Brief for Defendant-Appellee on Remand from the US Supreme Court

    NO. 81-5605

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, et al., 
Plaintiff-Appellant,

™ v s .

MEMPHIS POLICE DEPARTMENT, et al., 
Defendant-Appellees.

Appeal from the United States District Court for the 
Western District of Tennessee 

Western Division

BRIEF FOR DEFENDANT-APPELLEE 
ON REMAND FROM THE SUPREME COURT 

OF THE UNITED STATES

Henry L. Klein 
Staff Attorney 
770 Estate Place 
Memphis, Tennessee 38119 
(901) 761-1263

Clifford D. Pierce, Jr. 
City Attorney

Charles V. Holmes
Sr. Assistant City Attorney

Paul F. Goodman 
Assistant City Attorney 
314 - 125 N. Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614
Counsel for Defendant-Appellee



No. 81-5605

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, et al. , 
Plaintiff-Appellant, 

vs.
MEMPHIS POLICE DEPARTMENT, et al., 

Defendant-Appellees.

Appeal from the United States District Court for the 
Western District of Tennessee 

Western Division

BRIEF FOR DEFENDANT-APPELLEE 
ON REMAND FROM THE SUPREME COURT 

OF THE UNITED STATES

Henry L. Klein 
Staff Attorney 
770 Estate Place 
Memphis, Tennessee 38119 
(901) 761-1263

Clifford D. Pierce, Jr. 
City Attorney

Charles V. Holmes
Sr. Assistant City Attorney

Paul F. Goodman 
Assistant City Attorney 
314 - 125 N. Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614
Counsel for Defendant-Appellee



TABLE OF CONTENTS

Page
Table of Cases........................................ ii
Introduction.......................................... 1
Argument.............................................. 2
Conclusion............................................ 7



TABLE OF CASES

Page
Beech v. Melancon, 465 F.2d 425 (6th Cir.

1972), cert, denied 409 U.S. 1114, 93 S.Ct.
927 (1973)

Cunningham v. Ellington, 323 F. Supp. 1072 
(W.d'". Tenn. 1971)

Garner v. Memphis Police Department,
600 F.2d 52 (6th Cir. 1979)

Garner v. Memphis Police Department 
710 F.2d 240 (6th Cir. 1983)

Johnson v. State, 173 Tenn. 134, 114 S.W.2d 
819 (1938)

Love V. Bass, 145 Tenn. 522, 238 S.W. 94 (1921)
Mattis V. Schnarr, 547 F.2d 1007 (8th Cir. 1976), 
vac. sub nom. Ashcroft v. Mattis, 431 U.S. 171 
97 S.Ct. 1739 (1977) rehearing denied 433 U.S. 
915, 97 S.Ct. 2990

Owen V. City of Independence, 445 U.S. 622,
100 S.Ct. 1398 (1980)

Qualls V. Parrish, 534 F.2d 690 (6th Cir. 1976)
Reneau v. State, 70 Tenn. 720 (1879)
Scarbrough v. State, 168 Tenn. 106, 76 S.W.2d 

106 (1934)
State V. Boles, 598 S.W.2d 821 (Tenn. Crim. App. 

1980)

3, 4 

2, 4

5-6

2

2

3, 4

5
3
2
2

Tennessee v. Garner, 471 U.S. 
1694 (1985)

, 105 S.Ct.

Wiley V. Memphis Police Department, 548 F.2d 
1247 (6th Cir. 1977), cert, denied 434 U.S. 
822, 98 S.Ct. 65

STATUTES
Tenn. Code Ann. §39-3-401 (former §39-901) 
Tenn. Code Ann. §40-7-108 (former §40-808)

ii

3-5

1

2



INTRODUCTION

The defendant herein ("City of Memphis" or "City" 
hereinafter) acknowledges that its police shooting policy 
authorized Officer Hymon to shoot at a fleeing suspect if the 
officer had probable cause to believe that the suspect had 
committed a first-degree burglary* and all other means of 
apprehension had been exhausted. This policy did not 
require, as the Court now does, that the officer also have 
probable cause to believe that the suspect inflicted or 
threatened to inflict serious physical injury on the officer 
or a third party. Insofar as the brief of plaintiff- 
appellant argues that this was the City's policy on October 
3, 1974, the City agrees.

The City concedes that the Question Presented and the 
Statement of the Case are essentially as set forth in 
plaint iff-appellant's brief on remand from the Supreme Court 
of the United States.

♦Defined by Tennessee Code Annotated §39-3-401 as "the 
breaking and entering into a dwelling house, or any other 
house, building, room or rooms therein used and occupied by any person or persons as a dwelling place or lodging either 
permanently or temporarily and whether as owner, renter, 
tenant, lessee or paying guest, by night, with intent to 
commit a felony."



ARGUMENT
At the time this cause of action arose, Tennessee's 

deadly force statute (Tennessee Code Annotated §40-7-103 
(formerly §40-808)), as interpreted by the Tennessee courts,
permitted an officer to use force that could result in death
in preventing the escape of a person he was attempting to 
arrest if (1) he reasonably believed that the person had 
committed a felony; (2) he notified the person of his intent
to arrest him, and (3) he reasonably believed that no means
less than such force would prevent the escape. Johnson v. 
State, 173 Tenn. 134, 114 S.W.2d 819 (1938); Scarbrough v.
State, 168 Tenn. 106, 76 S.W.2d 106 (1934); Love v. Bass, 145 
Tenn. 522, 238 S.W. 94 (1921); Reneau v. State, 70 Tenn. 720 
(1879), and State v. Boles, 598 S.W.2d 821 (Tenn. Grim. App. 
1980) .

The constitutionality of Tenn. Code Ann. §40-7-108 has 
been considered on several occasions. In the case of 
Cunningham v. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971),
the plaintiff contended that the statute was unconstitutional 
on its face because it permitted the use of cruel and unusual 
punishment in violation of the Eighth Amendment; it was 
unconstitutionally overbroad; it was an unconstitutional 
incursion with respect to a person's rights to trial by jury, 
confrontation of witnesses and assistance of counsel, and it 
violated the due process clause of the Fourteenth Amendment. 
After considering each argument, the three-judge panel

2



concluded that §40-7-108 was not unconstitutional on its face 
and, further, that any changes to this rule allowing the use 
of deadly force should be left to the state legislature.

The statute was also upheld by the United States Court 
of Appeals for the Sixth Circuit in Beech v. Melancon, 465 
F.2d 425 (6th Cir. 1972 ), cert. denied, 409 U.S.1114, 93 
S.Ct. 927 (1 973), and Qualls v. Parrish, 534 F.2d 690 (6th
Cir. 1 976). In both of these cases the Court of Appeals 
found the statute to be constitutionally sound.

In 1976 Mattis v. Schnarr, 547 F.2d 1007, 1009 (8th Cir. 
1976) held that Missouri's deadly force statute, which was 
identical to Tennessee's, was unconstitutional "as applied to 
arrests in which an officer uses deadly force against a 
fleeing felon who has not used deadly force in the commission 
of the felony and whom the officer does not reasonably 
believe will use deadly force against the officer or others 
if not immediately apprehended." (Er̂  banc decision with 
three judges dissenting.)

In 1977 Wiley v. Memphis Police Department, 548 F.2d 
1247 (6th Cir. 1977) cert, denied. 434 U.S. 822, 98 S.Ct. 65, 
upheld a judgment for defendant police officers who had fired 
at and killed plaintiff's decedent, who had been fleeing from 
a burglary of a sporting goods store. With regard to 
Tennessee's deadly force statute, the court stated that the 
officers;

had a right to assume that the statute 
was constitutional. It had been twice 
so declared in this Circuit, first by



the three-Judge Court [in Cumujigham, supra] and later by this Court [in Beech, 
supra] , and its invalidity, or that of a 
similar statute, up to that time had never 
been declared by any Court. The plaintiff 
has not cited a single case to the 
contrary decided prior to the burglary 
involved in the present case [incident of 
January 8, 1972],

548 F.2d at 1251.
The court acknowledged that Mattis, supra, was contra to 

the Sixth Circuit decisions, but srongly criticized Mattis as 
an aberration, as follows:

The Eighth Circuit is the only Court to 
our knowledge which has ever held that 
such a statute, which is so necessary even 
to elementary law enforcement, is 
unconstitutional. It extends to the felon 
unwarranted protection, at the expense of 
the unprotected public.
We agree with the dissent in the Eighth 
Circuit case (Mattis v. Schnarr), which was highly critical of the majority opinion for 
not following the decisions of other 
Circuits and for embarking on a new course 
which should have been left to the state 
legislatures where it belongs.
The legislative bodies have a clear state 
interest in enacting laws to protect their own citizens against felons, and a right, 
if not a duty, to do so. When the burglar escapes pursuit he is free to commit other 
felonies. The dissent appropriately 
pointed out:
"In 1934 the ALI, in its First Restatement 
of Torts, modified the common law principle 
permitting the use of deadly force to effect the arrest of a felon. Restatement 
(First) of Torts & 131 (1934). This 
modification was abandoned in 1948, 
however, and the common law rule was readopted. The 1966 Appendix to the Second 
Restatement of Torts justifies this 
abandonment on the grounds that the

4



modification contained in § 131 had, from 
its inception, lacked any support other 
than dicta and argument by analogy."
The dissent further states;
"There is no constitutional right to commit 
felonious offenses and to escape the 
consequences of those offenses. There is no 
constitutional right to flee from officers 
lawfully exercising their authority in 
apprehending fleeing felons."
The majority opinion of the Eighth Circuit 
in Mattis does not suggest how law 
enforcement officers are to make the 
on-the-spot constitutional analysis called 
for by its proposal and still react quickly 
enough to meet the exigencies of an 
emergency situaiton. How can a police 
officer ever know, reasonably or otherwise, 
whether the felon will use force against 
others if he is not immediately apprehended? It is clearly the prerogative 
of the state legislature to decide whether 
such restrictions on the use of force are 
consonant with public policy.

Two years later, in Garner v. Memphis Police Department, 
600 F.2d 52 (6th Cir. 1979), the court remanded to the 
District Court for consideration of these two questions inter 
alia;

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

2. If not, is a municipality's use of deadly 
force under Tennessee law to capture 
allegedly nondangerous felons fleeing from 
nonviolent crimes constitutionally 
permissible under the fourth, sixth, eighth 
and fourteenth amendments?

The first question was answered in the negative by Owen 
V. City of Independence, 445 U.S. 622, 100 S.Ct. 1398 (1980). 
The second question was answered in the negative by Garner v.



Memphis Police Department  ̂ 710 F.2d, 240 (6th Cir. 1983),
sustained sub. nom. Tennessee v. Garner, 471 U.S._____, 105
S.Ct. 1694 )1983. But it does not follow that the City is 
liable herein.

Obviously only an omniscient city official or city 
attorney could have predicted, in 1974, what the court would 
hold in 1983 in Garner II, 710 F.2d 240. To hold the City of 
Memphis liable herein in damages would be to adopt a rule of 
strict liability in tort, as the concept of fault must be 
totally ignored to reach such a result.

The City of Memphis is guilty of attempting to operate a 
police department with an aim of preventing and solving 
crimes and apprehending criminals, promulgating a policy much 
narrower than the state statute which authorized deadly force 
to apprehend fleeing felons, and following the pre-1983 
dictates of the United States Court of Appeals for the Sixth 
Circuit. The City herein did not affirmatively promulgate a 
totally new policy, ordinance, or practice, as was the case 
in Owen, but merely adopted a police policy that represented 
its best attempt to constitutionally narrow the state deadly 
force statute. At least in the limited instance where a 
municipality, through its officials, is relying on the 
dictates of a state statute which had been upheld by the 
United States Court of Appeals on several occasions, the city 
must be entitled to qualified immunity. To apply strict 
liability in such a case is to apply Owen v. City of 
Independence, supra, to create an absurd result.



CONCLUSION

The City of Memphis submits that Owen v. City of 
Independence^ supra, does not require a finding of liability 
herein, that the City is entitled to immunity where its 
policy was authorized by state statute which had been upheld 
several times by the United States Court of Appeals for the 
Sixth Circuit, and that the judgment below in its favor 
should be affirmed.

Respectfully submitted.

Henry L. Klein 
Staff Attorney 
770 Estate Place 
Memphis, Tennessee 38119 (901) 761-1263

Clifford D. Pierce, Jr. 
City Attorney

Charles V. Holmes
Sr. Assistant City Attorney

Paul F. Goodman 
Assistant City Attorney 
314 - 125 N. Mid-America Mall 
Memphis, Tennessee 38103 (901) 528-2614
Counsel for Defendant-Appellee



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief for 
Defendant-Appellee on Remand have been served by placing same 
in the United States mail, postage prepaid, addressed to 
Steven L. Winter, 16th Floor, 99 Hudson Street, New York, New 
York 10013 and Walter L. Bailey, Jr., Suite 901, Tenoke 
Building, 161 Jefferson Avenue, Memphis, Tennessee 38103 this 
17th day of July, 1985.

Assistant City Attorney