Excerpt of Testimony: John A. Coletta

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EXCERPT OF TESTIMOi'TY 

JOHN A. CQLETTA.
having been duly sviorn, was examined and testified as follows:

DIRECT EX/lIINATION 
3Y MR. DAYS:

Would you state your full name for the record^Q.
please?
A.

Q.
record?
A.

Q-
Cole tta?

John A. Coletta.

And would you indiccte your address for the 

292 Barry Roadj Memphis.

Can you indicate by whom you're employed, Mr.

A. Captain with the Mi.i:'phis Police Department,
presently in charge of the training bureau.

Q* - ■ What is your exact job classification at this
point?

A. Commander of training bureau.

Q- Within the rankings In the Memphis Police Department,
where does the rank of Commard.'r stand?

A. Coiiunaoder is a titl> indicating responsibility. I
have the responsibility for the entire training bureau. It 
encompasses three areas.

Q- Well, but for example, in the structure of the

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depart,uent, i tats it there u  a Chief of Police, ia there 
no t?

Yes.

^ And tnere is a Director of Public Safety?
A- N o .

Is there any official or employee of the department
with a higher title than Chief of Police?

No, not at present. There is hut- i
I S ,  but It's not filled.

And what title is that?
Director of Police.
Director of Police-'•
Yes, sir.

No«, below the levol of Chief of Police, what la 
141 the next rank?

Deputy Chief.

And below Deputy chief is what rank?
Inspector.

 ̂ And oelow Inspector is what rank after that?
Captain.
Captain?

Rleht, but elther-o- contingent upon responsibility 
13 job asslgrttent rather than rani- indicating it.

fl- Now, what is your exact rank in the department?
Captain l.s my rank.

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Q- And how does the ti.(;.ie ''Commander" come into play?
A. That v;as the title. rvC the person that is in charge
and has the responsibility of the training bureau.

Well, does a Captain who is a Commander get paid 
more than a Captain who is nc'-. a Commander?
A. Not a bit.

Q' Is that a policy that pleases you?
A. Yes, it does.

In other words, yoti don't mind the fact that 
Captains v;ho are Commanders get paid the same salary as 
Captains v/ho are not Commanders?

A- I may mind a lot o.i things, but I can' t do anything
about it.

How long have you been a member of the Memphis 
Police Department?

A. 19 years .

'5- Can you indicate something about your educational
background before you joined ttie Police Depaertment?

A- Prior to joining in 1957j I had a high school
diploma.

And have you had any education subsequent to your 
joining the Police Department?

A- Yes, I received a Bachelor of Arts Degree from
Memphis State .in Police / dmi^iis tration. I have also attended

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the National Academy which is a recognized police school con­
ducted by the FBI.

Q. And how long was'that course of study conducted by
the FBI?
A. Three months .

0,. • And can you indicate what the substance of the
course of study was?

A. It was directed tov.'-rds your individual respon­
sibility. They have options which v/e can take for subject 

matter such as the same as a university^ and I elected courses 

in Management and Contemporary Problems of Administrators and 
Trainers, Research.

Q. Prior to your becoming a Commander of the training
bureau, what responsibility did you have with the department? 
A. I was in charge of the firearms section of the
training bureau.
Q. Were you at the rank of Captain at that point?
A. Yes, I was. Well, I was Lieutenant and Captain. I
was promoted that year.
Q. All right, perhaps we could get a sense of your
movement up through the rank:', in the Police Department. VJhen 
you joined the department, do I recall correctly some 19 years 

ago?
A. Yes. sir.

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Q.
y

You were at what
A. Patrolman.
Q. And how long did
A. Seven years.
Q. And after that se

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higher rank in the department?

^ wa-s promoted to Detective and then 
subsequently to Lieutenant, cr,ri i spent three years in the 
Detective Bureau.

Q* . And can you describe briefly the nature of your
responsibility v;ithin the burc;-?.u?

^ investigator in the pav;n shop and junk
squad.

Q- Could you explain and repeat, and once you have
explained what that is all about, exactly the term you used, 
what that responsibility was?

A- The responsibility was to investigate any complaints
regarding thefts and to check the various pawn shops and 

scrap yards within the city to check for stolen merchandise, 

and also to receive their daily pawn report that would indicate 
what persons had oawned what i.v.rchandisc, and to check those 
against the stolen lists, whstover.

Q- Okay, could you repeat what detail it was that you
had responsibility foi-? Did you say —

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(Interposing) i was an investigator. I did not 
have the responsibility for it.

^ thought you said something to the effect of 
stop and jump or pav/n shop, something along those lines?
A.

Q.
Pawn shop.

The pawn shop. -

MR. KLEIIl: I really hate to
interrupt. I don't see the relevancy 
of this to the issiv- at hand. I'm 
going to have to object to it.

MR. DAYS: Well, Mr. Klein, I
ivas just doing that tor purposes of .my 

own record. I simplv dian't hear what 
he said.

THE COURT: All right, I think
he said'pawn and junk shop.

THE WITNE.'o: Detail, yes.
(By Mr. Days) Pawn o.nd junk, all right. After 

your three year stint in the Detective Bureau, did you assume 
other responsibilities?

after ray three .years, I was transferred to the 
firearms section of the training bureau and I was there until 
approximately October of last year when I assumed full 
responsibility lor the entire braining bureau.

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A H  rightj now, xroru what year to what year were 
you in charge of the firing range?

A* I was assigned there from I966 until 1975. I
assumed command of that sectJ.on approximately 1 9 7 0.

All right, between l̂ '6o and 1970^ what v;ere the 
nature of your duties at the firing range?

A* Primarily administrative and instructive duties.
Q- Could you be more specific, Mr. Coletta?

A‘ There is ejuite a number of items of inventory at
the range, weapons, tactical gear, et cetera, and it's our 
responsibility to keep up with them, to issue them, to 

instiuct in the use of those various items of equipment and 
also, of course, the weapons themselves.

Now, during that process between or during that- 
period, between I966 and 1 9 7 0, were you charged with instruct­
ing members of the Police Department in the use of firearms?
A- • Yes, I did some instructing also.
Q- . How was it that you cossessed qualifications to
instruct other members of the department in the use of fire­
arms?

A* Well, I have initially taken it upon my own to
investigate the various avenues that are open to bettering 
myself as far as ,job opportunities v/ere concerned, and I 
took it upon myself to delve into the finer aspects of

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firearms instruction, and to also research the ramifications 
surrounding firearms themselves, which is a very, very wide^ 
field.

Q- All right, but during the period I966 to 1970, did
you receive any specialized course of instruction with respect 
to the use ox firearms either within the department or else- 
'where?

A. Yes, within the department, certainly.

Q- And what was the nature of that type of training
that you received?

A' Of course, it was primarily a firearms instructor
course which was designed to equip a person teaching that 
particulai’ type of subject, t'c be able to teach it better.
Q- And who taught you?

The person who was in charge at that time.
And who was that person?

Captain Earl Clark.
Captain Clark?
Uh huh.

In 1970 you, I assume, took the responsibility over

A.

Q.
'A.

Q.
A.

Q.
from M r . Clark?

A. Yes, sir.

Q’ And between the period I970 and 1975 while you v;ere
in charge of the x'ange, did vou receive any specialized

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instruction with respect to ine use of firearms or the 
instruction in the use of firearms?
A. Yes, I did.

Q- Can you indicate the nature of that instruction?
A. I attended the National Police Firearms Instructors
School which is held annually at Camp Perry, Ohio, and I also 
attended the Firearms Instructors' School conducted at the 
State Training Academy at Donclson, Tennessee.

Q- And hov; long a course of study was that?

A- One week each, I believe. In addition, of course,
I have attended many seminars and workshops and things of 
this nature that are also related.

During the 'period '.•hen you were in charge of the 

firing range, 1970 to 1 9 7 5  ̂ Wno v;as your direct superior..in 
the .i department?

A. The Commander of the training bureau who was —
well, I would have to think because it's been quite a number 
of them.

Q- V7ellj it's not necessary if you don't remember the
name to recall the specific individual, but you reported to 
the commanding officer of the I'-raining bureau?
A. Commander of the tvilning bureau, yes.

Q* And to whom did the Commander of the training bureau
report, if you !uiow?

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A- The Deputy Chief of Administrative Services.

All right. Now, at the time that you were in charge 
of the firing range, were ypu given instructions by the 

Commander in charge of the tr-ining bureau with respect to 
what type of instruction you r-'iculd provide to the members of 
the department?

Viell, certainly we v/oiild have meetings concerning 
it, but really the Commander of the training bureau didn't 

know as much about it as I did, because I had made it a point 
to learn that particular topic .

Well, what was the luiture of the mandate, if you 
will, that you received from your superior with respect to 
how you went about conducting firearms training for officers 
of the department?

A* Our objective was to qualify people in the use of
the revolver and the shotgun. That was our primary objective. 
In the course of that instruction the question might arise 
upon when it would be tactica-ily feasible to use a firearm, 

when it v/ould be, according to department policy auad according 
to law. Justified to use firearms, but this was to reinforce 
the legal subjects which were to.ught in the academic section 
of the Academy itself.

Q- You Just usrd the term "Academy" and we were talking,
if I recall correctly, about the firing range. Are they, in

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1 fact, the same entity —
2 A. (Interposing) They are the same bureau. They are

3 separate sections.
4 Q. All right, but before we get to that, I want to ask
5 you v/hether it v/ould be a fail' characterization of your

6 authority when you were in ch-arge of the firing range of the
7 department, that you were essentiaJ-ly delegated by your
8 superiors the responsibility for determining what would be

9 the appropriate type of firearms training for members of the

10 Memphis Police Department?
11 A. Yes, more or less.
12 Q. VJhy did you conclude by saying, "More or less"?
13 A. You're never an autb.ority because every subject is"^
14 dictated not only by what has been or by precedent, but also
15 by contemporary problems of what is and also by projected
16 what may be. A lot of policies changed and a lot of proce-

17 dures were changed because of changing times and changing
18 orders which would be issued from time to time, amd because

19 of the legal ramifications thab aJ-so were changing pretty
20 rapidly through this period of time.
21 Q. Mr. Coletta, is it fair to say that on a day-to-day
22 basis you had decision making authority with respect to
23 training at the firing raxxge?
24 A. More or lass, yes.

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I'14 beijirunin̂ i to fcal that "more or less" is just 

a habit that you have in responding to questions or did. ;̂ ou 
mean something —

A. (Interposing) I'm not absolute —
Q- (Interposing) I s f .

A. (Continuing) —  if that is what you mean.

Q* I see. Now, I would like to turn to the whole
question of the training academy as distinguished from the 
firing range. Could you make clear for the record hov; those 
two entities differed, if, in fact, they did differ?

A- Yes, sir. The training academy is charged with
the classroom responsibility. The firing range is charged 
with the practical responsibility of teaching firearms 

instruction. The Academy does not teach firearms. The range 
section teaches the firearms.

Q- All right. In your capacity as head of the firing
range, what responsibilities did you have with respect to the 
Police Academii- in which I assume recruits to the Police 
Department receive training?

A. To the recruits?
Q. Yes.

A
A. Well, naturally I would work in liason, in close
liason with the Academy to be aware of what they were teach­
ing, but my direct responsi'-ility was to the Commander of the

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training bureau who' had the overall —  who was charged with 

the overall operation. It wac his responsibility to 
coordinate.

Q- Okay, v;as the Commander of the training bureau in
charge not only of the firinj; range but of the Academy 
itself?

A. Yes, sir.

Q« And v;as there a perron below the Commander of the
training bureau at your leve]. who was, in fact, the direct 
supervisor of the Academy?

A. Yes, sir, there was.

Q- And was that person at the level of Captain?
A. It's fluctuated. At one time,, yes.

Q* Well, did you have any line authority to spealc of
in terms of what types of training would be included at the 
Academy for police recruits?

A. 'Vrell, I would imagine line authority —  if you
would explain —

Q- (Interposing) All right, by line authority I mean
that you would have the power bo say to the person in charge 
of the Academy, you must incln.ie the following procedures 
within the training program for this group of recruits.
A. No, sir.

Q- VJould you have thn. i'. authority?

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A.

Q.
A.

Q.

No, sir.

Did you have —

(Interposing) I would recommend. I wouldn't tell.- 
Were you generally successful in getting your 

recommendations approved?

A- Fairly successful, I -would say.

Do you recall any major respects in which your 
recommendations were not entertained and acted upon favorably 
by your superior?

A- Well, not offhand, really. I can remember incidents
where maybe the change was n o t implemented within a specific 
time opan that I thought maybe, it should have been.

Did you participate i.n an Academy training program 
for recruits in I972?

A. Yes, I'm sure I did.

And do you have any recollection of whether you also 
were involved in a training program for recruits in 1973?
A. Yes, sir.

Q* And ivhat was the natu.re of your responsibility in
1972 and ' (3 with respect to th.c training program for the 
Academy?

A. My primary responsibility?
Q- Yes , sir.

A* Was to teach peopl - to fire revolvers and shotguns.

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Q* Could you in generalized fashion describe the
structure of the course of training that you would provide 

with respect to the use of'firearms? What were the blocks of 
instruction that you provided?

A. Well, of course, vie would try to provide a program

based upon chronological order in the learning process, start 
at the base and work up. Initially, we would orientate the 
people to just exactly what ttiey would be subjected to. We 
would teach them the safety aspects surrounding the use, 

surrounding the handling, surrounding the care and cleaning 
of firearms. We would instruct in the nature of’the firearm 

itself, the names of the various parts, the technical 

aspects of it. Vie would use training aids to illustrate 
these various points and atteiapted to gee the student to be 
able to, once he walked on the line, to be safe and to be 
able to at least understand tlie basic rudiments.
Q- Now, was the content of this training program a
reflection, to the best of your understanding, of the 
departmental policy with respect to what officers should Icnow 

about the use of firearms and v/hat types of firearms they 
should be faniilJar with in terms of their police work?
A. Yes, sir, but not in its entirety because when you
talk about officers knowing t'veir firearms and how to use 
them, you're also speaicing .'.bout legal aspects which is

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taught in the. Academy section by a lawyer.

Q- What do you know about the so-called legal aspects
of the training as that area might relate to the use of 
firearms?

A. Well, of course, as it's written now, Tennessee
State Law is the governing factor. Now, that is law.

Q- All right, but what I'm asking you is were you a
participant at any point in wl'-at you characterize as legal 

discussions or legal instruction with respect to the use of 
f irearms?

A. Yes.

Q- Can you describe the nature of your participation
in that process?

A. During the course of marksmanship questions would
arise, when to shoot, when not to shoot, .should you do this, 
should you do that, and certainly we would attempt to ansv/er/ 
questions that we were knowle.igeable about, regarding those; 
'Whether it be departmental policy, whether it be State Lav;, 
and we would attempt to counsn], and guide the student into 
a realm whereby he wouldn't t':ike the v;rong impression from  ̂

there.

Also, v;e would talk about the moral, aspects of 
firearms use,' the right and th.e wrong of it.

Q- Was there anything i.n the department manuals or

X

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regulatiotiG that addressed, il.seli to the moral aspects of the ! 
use of lethal force?

A. I don' t^think so

Q.
3

Well, how did this moral instruction come about in 
terms of the use of firearms’-

A- Generally in a question and answer period a dis­
cussion would follow. ■

Q- During the period^ Mr. Coletta^ between I970 and
1 9 7 5, did you have any involvmont in questions relating to the 
type of v/eapon or type of ammunition that the department 
should issue to its line officers?
A. Yes, sir.

Q* And can you descriV' tiic natui’c of your involvment?
A- Wellj I had initially been involved in it maybe as
a matter of curiosity or maybe because I thought it was my 
responsibility to make certain that I was aware of what the 

teciinicaJ. aspects of ammunition and 'weapons are and what would 
be best suited for a police officer.

In addition, the Tactics and Evaluation Board had 
requested a study when the Un'.on the issue that they
wanted to use a larger hand gun, and this particular Board
requested a study that we looi' at what 'we were using and make 

a recommendation a.s to v;hat ['articular type of ammunition that 
we would recommend, 'which 'W"’ did.

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Now, 'What 'Was the name of that Board that yoa just 

referred to?

A- I just —  I don't recall its name. Tactics and
Evaluation, or something of that nature.

Q- And was that Board comprised of persons within the
Police Department?
A. Yes.

Q- Can you identify b- rank, if you v;ill, who 'was
involved in that particular Board? Was the Chief of Police 
involved?
A.

Holt.
The Chairman, ■ I thi.nl:, was Chief Inspector Jack

Q- Well, let me put !'■ this way, did that Board

reflect a policy making entity within the Police Department?
A. They do not have the power to set policy, I don't
think. I think what they did 'was make their recommendations- 
to the then Director.

Q- _ All right. And di i you, in fact, conduct any
investigations into the use C  various ammunition and v;eaponry 
at the request of the Board tlvat you mentioned?
A.

Q.
A.

Q.

Yes, we did.
And when was this 'lone?

I don't recall e:c.?.ctly, somewhere around 1973, '74. 
Was it prior to Cc:;cber of 1973?

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A- I don't recall.

f

'3.- Can you indicate what weaponry the Police Department
was using prior to that request that you conduct a study?

A* Tne same that we are using now. The medium Ten
Smith V/esson 3-1- heavy barrel revolver.

3* And What type of auununition were you using prior to
the conducting of this study? ^

A- We bought —  the period of time from 1970 until
now^ we had used hollow point ammunition of various makes 
due to the City's purchasing policy until we definitely 

established one round. And it's just like choosing an 
automobile. They make aill brands.

M K . DAYS: Your Honor, this
reaJ-ly concludes my introduction.

THE COURT: Let's resume at
9 :1 5 in the morning.

(Whereupon, Court v;as adjourned 
at 4:55 o'clock p.m.. until 9:15, August 3,
1976.)

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MORNING SESSION ---- ^ -----------
AUGUST 3. 1976

THE COURT: Are v/e ready to proceed,
gentlemen, with the testimony of Captain 
Coletta?

MR. DAYS: Your Honor, we were
trying to determine whether another one 
of our witnesses was present. We thought 

we might take him before continuing with 
Captain Coletta, but he's not present.

THE COURT: All right. You may
proceed.

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1 JO^ A. COLETTA,
resumed the stand and testified further as follows:
DIRECT EXAiMINATION 
BY MR. DAYS:______  ^

'3* Captain Coletta, directing your attention
to the training program and the Academy In the use 
o-f" firearms. First, I would like to ask you what 
the applicable standards are In the state of 

Tennessee, In the City of Memphis under department 
regulations with respect to the use of firearms.
If you know?

A. Yes, sir. The city requires, the police
department requires —

Q- (Interrupting) Could you start. If I
may Interrupt, could you start with the state 
standards first. If you would.

A. • ‘- I  don’t know If there are any state
standards for recruits per se. However, at a 
recent meeting It was determined that every officer 

shall qualify under his fire department program at 
least annually.

Q- Perhaps you misunderstood my question.
Let me restate It more carefully In hopes that you 
will understand.

Is there not a state statute that controls

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the circumstances und’er which police officers may
V

use lethal force?
A.
Q.

A..

Q.
A.

Yes, there is.

Are you familiar with that standard?
Yes, sir.
Would you state your familiarity with that^

I believe it- is section 40-808, I*m not 
certain of that, but it authorizes a law enforcement 
Officer to use deadly force after all other means, 

reasonable means, have been exhausted in the 
apprehension of a felon-.
Q. Now, there are also departmental regulations

with respect to the resort of lethal force by police 
officers?
A. Yes, sir, there are.

• V/hat is the nature of that regulation?
A. It is more restrictive than state law.
Again following the guidelines of the state law, 
after exhausting all means of apprehension, and it 
eliminates some felonies, such as embezzlement, et 
cetera, primarily the felonies in which deadly fore 

are authorized or crimes against persons, murdering, '' 
burglaries.

Q. Now, as a person Involved in training
programs for recruits-, did you have occasion to go

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over with recruits the requirements of the laws and 
the regulations that you just described?

A- I did discuss them from time to time, but
that primarily was given to them during their legal 
phase of Instructions, probably by a guest Instructor, 
and I Imagine It was our legal advisor at that time.

Q* And would you be present at those lectures
by the legal advisor?

No, sir, I would not.

Have you ever had any hand In preparing 
a fire arms manual for the Memphis Police Department? 
A. Yes, I have.

Q* Can you Indicate the nature of your
participation In such an effort?

A. On many occasions we were asked what do we
teach, and In an effort to clarify this and provide 
guidelines, or as to what we taught, we prepared the, 
prepared the manual that encompassed at that time 
all of the subject matter that we did teach.

Q- And when you refer to "at that time" can
you Indicate what time you are referring to?

Yes, sir, when the manual was Instituted 
I believe around 1972 .:-'

Co the manual would reflect what was being 
taught to recruits as of 1 9 7 2 , Is that right, at the

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Academy?

A. Actually It would reflect what had been
taught before also, to a certain extent.

Q- Do you have a-copy of that manual with
you?

A. No, sir, I don't.

Q* Mr. Coletta, let me show you this document
and ask you whether this is the manual to which you 
were Just referring?

A. Yes, sir, this appears to be it.
Q* And is this the manual that you were
responsible for preparing?
A . Yes, sir.

Now, I ask you whether you recall any 
suggestion in this manual of the legal requirements 
Controlling the use by Memphis Police officers of 
lethal force? .

A. Policies and procedures were Instituted
and placed in the front portion of the manual.
I don't recall at this time just exactly what 
policies are there

Q* Let me direct your attention to page 34
of this document, chapter 5 , and ask you whether 
that refreshes your recollection as to whether or 

not there was included in the manual any discussion

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of the legal standard controlling the use of lethal 
force by police officers?

Y q s , during discussion of liabilities 
and tact on the applicable use of weapons, which 

Is the chapter, we did discuss legal ramifications 
surrounding the use of firearms.

When you say "we", does that indicate that 
you personally engaged In such discussion with 
recruits?

A*. It could have been any one on a range
staff. I don't recall who gave the lecture.

Q- Did you, on occasion, give a lecture with
respect to this particular subject matter?
A. Yes, I did.

*3- Can you indicate the nature of the
lecture that., .you gave on this particular question of 
the use of lethal force by police officers?

•A. Well, of course, we wouldattempt to
provide the officers with guidelines as far as what 
he could and could not do. We would cite cases 
which have occurred elsewhere showing and 
demonstrating to them what these court cases said, 
what the action of the officer was and what the 
result was. We would speak of ethical reaction 
from the community.

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Q. What do yov^mean by "ethical reaction from
the community"?

A. What the community thought that the ethics
of the police department should be In the use of 
deadly force and how, if we succeed, what their 

expectations were. We felt that there would be more 
restrictive laws and that particular time It was 
discussed at length I think on a number of occasions 
concerning these various things. We would also 
speak of the moral dilemma that the officers will 

be confronted with.

Q. What do you mean "moral dilemma"?
A. What that persons, that officer could live
with his actions. If he v/as wrong we have had 
occasion to see where officers have been subjected 
to psychiatric examination. If he was wrong we felt 

•■'.that 'it would-work on him, perhaps not nov;, but per­
haps later on'in his life and we emphasized the 
point that the officers must be right, that he must 

follow the law and that he must be able to Justify 
his action.

Q. And by "Justify" what exactly do you mean?
A. Justify it in every way.
Q. I'm asking for a specific, since you are
engaged in instructing recruits?

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1 Wust be B^lsfled under the Police Department 
policy. He must be able to Justify It under the 
state law, he must be able to Justify it in his own 
mind so he can live with it.

the course of academy Instruction in 
the use of firearms between, let's say, the years 
1972 and 1973 up to the end of 1973, did you 
employ any films, that is movies, to aid in the 
instruction of recruits in the aid of lethal force?

we employed one to help and try to 
develop the officers in the Judgment of his process.

2 8 .

Q.
A.

Q.
court? 
A . ,
Q.
A.
Q.

What film was that?
"Shoot, Don't Shoot".
Were you requested to bring that film to

Yes , ,sir.
Do you have that film?
Yes,sir.'
Are you in a position to project that film 

for tHe benefit of the court?
Yes, sir, it would require a few minutes ’ 

to set the projector and film up.
MR. DAYS; Could we have a brief 

recess for the purpose of setting up this 
film?

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1 THE cd^RT: Yes, sir, but I would
hope that we can go ahead and conclude 

the examination of this witness, unless 
you have some examination in respect to 
the film, and then if possible conclude 

the cross examination, unless cross 
examination relates to the film, and 
then go ahead and get to the film rather 
than Interrupt at this point .

MR. DAYS: Yes, Your Honor, I really

do have questions that are directed toward 
the content of the film.

THE COURT: All right, sir. I'm
sorry that the film equipment and so 
forth was not set up. If you will 
advise us when you are ready. We will 
take a recess.

(Recess.)

(By Mr. Days) Captain Coletta, you were 
asked to screen the film "Shoot or Don't Shoot".
Is that film ready?

A. Yes, sir.

Q- Would you start running it, please?

(Thereupon, the film began at 
9  ̂5 a.m. and concluded at 1 0 :0 8 .)

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Q.

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YiMR. DAiJiS: Your Honor, I would like

to have that film marked and moved 

into evidence If counsel has no 
objection.

MR. KLEIN: No, Your Honor, I have
no objection.

THE COURT: All right, sir. Let
It be marked with the ultimate right 

either to make a copy or to return 
after It has fulfilled whatever use the 
record would specify.

THE CLERK: The next number Is
16.

(Whereupon, the said film was 

accordingly marked Trial Exhibit l6 and
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received In evidence.)
THE COURT: All right, sir.

Q- (By Mr. Days) Ho-w, Mr. Coletta, In the
film "Shoot, D on’t Shoot", there is a discussion, 

is there not, of three criteria that an officer 

should look to in determining when to fire a weapon 
at another person, is that correct?
A . Correct.

Q. Identifying whether a person who Is armed
has the ability to injure the officer, whether there

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an opportunity toAnjure the officer, whether in 

fact the officer is in jeopardy, whether there is 
a chance, the ability and opportunity will be't' *
^^^■llzed in some fashion, is that correct?
A. Tha t ’s correct.

*5- Is it fair to say that this film is
directed toward the queation of when police 
officers should shoot to protect themselves?

A- Yes, sir, as well as other times,
Q* Is there a discussion in the film of

whole question to shoot fleeing felons, is 
there not?

A. Yes, sir, there is.

And the film.says generally 
police officers have the right to use 
^o apprehend fleeing felons?
A . Yes .

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*3* Is it not true in the case that in the
film that all of the fleeing felons were armed, the 

man running through the field, the gun in the hand, 
the fireman, the right to shoot a -fleeing felon, 
there is a situation where the man Jumped out of the 
automobile and ran toward the corner and pulled his 
gun, that is the fleeing felon situation, and then 
there is a man with the satchel in the ooen field and

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i 'ihe had a, I don't knc^ what the weapon was, but he 

had a gun in his.possession, isn't that correct?
A. Yes, sir, and there were several more
scenes where the man that preceded the man coming 
out behind a row of buildings, he was not armed, 
and the last scene, I believe those two were not 
armed either. Yes, for the most part they were 
armed.

. Does it specifically say under those
circumstances that ,i^.^was clear that a felony had 
been committed?

Yes, in some of the cases I think it was 
self explanatory.

Q. I'm trying to get your understanding of
what the film was communicating to you and bn the 

recruits that saw this film. In the situation where 
the two men were comlpg out of the building there 
was no indication tha.t the unarmed man running out 
of the building was a fleeing felon, was there, and 
the last scene with the officers holding his 
badge out, there was no indication that those men 
running away had committed a felony?
A . N o .
Q. They also said if there is a slightest
doubt the officer should not shoot?

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A. Yes . :J

Q. You should be absolutely sure there is
a felony committed before a firearm is used?
A . Yes .

Q. Now, do you have any doubt that this film

was shown to recruits during 1972 and 1973 at the 
academy?

A. I don’t know exactly when. I don’t believe
that there is any question about when it was shown.

Q. Now, did you show any films that related
to the use of lethal force to apprehend fleeing 
felons that were unarmed?

A. I d on’t know of any in existence.

Q. So your answer is that you did not show
such a film?
A. No.

Q. Did you engage in any discussions with the
recruits about the use of firearms to apprehend flee­
ing felons that were unarmed?
A . * I sure did. '

Did you indicate generally the nature of 
discussions that you had with the recruits, what 

types of standards did you indicate to them that 

they should follow in shooting unarmed felons?
A. Of course, the first thing I would do is to

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1 find out what they knpw about it because they had 

understanding when they came to the firearms portion 
of It, their training, they had understanding, their 
legal training. I would find out Just exactly what 
knowledge they have, and I would try to clarify 
points of doubt that they may bring up.

Q. In other words, they would have gone through

, the discussion of what state law required and what 
the department of regulations required?

Yes, sir.

Q* ' All right. Now, am I correct In thinking
that under state law and the police department 
regulations there Is a requirement that officers 
exhaust all alternative non-lethal means In —

A. Yes, sir, exhaust all means that are present
there that you can exhaust.
Q. All right. ■. Now, did you show any films
to recruits about what non-lethal alternatives 
might be available to them In a situation where a 

person was fleeing from the commission of a felony 
that was unarmed?
A. Yes, sir, we discussed It.

Did you show any films?
No films.

Q.
A.

Q. But you say that you discussed It. Can

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you give a general lij^ication of the nature of your 

discussion?
A. Yes, sir, that if you don't catch him

immediately, more than'likely he will escape and 
then the alternative is to put out radio calls, what' 
ever, and attempt to apprehend him that way.

Q. Well, are you saying that if a fleeing
felon escapes, then the police officers should 
contact other policemen and try to apprehend the 
fleeing felon by getting reinforcements, is that 
right?
A . Certainly.

Q. But did you discuss what constitutes

reasonable alternatives, non-lethal alternatives?
A. Yes, sir. There really are none

generally if you don't catch them and then 
generally that is the-point that I'm trying to 
make, that they will have a very difficult time in 

catching them. Most of the fleeing felons are 
driven by some motivation, I don't know exactly 
what, that really drives them to perhaps run 
faster or perhaps do -things that they normally 
couldn't do.

Q. Well, are you saying that, in fact, in
most situations there are no reasonable non-lethal

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1 alternatives that a tjjĵ lice officer can rely upon 

when a person, who is unarmed, is fleeing from a 
felony?
A. No, sir, you -asked me what my discussion
was .
Q. I'm trying to find out what your particular
position is with respect to the existence of 

reasonable alternatives to the use of fleeing force, 
if there are reasonable alternatives, and, if so, 
what they are and to what extent are these alterna­
tives communicated to. recruits? Start with the first 
one. ,7.
A. The first one is to run and catch him.
Q. First, wait a minute, do you think they
are reasonable alternatives?
A. No, sir, I don't think running and
catching him is reasonable alternative.

Q. Why not?
A. Because I don't think, in the majority of

^he cases it can be reasonably done.
Q. Are there any alternatives to running?
A. When someone runs from you, the only

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alternative you may have would be on the front end 
possibly, if manpower is available, employ a 

different set of tactics.

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*3* All right .|̂  So you think that running

probably is not .a very effective alternative.

You have suggested that maybe heading this 
person off might be an-alternative?

A. Certainly you may do so.

educate your recruits that running 
after a fleeing felon that was unarmed was probably 
an unreasonable alternative to the use of lethal 
force?

A- I don't think I projected it as an
unreasonable alternative. '---

Did you tell the recruits they had to 
exhaust all reasonable alternatives before they 
use their weapons?
A Ye^ sir, absolutely, and they were also 
during their law session instructions.

Q- , ■ Did you discuss with them techniques- that
would employ alternates to the use of lethal force?
A . Yes,sir.

'3* . And what were the nature of those police
techniques?

Well, of course, as all contingents of 
catching or being within the same area as the 
suspect --

Q • All right.

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1 A. Once you h a J e  decided what your course of

action would be, and once you have deployed yourself 
accordingly, for example, your partner to the front 
of the office and you to the rear of the. office or 

whatever the situation, utilizing the covered hand, 

once you met armed resistance, once you have adopted 
a particular course of action, then you must carry 
It through until some act changes that course of 
action. Now, you can give a thousand Instances, and 
 ̂ venture to say that those thousand Instances woul^n’ 
occur the way In which you say In the next three

38 .

years. 

Q. That Is true of this film?

A. Absolutely.
Q. That film can't show all the situations

that a policeman encounters?
A. Certainly not. Certainly It would

provide guidelines of some of the reasonable 
alternatives that you are talking about.
Q. ' All right. So I'm asking you what efforts 
that you made to establish guidelines for the use 
of lethal force when people were fleeing from the 
commission of felonies and were unarmed, what are 

the standards?
A. That Is wh??t T say. One alternate Is

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1 j. uiiii j-ii dx u c xa neauxng c

another alternate is shouting at them to stop. 
Q.- Youare telling —

MR. KLEI-N: Your Honor, I don't
think he's letting the witness finish, 
and number two, I think he's cross 

examining his ov/n witness. I object 
to that because he's using legal 
questions.

MR. DAYS: I would like to

clarify that for opposing counsel and 
the court. Captain Coletta is called 
as a hostile witness and/or adverse 
witness under Rule 6ll of the Federal 
Rules of Evidence and under that 
r.ule I am permitted, as I read the 
rule, to examine as though it were 
cross examination. I think it is 

fair to say that Mr. Coletta is a 
. witness Identified with an adverse

party in the sense that he is employed 
by one of the defendants in this 
case.

THE COURT: Well, I will
overrule the objection to the use of

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leading question in treating the 

• witness as representing the adverse 
party in the,proceeding. I will 

ask that if the witness feels he has 
not oeen able to complete a response 
that he advise us so that his response 

will be completed before the next 
question.

Q- (By Mr. Days) Let me apologize to the
witness and to the court if I have been unduly 

Interruptlve in terms of your responding to my 
'5'^estlons. I certainly want you to answer as fully 
as you feel is necessary.

I was asking you at an earlier stage how 

you went about communicating to recruits what the 
guidelines should be in terms of the use of lethal 
force in apprehending felons who are unarmed?
A. The way I construe that, Mr. Days, and I
can respond this way, the lecture method, talking, 
the discussion method, that I presume is what you 
are asking. I really don't understand.

Q* All right. Let me try again. You are in
police academy and you have a group of recruits 

before you. And let's assume that the question is 
the use of lethal force to apprehend fleeing felons.

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In that context did h a v e ,  as a part of your

presentation, a discussion of techniques for 
apprehending unarmed fleeing felons?

A- Per se, yes, generally. But specifically
I did not delve into peculiarities because this is 
a legal subjec-t and should have been handled in 

depth by the legal instructor who provided them 
that instruction at the academy.

Q- Let's presume that the legal Instructor
says that Tennessee state law says, gentlemen,
Recruits and gentlemen, women I guess are recruits 
at this point, you may use lethal force to apprehend 
fleeing felons, but before doing that you must exhaust 
all reasonable legal alternatives. All right. And 
the legal advisor also tells the recruits that under 
the Memphis Police Department regulations, state 
law, is restricted to’ a certain extent and that fewer 
felonies are regarded'as Justifying the use of lethal 

force by officers, but that under both state law and 

under police department regulations there is this 

requirement of exhausting of non-lethal alternatives. 
All right. That is the predicate.
A. O.K.

Q. Then you have the police recruits before
you and the question arises of you on behalf of one

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' ! !of the recruits, Captain Coletta, we know what the 

legal advisor told us about reasonable non-lethal 

alternatives. What are they, what do we do in terms 
of police in regard to-tactics to carry out that 
requirement of exhausting non-lethal alternates.

That is not a legal question?

A . N o .
Q. That is a tactical question?

A . Yes.
Q. How do you go about communicating an

answer to that particular question?
A. Well, Mr. Days, the first thing I said

before, to approach the scene properly, to plan to 
develop their course of action prior to arriving on 

the scene, to devise, if it is a two man car, who 
will go where so that one will be aware of the other, 
where he will be, what his actions may be; and once 

they have decided upon their plan of action to 
approach the particular location contingent upon 
where it is located, what its physical structure 

and lighting is, whether it is daytime, nighttime, 
or whatever, and in approaching to be aware of 
anything because nothing is routine. Anything could 
happen, to approach it with caution, particularly 
a felony type call and then once they are on the

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scene to apprehend, first try to cover the exits, but 

if, for example, someone should escape, to do their 
utmost to apprehend or capture without using 
deadly force, to run after him, possibly that they 

can't catch him, to shout at him, to halt, if possible 
to shout at his partner to head him off, as you 
suggested, to utilize any means at their disposal 

^t that particular time to apprehend that subject.
If they are close enough, certainly they could 
resort to the use of a night stick possibly, but I 

don't know, but in some cases that non-lethal —
Q* Mr. Coletta, in the police manual that we
discussed earlier, is there not a section that relates 

to procedures, police officers should use in certain 

situations yith respect to the use of lethal force?
A.
Q.

There is a section on tactics in there. 
All right, could you find that section in

there?
A.
Q.

Page 4l, specific tactics.

Would it refresh your recollection if I 
directed your attention to page 39- Isn't that 
also .a place where tactics are discussed?

Yes, it is.

• 3o there is a discussion earlier than
Page ^1 with respect totactlcs?

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A
^es, sir, there is.

you Involved n^o
the manual on tactics? the section or

^®s, I was.

And how many pages In th^
devoted to manual areto this quest--fr,„^ question or tactics?

not certain.
Wsll, could you Inn l ->ou look and try to

I’ecollectlon? ^ ^e^^resh your

on-page 38 it dl«?
then also «tcusses it, hut it

"0 with buiiat eff
potential of projectll “ tlveness

taoti
I through page t6 .

It there, a discussion of tactic
-  «tear„s fro„ page 38 to „hat a ' ̂ , wnat, page ifs?

^o, sir, there -f .= a.not. There l<5 h -?
°I tactics with use of fip., Itcusslon
It goes Into® into cover. it a c e s n ' t  all d ,
with firearms it a *^=tlcs

It deals with tactics of a , 
orricer. ^ -Dollce
Q • O y

There...ls a discussion of t a c n  
38 to page What?., “

^5.

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tactics? \ j

A. 46.
Q, What techniques police officers should

use In apprehending fleeing felons that are unarmed? 
A. I don't recall, I would have to look. I'm
sure —

Well, would you look now and try to 
refresh your recollection?

A. Under the specific section of tactics.
It has it here that the tactics that a person can 
commit. It doesn't make any specific distinction 
over unarmed or armed, but it can be employed In 
either way.

Q. Does It say anything about non-lethal

alternative tactics for apprehending'fleeing felons?\ 
A. Not per se, no, sir.

---
Q. Does It say’ other than per se in that?
A. It says the unknown, the unexpected In

dealing with situations where police do not have 
positive information or initiated from minor actions, 
minor Infractions, disorderly conduct, family 
disputes
Q . That, Is talking about non --
A. It Is talking about tactics, that Is what
this section covers, tactics.

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Q. Is there an^ specific mention to the best

of your knowledge in that manual of what non—lethal 

alternate should be employed by an officer before

resorting to lethal f9rce?
No, sir, per se, no, sir.
Well, you have used the term per se, several

A.

Q.
times. 
A. That means explicitly in the way that I

use it-
Q, All right. What role does a police
officer's discretion play based upon your experience 

in the Memphis Police Department and your role of 
a teacher of recruits with respect to the use of lethc 

force; what role does discretion play in the 

decision of an officer to use lethal force to 
apprehend a fleeing felon who is unarmed?
A .  I would say it plays a major part.

Q.  And why would you say that?
A .  Judgment, discretion, term it what you

may,‘it is a very difficult subject to teach, and 

I'm not certain that you can even teach it. I'm 
not certain that you, at all thatyou can teach a 
man Judgment. It evolves from maturity, from 
experience, from a number of factors over which you 

may have no control.



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1 Q. Isn't the extent to which Judgment is

exercised is dependent upon what standards a person 
^s provided?

A. Certainly that, is part of the experience.

Q- Well, let's assume that we have an officer
who does not have a great deal of experience as a 
policeman, that is, does not have many years of 

service. Let's say we take a person who is several 
months out of the academy, several months on the force, 
to what extent is the judgment of that officer in 
terms of the use of lethal force against unarmed 
^^eelng felons circumscribed by some type of standards, 

certainly circumscribed by standards and circumscribed 
by state law?

A. In 1973, if my memory serves me right, we
had no policy regarding the policy of deadly force.
We were strictly governed by state law. I believe 
deadly force policy was instituted in February of 
197^1. ^

Let me direct your attention to a document 
and ask you whether you can Identify it?

s

MR. KLEIN: May I inquire what
that is.,?

MR. DAYS: I'm sorry, let me show
it to counsel before you look at it.

447



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'J M .
*3- (By Mr. Days) Can you Identify that'1 w
document, M r . ■ Coletta? ' ' V r'--• ■- :.• y'--;. ....n f.; • ■■•.',  ̂ .’■' i.

: ft ‘ ' '.■ ' '■ '■■ ' •'■ ■ ’ . ‘ ■' '■ '■ " • ’ ■'‘ "V.vi-'' . Yes, .1 had,.my attention diverted to .'fire-
arms r e v i e w  board,. I'm sorry, I guess that' is where ' '■ • . - o  ̂ C.

I was thinking February of ’7II.

' Based on yo.ur observing this. document ." do 
.you have any reason'^to change the'testlmony'-' that’-" ■ '■7 
you Just gave? • ■ ,

A- No, sir, not one lota. Not one lota.

.And your testimony is that ,there were no 
departmental regulations with respect to the use of^"- 
lethal force?

2../

A. No. No, I thought I clarified that'I had
in mind the establishment of the firearm review 

board, I believe, and I believe I said, If .my. memory./ 
•.serves, me correctly ,7;‘I will, .apologize no ,1 thla.^isf' ■. ' .--v- -yVir-->■•■
.wrong. It is dated 1972, w.hich concerns the use of 
firearms. • !

Q* • And is it a policy that also.articulates
‘.r ’ V .'- "• ,

the'fact that there'has to be an exhaustion; of ..y-' 
non-lethal^alternatives before using lethal‘force?
A...„ Ye.s,, It, ls,7' . ..

, ••• . g C-« \  . l '\ x  n / / y  ■ -* .

Q. ■ \You''areVengaged, or- you were engaged,
were you not, Mr. Coletta, as head of the firing 
range In teaching recruits how to use firearms?

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A.

Q.
Yes, sir. J

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And did that training involve teaching them

how to shoot at .human-beings? '̂ '  ̂::X, ■. .■;■ >:

• ••; Primarily-'pur,, obJ ective ...is {. to .shoot•■;.•.'V"v-‘-4';. 
accurately regardless-'.'of what the target, and not 

primarily teaching them departmental policy or the 

legal, aspects surrounding i t . ; Our_ primary-_obj ective ■:' 
'was teaching marksmanship i ' 'f .• i-»i

Q* In terms of.; teaching marksmanship, did you
use targets? ' •"^

■ A.,;'x'. :, . ■ Yes ,..we .dî Û̂ /',!'' '■: X-. • ■'•' '• ■ : ■'■' ■ •. ' • ;y ‘ ' ■/' ..A''’-' ' ; “■ r̂'' ,'0 ‘ '■-'O.*-''' >' * And did any.-iof. those targets, that' you " r'i;
used have conformities that were parallel to the
conformities of the human body? .X ■' - -

,.A.̂  ■■ ■ Many of-'them-do * ^

' Q. ' •■ And ;ln , termsivof the use of'that: target ,
: what :.yere you' trying-^to teach the . recruits jto do: ih'̂ r̂ ;̂

terms of shooting that^; tar g e t ' that represent ed • a .’• 'v.'
human figure? .

'A. ‘ To hit It.-f;  ̂ 'V'V’'■'t: '''--v '.
Q. To hit any particular part of the target? ':
A. Yes,. sir, certain mass. .;
Q.

■̂’aO
Q.

Certain-center-mass? ' <.. .t -. .-r- , . - , ■ ■■■ t • -r-
*t f ,/• • -'̂TfxX *. 1 • ■ ./ .I;; Yes',“ sir .*■

If one were considering a human body as

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opposed to the target^ where would the center mass of 
the body be?

A. Somewhere around the sternum, I ’m sure.
Q* I'm not a doctor, and if you could use a
more simple vernacular of the body.

A* This area between the chest and the
stomach.

Q.
A.

Q.

Between the chest and the stomach?
Yes, sir.

And can you indicate why your goal was

^^struct recruits to shoot that particular portion 
of the target? •,
A- Yes, sir.

Q- Would you,please?

A* Because of the fact of the mastery of a
hand gun is the most difficult to teach and to grasp. 

Proficiency with a hand gun is far' more difficult 

than obtaining proficiency with a shotgun or a rifle, 
and it is due to the physiological characteristics 

of the*person who must support the gun, and any human 
being having to support the weapon at arm's length 
is more unsteady than one supported by the shoulder 

and by the hand, so handguns are the most difficult 
to master. In attempting to master them, most common 
errors that are committed with the handgun are either

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shooting high or dlppJEng the front sight and shooting

low, or Jerking the trigger and Jerking It off to the 
left at what we call 7:00 o'clock position off of 
the target or anticipating the shot and bucking Into 

It and/or pushing It up to the 1:00 or 2:00 o'clock 
position, all of which the person who Is not familiar 
with the particular terminology may call flinching.

Q. Thank you. What does that have to do with
uslngthe center mass as the area recruits should 
learn to shoot at and hit?

A. It allows them that should they make an
error, which are common, that still they might hit 
their target and may Incapacitate or stop that person 

°r target or whatever. If you want to relate to that 
person, may stop that person from performing the 

Illegal act, but certainly in marksmanship It would 
indicate to them that that is the greatest area and 
best area to aim at to hit an area on the target.
Q. Let's assume for purposes of hypothesis
at this point, a recruit could be taught to shoot 
at parts of the body other than the center mass to 
which you have made reference.
A. I would not —

Q. Let me finish the question.
A. Excuse me.

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1 Q.
\ )

Formulation, if you would, or could shoot
the arm portion or the hand, would you, based upon 
your knowledge of Memphis Police Department policy 
and your own policies with respect to instructions

of recruits, would you teach that type of marksman­
ship?

No, sir, I would not.
Q- And why wouldn’t you?

Because I think it Is an Impossibility. 
There Is other factors —
Q. ,,would you entertain my hypothesis for a
while?

• Yes, sir, I will and be glad to throw a
little of my own In there if you d on’t mind.

*5* . Let's take mine first and then I will be
glad to entertain yours.

All right, sir.

Q- My hypothesis, you. In fact, Mr. Coletta,
as a skilled marksman,, are a person familiar with the 
use of the teaching of. firearms, could teach recruits 
to shoot arms and leg areas other than what you refer
to as the center mass?

■ 1A* . Are you saying that I could.

could, that is a hypothesis, and the 
question Is If that were possible would you do so.

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would you instruct recruits in that respect?
A. No, this would require qualification. It

would require qualifying. Certainly I would, 
certainly I, however, number one, we are bound by 
a number of variables under which we operate. One 

is a time factor. I think as I said before that it 
is possible to teach anyone within the time specified 
that we have to train recruits, and, in fact, is 
in my experience, it may be impossible to teach 
anyone to hit that particular target every particular 

time when you throw the other variables that come 

into play, and I guess you are applying this to the 
police work, so I throw it in. In addition we are 
bound by budgetary requirements. Now, I'm certain 

that the budgetary requirements are not the concern 
of this court, but it is my concern, and when you 
asked me would I teach, then I must say certainly 
I'm bound by the budgetary requirements, and it is 
a very real problem 'for m e , as a training 
administrator, we are bound by the quality of the 
students that we get, the quality and the aptitude 

that he possesses on the front end, so with all 
of these variables brought into play, for that 

reason I say that it' is impossible toteach a 
recruit at this time to be a marksman to the extent

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that he could hit a ii;in ’ s arm, a leg or any extremity 
of the body.

Q. O.K. Well, let's take a situation where a
person is armed and either confronting the officer or 

trying to flee. Isn't it true that the extent to which 
an officer can hit the center mass, that is that 

mid portion of the body, the greater the likelihood 
that the person who is unarmed will not shoot‘the 

officer as opposed to, for example, shooting a 
person, who is armed,.in the leg because his hand 

would still be free and he might shoot the officer, 
is that fair? Is that not fair?
A. Would you repeat that again. Maybe I
didn't follow the gist of it.

Q. If an officer is confronted with a suspect
who is armed, and let's assume that the suspect is 
either pointed toward the officer or running away, 
but has a weapon, and for all intents and purposes 
and to the knowledge of the officer, he'sable to, 

well, meets all of those requirements in the film, 
the ability and the opportunity and the Jeopardy 

factors there.
A. All right, sir.

Q. Is it not correctthat an officer who shoots
that center mass will- better able -- will better

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insure that he's not a/^ing to get shot by that 

person who is armed as opposed to if he shot the 
person in the arms or hand or leg or some other place? 

A. I can't predict that.
Q. • Why can't you predict that?
A. Because of the variables involved and the

effect of bullets on live tissue.
Q. Is it your assumption that a person, if a

person were shot in the leg as opposed to being shot 
in the stomach, that there wouldn’t be any expectancy 

that in the situation"where the person is shot in the 

leg that person might;be able to return the fire, 
whereas if the person.is shot in this mid portion 

and the person would be incapacitated to the extent 

that the weapon mlght^not be fired?
A. Wo, sir, I don't buy that at all.

'5* Then why?
A. I'm trying to find —
Q. I'm sorry. J
A. It doesn't matter where the person is shot
generally, specifically, yes, but generally, but the 
matter, what you shot, you know, there are a lot of 
variables, what you shot him with, the caliber, the 
projectile, et cetera, et cetera. Presuming all things 
to be equal, he shot him in the chest, the probability

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Q, 
A .

of* him becoming, I li^glne what you say Is neutralized 

rather than Incapacitated, because he's Incapacitated 
If you knock his leg out from under him.

Q. By neutralized, let me understand your
terminology, does that mean that the persons will not 

be able to return fire?

A. He is Immediately stopped from any further
action.

Including fire?
Any action.

Q. And incapacitation In your terminology
would be a less drastic impact upon the person than 
neutralization?
A. Yes, It would be. Now, the things, and

this evolves down again to the bullet effect on

people and it Is not a predictable factor balllstician
cannot predict'-what is going to happen. I think it • ^
Is more than psychological than anything. Just my 

own viewpoint that If a person Is shot that fact 
must register on his brain in order for him to 
immediately stop whatever act he is performing.
Q. All right. Now, based upon your experience
and your knowledge in the field, can one predict the 
extent to which a wound in one area of the body will 
have a more neutralizing effect than a wound in

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1 another oart of the bo/dy?
J

A. Yes, sir, you can.
'3. And can you Indicate the nature of that
progressive neutralizing effect in terms of areas of 

the body?
A. Yes, sir, I will try to. If you were to
strike a person in the head, for example, and it 
strikes the central nervousness, the brain, the 
control, then my guess, of course, is then you would 
neutralize him faster.

Q All right.
A. In the chest portion, I don't know, I'm

not a medical doctor.
Q. All right.
A. I can relate what I have seen from

experience.
Q. By'chest, do you mean from the base of
the neck down to the rib cage?
A. The stomach.
Q. _ The bottom of the ribcage?

A . Yes, sir.
Q. All right.
A. I don't really know, I'm not a doctor,
from the stomach, again I don't really know. All I 
can relate are my experiences on what I have read

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and what I have seen.
Q. And what have you concluded from that

exercise?
A. I have concluded that there is no projectile
that is in the hands of police at this time that will 
effectively neutralize a person or stop him instantane­

ously from performing another act.
Q. But if you will Indulge me, I believe the

question was, what are the relatively neutralizing 
effects based upon, whether a projectile hits various 
parts of the body, and we had gone from the head down 
to the chest area to the stomach. Is it clear that 

that mid portion will probably cause a person bo be 
more neutralized by a projectile than if that person 

were hit in the chest area?
A. i; If he were hit where?
Q. In the chest area.
A. In the chest he would be more neutral?

I couldn't say, yes. It depends on what it strikes.
It depends on the velocity of the projectile. It 

depends on a lot of things.
Q. All right. Well, why do you teach the
recruits to shoot at the central mass, if, in fact, 
it is possible that shooting a person in the leg 

might have a more neutralizing effect?

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A. It has grea?ter room for error. The probabili
of hitting that area when you hold center mass.
Q.
correct?
A.

O.K, So It Is the bigger target, Is that

es .
Q.
A.
Q.

Are you concerned with neutralizing people? 
I sure am.

And Is Ityour concern to neutralize 

people even when they are unarmed and pose no threat 
to officers?

A. You know, a police officer Is sworn to
uphold the law, that may sound trite and cliche, but 
It Isn't, that Is his duty, but that Is what he Is 
sworn to do. He must enforce the law by whatever 

reasonable means that are at his disposal, whatever 
' he' is allowed to do, whatever the law dictates’that ' ’ 
he should dp, whatever policy that the law allows 
him to. It is his duty to apprehend the person 
certainly, and we know and we perform acts every day 

which may, to us as an Individual, be distasteful.
It Is our duty, therefore, we must perform It.

Q* I ’m sure there is no disagreement here in
the court with the point that you Just made, Mr. 
Coletta.

DAYS: Your Honor, at this point

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for reliability- to be present.

Are you saying that it is not as accurate 
as the .38 as far as t'he man that is carrying it 
and as liability?
A . Yes, sir.

Captain, getting to the training program 
at the,academy, I think you testified yesterday 
relative to your role at the training academy?
A . Yes, sir.

And do you recall whether or not you were ' 
out there during the 36th, I believe it would be 

the 36th session, which would run from July the 30th 
of '73 to August 3rd of -- well, beginning July 30th, 
I think, running through September of '73?
A- Yes, sir, T was there.

All right. I'm going to hand you this 
document and ask you if you can identify it?

A* Yes, sir, this is a curriculum. It
appears to be the curriculum that was used for that 
school.

know whether or not officer Hymon 
1 attended; the- 36th session or not?
A. Yes, sir, he did .

Q * V7hat was the v/hole curriculum that was
used during that particular session, was it not?

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Yes, sir

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A.

Q. It shows the different hours, classes and
instructors, is that correct?
A.

Q.
A.

Yes, sir.

Did you follow that curriculum?
As closely as nossible.

MR. KLEIN: Your Honor, I ’m
going to move that that be made 
an exhibit to his testimony.

MR. DAYS: No objection. Your
Honor.

THE COURT; All right, let it 
introduced .

THE CLERK: Number 20.

(Whereupon, the said document 
^sferred to above was accordingly 

marked Trial Exhibit 20 and received 
in evidence.)

Q. (By Mr. Klein) Now, Captain, are you
familiar with the firearms review board?
A Yes, sir, I am.

What is your understanding of the function
«

of the firearms review board?
’A- it was instituted to review those
cases wherein the officers discharges his weapon;

GO.



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1 to make recommendations to the chief whether 

disciplinary action should be taken or whether the 
officer was justified.

Q* All right. Do you know when this was
implemented.

A. I believe it was February of *74.
Q. February of *7^?
A. Yes,sir.

Q. Now, does that mean in every case where
an officer used his weapon that he was subjected 
to the firearm review board and it would convene?

A. Yes, sir, every case, accidental discharge
on duty, off duty or whatever, except, of course, 
for hunting or target practice it did not include 
that.

Q. All right. Now, how deeply would the
board go into the matter when it would review it. 
Captain?

A. They would try to ascertain the fact to
see if the officer was justified, and that, of 
course, would require quite a number of inquiries.
One of the range personnel is assigned the task of

*■•?.*'*
screening the scene of physically observing the 
scene to report to the board of the physical 
characteristics of the incident, locations, and then

603



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A.
Q

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the board takes that [ J n t o  consideration as well as 

the statement of the officer, as well as his testimony 
or when he appears before it.
Q. All right.. i.Does the officer himself .

actually appear before the board?
A. Yes, sir, he does.

Q Do you know whether such a board convened
to study the situation involving officer Hymon in 
the shooting on October the 3rd of 197^ of Young 

Garner?
Yes, sir, it did.
Did you sit on that board?
Yes, sir, I did.

MR. DAYS: Your Honor, I would
object to this document as being 
self serving, since it was prepared 
by the defendant in this case. '

THE COURT: Mr. Klein.
MR. KLEIN: If Your Honor

please, they have offered testimony, 
of course, over my objection from 
others, from others who have testified 

about the situation Involved here 
whether the officer acted reasonably 
01’ not under the circumstances, and

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really. It must be,|^3ecause that is policy. Now, 

I don't know how else, did I personally present -- 
do I know the man that personally took It to the 
grand jury —  no, I don't.

MR. DAYS: I move to strike.
Your Honor.

.'THE COURT: All right, sir,
I'm going to sustain the objection 
insofar as this v/itness is concerned.
I understand that this witness has 
testified that as a matter of 
policy the matters are generally 

presented, but I'm sustaining the 
objection to any assumption or 
presumption by the witness or the 
court based on this witness's ' 

testimony with respect to grand 
Jury action.

MR. KLEIN: That is my problem,
V

Your Honor.

(By Mr. Klein) All right. Captain, let 
me ask you this question. You say you reviewed 
the reports, all the reports that were submitted in 
connection with this matter?
A . Yes, sir.

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196

Q. And that is part of your Job as a member

of the review board, is that correct, sir?
A. Yes, sir.
Q. All right. And assume we have the situation

on October the 3rd, 197^ wherein officer Hymon is 
called to the scene or called to a scene, which 
the scene h e ’s called to is 737 Vollentlne, which 

is a house right next door and to the west of a 
house designated as 739 Vollentine. And assume 

that this exhibit 6, which has been Introduced into 

evidence, is a scale model of the house and the 
backyard and the yard of the house behind it at 

739 Vollentlne.
A. Yes, sir.
Q. All right. An officer gets to the scene

and he is told by a next door neighbor that they 
are breaking in the house, meaning 739 Vollentlne. 
H e ’s with a partner. And he goes back to his 
partper, who is in the car, tells his partner that 

there is a robbery or burglary in effect. He 
gets his flashlight and oroceeds 'down the west 
side of.the house. His partner moves his car from 
'the middle of'the street up to the curb, radios 
in and gets out and proceeds around the east side 
of the house, that when the officer gets to a point

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197
which Is Just beyond'--the southwest corner of the

house and at a point where he is a few feet east of

a fence, a chickenwire fence, about three to three
and a half feet high, he hears the back door slam,
and he sees a person running out of the back door
and heading for a back fence and this fence is the
one I*m indicating here on which is the .back fence
on 739 Vollentlne, a chain link fence approximately
six and a half to —  five and a half to six feet
high. The officer has a flashlight in one hand and

his revolver in the other hand and when he sees the
person fleeing or running out of the back of the
house, he also notes that there is broken glass by
a window which is on the back side of the house. He

is on a call which indicates that it is a prowler
in the house. He's been directed to the house by
those people next door, which are the ones that
made this initial call to the police, the people
at the police department and at this time the subject 

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or the person who comes out of the back door has 
gone to a point at the back fence, and this point 
is right at the corner of an out building, which 
would be the:; southeast corner of the out building.
The person is stopped and with his hands up on the 
fence, but he is in ? stooping position or squatting

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1 position. The office^ at that point seeing the person 

at the fence yells halt, police, or words to that 
effect and then yells over to the partner who is 
proceeding around the. east side of the house, too, ■ 
h e ’s on the fence, get him, or words to that effect, 
and the subject who was a.t the fence had momentarily 

stopped then begins to. Jump or spring over the 

fence. The officer then takes, he has his firearm 
in his left hand. He,then fires.

Now, you can also assume that officer 
is not familiar with^^ the neighborhood --

MR. BAILEY: Your Honor, we

are going to ob.ject to that clearly.

That was not one of the bits of 
evidence that has been produced that 
he wasn't familiar with the 
neighborhood,. ,

MR. KLEIN: In the depositi.on
that was read o/' Officer Hymon as 
part of their proof he indicated that 
he was in a ward which was not his 
regular ward.

■ THE COURT; Has that been 
introduced to the court at this time 
^nd is it a part of the proof and

198

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the characti^isatlon of the assumption,

I'm overruling that the witness is 
explaining his answer and part of what 

the testimony*will be, whether the 
answer will be based upon the assumed 

question has been made or not, so I'm 
overruling your objection. You may 

proceed.
Q. (By iMr. Klein) Oo ahead.
A. The officer is physically barred from the
area by a fence so that he can't get to him. The 
officer has shouted to his partner for help, and 

evidently that help did not arrive. The officer 
saw that the subject was attempting to scale or 
vault the fence and that in the event that he should 

succeed then probably-he would escape and feel like 
that -if' he could see,‘‘that in the light, which in 

a city you stated it was dark, but I know that in 
a city that light is reflected and that certainly 
if he*could observe, that he could observe the 

fact that the man was scaling the fence and 
attempting to escape, and that in my opinion, should 
he have been successful in scaling the fence, I 
don't think that the 'officer would ever, have caught 
him, so I think he was Justified for those reasons.

2Qll

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Q. Well, is Ifj i
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a decision that an officer 
has to make in a- second or split second, would 

that be a fair characterization of the circumstances? 
A. Yes, sir, I think it would.
Q- And is the officer called upon to use

best Judgment under those circumstances?

A. Yes, sir, that's correct.

Q* Is that what h e ’s taught at the academy?
A . Yes, sir, it i s .

0-• Let me go on to another subject if I
may. Well, I will talk about the —  are the 

principals which are taught at the police academy, 
are they consistent with v/hat you have learned 
^n your research, your study, your attending of 
various seminars, the FBI academy, are these 

principles which are taught here at the Memphis 
Academy similar to those that are taught elsewhere?

MR. DAYS: Objection, Your Honor,
to the leading nature of the question.

THE COURT: I will again, Mr.
Klein, ask you to phrase your questions 
in such a manner that an answer is not 
®i^ggested in the form, and inherent in 
that is that not to phrase a long 
question but is or is not that right,

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that »-hA ,..4-* " “ "^33 in 
respond in h-fo
the ' than ■

a „ » e n  he saj^geeted.
KLEIN- Tf .• ^ ” J“=t trying to
the „nttar. j, ^

‘hen "^"hing,

fBy Mf. Klein) Let „e
h“= = tlon canr , ‘hit

’ prlneipiee n
- ‘- ‘Piet that yoa teaoh at th " "

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' assume, tell °“ahatlon t o r  it j

' - 1 1  PS What that 1 3 , .
There I s  a u ^

enforcement of ^ h n o w e d g e  among law

— - P t  with- What 13 within the ^  " "
- h y  Of knowledge and that hod
been developed by nume knowledge has

° y  numerous sources fr.

-.secernent agenclee "
universities fr.  ’Tronj police scientists t
"Irtt say or pollep i„ the fle,n ’

in that parti , - e  educational^Parolcular field or
- -  —  Of knowledge that we tea '
-  insistent. Pnohably the 1 ^
“  is When we get mt'into policy our.
-llPles and Procedures and ’ " "  — “laP
r that wouldn’t-
from any other ar-ncy. ^

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