, 27 Crime & Delinquency, 376,
381 (1981).
26/ For example, while some states require only that there be 
anapparent necessity for the use of deadly force, see, e . g . ,
^,artyn v. Dcnlin, 151 Conn. 402, 198 A.2d 700 (1964J, others
require actual necessity. See, e . g . , Onion Indeminity Co. v. 
Webster, 21a ALa. 468, 118 So. 794 (1928J. Similarly, some
states require only that the officer have a reasonable belief 
that a felony has been couimitted, see, e . u . , Keese v. Seattle,
81 Wash.2d 374, 503 P0.2d 84 (1972), while a minority of juris­
dictions require that there have been a felony in fact. See, 
e.g., tetrie v.Cartwrig^, 11^ Ky. 103, 70 S.W. 297 (1902j. See
generally, rim,otation, t'iodern Status; Right of Peace Officer 
to Ose Deadly Force In Attempting to Arrest Fleeing Felon, 83 
^^.b.R.od 174, 19 5- .iU5 ^1978).

On the local level, the various departmental and municipal 
ueadly force policies vary with regard to the underlying criminal 
conduct justifying the use of deadly force, but also with regard 
to the subjective state of mind of the officer. Scrae require an 
"honest and reasonable belief," App. 1348, "reasonable cause,"
rixqj. 1272, "probable cause," App. 1151, "knowledge beyond a 
reasonable doubt," App. 1211, or "a virtual certainty," App. 1218.

- 2 8 -



limited time and experties to reflect on and balance the social 
and individual interests involved in the specific circumstances 
they confront." Dunaway, 442 U.S. at 213-14.

III. THE JUDGMENT BELOW SHOULD BE AFFIRMED BECAUSE THE 
MEMPHIS POLICY AND CUSTOM IS ONE OF LIBERAL USE OF 
DEADLY FORCE THAT RESULTS IN THE EXCESSIVE AND UN­
NECESSARY USE OF SUCH FORCE TO STOP NONDANGEROUS,
FLEEING FELONY SUSPECTS_____________________________
Although the court of appeals did not reach the question

of the constitutionality of Memphis's policy and customs regarding
the use of deadly force, it was familiar with the exceptional
record of Memphis police with reagard to the shooting of fleeing
suspects, particularly blacks. See Hayes v. Memphis Police Dept.,
571 F . 2d 357 (bth Cir. 197b); tviley v. Memhis Police Dept., 546
F.2d 1247 (bth Cir. 1977); Qualls v. Parish, 534 F.2d b90 (bth
Cir. 197b); beech v. Melancon, 465 F. Supp. 1072 (v;.L. Tenn.
1971) (three judge court); McKenna v. City of Memphis, 544 F.
Supp. 415 (Vv.D. Tenn. 1982) (shooting of brother officer in

27/attempt to stop fleeing misdemeanant;. The excessivenes of 
the Metphis policy and customs in vioaltion of the Fourth Amendment 
and the due process clause is an alternative ground for affirming 
the judgment below. Rule lu.5. Rules of the Supreme Court of the 
United States.

Depite the lack of findings below on this issue, the 
record makes clear that Memphis' use of deadly force policy is 
uniquely excessive in its execution. Even assuming the approp­
riateness of using one's revolver to arrest a suspect, Memphis' 
policies, practices, and customs go beyond what is necessary.

27/ As indicated above, supra n.22 and text accorapanying 
nn.23-24, the percentage of firearm discharges against non- 
aangerous, fleeing susplects as compared to all firearm dis­
charges by Meiaphis police is amongst tlie highest in the nation. 
It is also noteworthy tliat Memphis accounts for about 30% of all 
the reported federal cases on this issue in the last lU years.

-2b-



The Memphis Police Department arms it officers with "dum-dum"
28/bullets and trains them to shoot at the target's torso caus­

ing a far greater risk that the resulting wound will be fatal.
The interplay of these two factors creates an indelible impression
upon the Memphis police officer that the policy of the Police

, 29/Department is one encouraging use of one s revolver. Indeed, 
the district court in Wiley, found that the defendant police 
officers

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

548 F. 2d at 1250. See App. 1807-08.
Other policies, practices, and customs of the Memphis Police 

Department also encourage the quick resort to the use of deadly 
force without a proper effort to exhaust other alternatives.
These policies and customs include inadequate training in alter­
natives to deadly force; inadequate stress, both in the written 
policy and in training, on the necessity of exhausting other 
reasonable alternatives; and an official policy, evidenced by 
pronouncements of the mayor, App. 1632 and 1825-28, and the miserable 
failure of Memphis Police Department disciplinary procedures, App.
5^7 and 1858, to review and control firearmi discharges. The 
proximate result is the excessive use of deadly force in situations 
where it is not necessary in order to apprehend the suspect.

28/ Captain Coletta testified that the reason for teaching 
Fecruits to aim for the torso was not related to police safety in 
any way; it did not create a better chance of neutralizing a 
dangerous suspect. App. 353—57. Rather, it is taught solely 
because the torso presents a greater target and thus reduces the 
chances of missing. App. 357-58.
29/ Chief Bracey would testify that "a definite m.essage was 
transmitted when LMemphis] reiterated its policy of shooting 'to 
stop' and at the same time introduced the use of dum-dum bullets. 
The message transmitted to line officers would seem to suggest 
the departiaent ' s support of firearm use." App. 773.

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This case provides an adequate illustration: the police
experts testified that hyraon should have attempted to apprehend
young Garner, who was only 30 to 40 feet away, rather than relying

30/solely on his gun. A. b. Other illustrations abound. In 
McKenna, the officer who hit his fellow officer was shooting at a 
fleeing misdemeanant; he was a known shooter, but had never 
been disciplined or restrained. 544 F. Supp. at 417. In another 
instance, MempKhis officers shot and killed a fleeing black teenager 
who had committed car theft, even though his accomplice was already 
in custody and could have provided identification. The officer 
who shot never considered any alternatives. App. 844-45.

Moreover, Memphis' inadequate disciplinary and review
. . 11/procedures and inadequate training telegraphOthe clear 

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

In sum, there can be little doubt that myriad Memphis 
polices and customs are implicated as the cause of the shooting 
death of respondent-appellee's son. "In this case. City officials

30/ The only witness to testify that the officer was justified 
Tn using his gun was Captain Coleta, who had both trained Hymon 
and sat on the review board that condoned the shooting. App. 506 & 
507-0y. Even so, his opinion was based on an assumption not sup­
ported by the facts: that Hynion was "physically barred from the
area by a fence." App. 532.
31/ The evidence of inadequate training such as the testimony 
aT the original hearing that new recruits are told to use their 
judgment to use deadly force, but not given adequate guidelines 
to structure that judgment, and the heavy reliance on the "Shoot/ 
Don't Shoot" film, which appellant's expert Chief Bracey would 
testify has a negative effect on an inexperienced recruit, making 
hiru jumpy aiid more likely to employ deadly force. App. ____.

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did set the policies involved ... training and supervising the 
police force...." Leite v. City of Providence, 463 F. Supp. 585,
5b9 (u. R.I. i97b), exposing tiie city to liability under bcneJJ^. 
ioung Garner was shot pursuant to that policy and custom "which 
allows an officer to kill a fleeing felon rather than run the 
risk of allowing him to escape apprehension." Garner, 6U0 F. 2d 
at 54-; A. 16. here, the officer did no more than follow that 
policy, as he "was taught." at 53; A. 16. The judgment
below should be affirmed on this basis alone.

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

The Memphis policy runs afoul of another basic
principle:

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

Furman v. Georgia, 408 U.S. 238, 389 n. 12 (1972) (Burger J.
dissenting). The authorization of Memphis of police officers to
use discretion to shoot nondangerous, fleeing property crime
suspects in just such a policy: the Tennessee law as applied in
Memphis is just such a statute.

Under Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 
252 (1977):

Determining whether invidiou 
a motivating factor demands 
such circumstantial and dire 
be available. The imipact of 
whether it "bears more heavi 
Vvashington v. Davis, supra, 
S.Ct. 2040 —  may provide an 
Sometimes a clear pattern un

s discriminatory purpose was 
a sensitive inquiry into 
ct evidence of intent as may 
the official action -- 
ly on one race than another," 
at 242, 48 L. Ed. 2d 597, 96 
important starting point, 

explainable on grounds other

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than race, emerges from the effect of the state action 
even when the governing legislation appears neutral on 
its face. Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220, 
6 S.Ct. 10fc)4 (1686)....
The historical background of the decision is one eviden­
tiary source, particularly if it reveals a series of 
official actions taken for invidious purpose....

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

against non-dangerous fleeing property crime suspects clearly 
"bears more heavily on one race than another" and is "unexplainable 
on grounds other than race." W .  Just a sam.ple of the statistical 
evidence offered below illustrates this significant disparity. 
Blacks accounted for 84.21% of the property crime suspects shot 
by Memphis police between 1869 and 1974, although blacks comprise 
only 70.5% of those arrested for property crimes. Controlling 
for differential involvement in property crimes, blacks were more 
than twice as likely to be shot at four times more likely to be 
wounded and 40% more likely to be killed. App. 792-93. It is 
particularly significant that in situations involving violent 
suspects, when Memphis officers are more likely to be shooting on 
the basis of real need, this disproportion disappears; the number 
of black violent crime suspects who were shot at was proportional 
to the racial breakdown of violent crime arrests. App. 1589-92 
and l7t>9-77.

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

42/and law enforcement. Tlie department was repeatedly the
agent of enforcement of the segregation laws in the 60's, App. 
1539-40, engaging in racial abuse and brutality during the 
sanitation strike in 1968. App. 1571-75. A 1970 NAACP Ad Hoc

42/ As long ago as 1874, a "Resolution asking Police Board to 
XDUt 20 colored men on force, lost by vote 16-3" before the City 
Council. App. 1646.

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CciTJ-uittee Report concluded that: "the most common form of
address by a tlemphis policeman to a black person appears to be 
'nir.ger.'" App. 1671. And, it was acknowledgeu by Mayor Chandler 
that, as late as 1972;

The black corrariunity, speaking generally and in a broad 
sense, perceives the police departiaenc as having consis­
tently brutalized them, almost their enemy insteaa of 
their friena.... LTJalking about in 1972, what you say 
is absolutely true and I would say almost across the 
board.

l62b-29; accora App. 931-32 (police director testified that:
"There is a basis in fact for the distrust of the black community
.... C. And 1974? A. Absolutely.") In 1974, when young
Garner was shot, blacks made up only 10% of the force and only
3.1% of the officers over lieutenant (there were no blacks higher

43/than captain) in a city that was almiost 40% black. This 
inevitably led to a situation when ever the black officers, such 
as officer Hymon, were disposed to follow the ethos of the 
department. See Castaneda v. Partida, 430 U.S. 482, 499 (1977).
The Memphis police direcotr testified in 1979 that he "had eqal 
problems with the black officers in terms of the black officers 
trying to out red—neck the white officers.... I mean that's 
literally LsicJ what we had." App. 975.

The discretionary nature of the authority to shoot allowed 
Memphis police is another factor that confirms the racially 
discriminatory nature of the disparate imipact of the Hemiphis 
policy regarding use of deadly force against non-dangerous 
fleeing property crime suspects. The consignment to the officer's

43/ Community Relations Service, United States Department of 
Justice, Memphis Police and Minority Community; A Critique at 7 
(May 1974), App. 1690. See also App. 910 & 974. That same year, an 
employment discrimination lawsuit brought by the Department of 
Justice was settled. The consent decree was designed to increase 
the hiring and promotion of black officers. United States v. City 
of Memphis, Civ. Action. C-74-286 (W.D. Tenn. 1974).

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45/

discretion is "a ready mechanism for discrimination." Rowe v . 
General Motors Corp., 457 F. 2d 348, 359 (5th Cir. 1972) (Title
VlIJ. rt.very v. State of Georgia, 34t U.S. 559, 562 (1953;
(discrimination in jury selection). "[A] selection proce­
dure that is susceptible of abuse or is not racially neutral 
supports the presumption of discritiination raised by the statisti­
cal showing." Castaneda v. Partida, 430 U.S. at 494 (citing 
t<ashington v. bavis, 42b U.S. at 241).

In conclusion, Memphis' polioy allowing the shooting of 
nondangerous fleeing property crime suspects is discriminatory.
The policy "bears raore heavily on one race than another . . . [and 
itj is very difficult to explain on nonracial grounds...." 
V»ashington v. Davis, 42b U.S. at 242. It must be read against an 
historical record of racism in the Memphis Police Department. 
^loreover, this racial discrim.ination is the result of the explicit 
policy consigning the decision when to shoot to the individual 
officer's "heavily subjective" discretion without prescribing 
adequate standards. Castaneda, 430 U.S. at 497; Furman, 408 U.S. 
at 389 n. 12.

CONCLUSIQIm
For the foregoing reasons, the motion to affirm or dismiss 

in No. 83-1035 should be granted and the petition for a writ of 
certiorari in No. 83—1070 should b denied.

Respectfully submitted.

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

\

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