Garner v. Louisiana Motion for Leave to File and Supplemental Brief for Appellant

    IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 77-1089

CLEAMTEE GARNER, ET AL. ,
Plaintiff-Appellant,

VS.
MEMPHIS POLICE DEPARTMENT, ET AL., 

Defendants-Appellees.

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

Western Division

MOTION FOR LEAVE TO FILE SUPPLEMENTAL 
BRIEF AND SUPPLEMENTAL BRIEF 

FOR APPELLANT

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
STEVEN L. WINTER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

WALTER L. BAILEY, JR. 
Bailey, Higgs & Bailey 
161 Jefferson Avenue 
Memphis, Tennessee 38103

AVON N. WILLIAMS, JR.
1414 Parkway Towers 
Nashville, Tennessee 37219
Counsel for Plaintiff-Appellant



IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 
NO. 77-1089

CLEAMTEE GARNER, ET AL,
plaintiff-Appellant

VS.
MEMPHIS POLICE DEPARTMENT, ET AL,

Defendants-Appellees.

On Appeal from the United states District Court for the 
Western District of Tennessee 

Western Division

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

Pursuant to Rule 28(c) of the Federal Rules of Appellate 

procedure, Appellant respectfully moves the Court for leave to file 

the attached Supplemental Brief. in support of this motion we show 

the following:
1. The Brief for Appellant in this case was filed on 

May 25, 1977. Subsequently, on June 29, 1977, the United States 

Supreme Court decided Coker v. Georgia, 433 U.S. 584 (1977). Coker 
involves the constitutionality of the imposition of the death pen­

alty for the crime of rape. in deciding that issue, the Court 
dealt with questions regarding the excessiveness and disproportion- 

ality of the use of death as a chosen legislative response to



criminal activity not involving the loss of human life. These 
principles are of direct relevance to the issues raised in this 

case regarding the use of deadly force to apprehend fleeing felony 

suspects who pose no threat to human life.
2„ On June 6, 1978, the Supreme Court decided Monell v-

New York City Dept, of Social Services, _____U.S. _____ , 5 6 L.Ed.
2d 611, 98 S.Ct. _____  (1978). in Monell, the Court held that
municipalities are "persons" within the meaning of 42 U.S.C. §1983, 
overruling that portion of Monroe v. pape, 365 U.S. 167 (1961). 
in doing so, it set out the standards under which municipal lia­
bility is to be judged under §1983. The issue of the liability 
of the City of Memphis in this case was first raised in the com­
plaint on a §1983 theory; it was preserved on appeal on the theory 

that the court has jurisdiction under 28 U.S.C. §1331. Thus, the 
standards set out in Monell now control the decision of the muni­

cipal liability question in this case.
3. Both questions— that of the excessiveness and dis- 

proportionality of the use of deadly force in this case and of the 

liability of the City of Memphis for the actions of its police 

officers— are of the sort that turn on the unique facts of each 

case. in light of these decisions, this supplemental brief is 

necessary to put before the court both the appropriate legal 
doctrine and the necessary factual information contained in the 

record for the disposition of the issues raised in this appeal.

2



WHEREFORE, for the foregoing reasons, appellant prays 

that he be given leave to file the attached Supplemental Brief.

Dated: This 31 day of January, 1979.

JAMES M 0 NABRITT, III 
CHARLES STEPHEN RALSTON 
STEVEN L. WINTER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

WALTER Lo BAILEY, JR. 
BAILEY, HIGGS & BAILEY 
161 Jefferson Ave.
Memphis, Tennessee 38103

AVON N. WILLIAMS, JR.
1414 Parkway Towers 
Nashville, Tennessee 37219

3



INDEX

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

ARGUMENT
I. IN LIGHT OF THE DECISION IN COKER v. GEORGIA,

435 U.So 584 (1977), THE USE OF DEADLY FORCE 
TO APPREHEND AN UNARMED FLEEING FELON WHO 
PRESENTS NO DANGER TO THE ARRESTING OFFICER 
OR OTHERS IS INHERENTLY EXCESSIVE AND VIOLATES 
THE DUE PROCESS CLAUSE..........................

II. THE USE OF DEADLY FORCE IN THIS CASE WAS 
EXCESSIVE AND UNREASONABLE UNDER THE 
CIRCUMSTANCES...................................

III. UNDER MONELL, THE CITY OF MEMPHIS IS LIABLE 
FOR HAVING CAUSED THE DEPRIVATION OF EDWARD 
EUGENE GARNER'S CONSTITUTIONAL RIGHT NOT TO 
BE SUBJECT TO THE USE OF EXCESSIVE AND 
UNREASONABLE FORCE BY MEMPHIS POLICE 
OFFICERS............. . .........................

CONCLUSION



Table of Authorities

Cases: Pa9e
Arroyo v. Schaefer, 548 F.2d 47,50 and n. 3

(2d Cir. 1977).........................................  4
Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972)......  3
Carter v. Carlson, 447 F.2d 358 (D.C. Cir.

1971) rev'd on other grounds sub nom., carter
v. District of Columbia, 409 U.S. 418 (1973)... 3

Coker v. Georgia, 433 U.S. 584, 592 (1977)........ 1,4,5,6
Fitzke v. Shappel, 468 F.2d 1072 (6th Cir. 1972).. 3

Furman v. Georgia, 408 U.S. 238, 331 (1973)......  4

Gates v. Collier, 501 F.2d 1291, 1319-20 (5th
Cir. 1974)...................................    23

Gregg v. Georgia, 428 U.S. 153 (1976).............  5
Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974).. 3
Hamilton v. Chaffin, 506 F.2d 1228 (5th Cir. 1975) 3
Howell v. Cataldi, 464 F.2d 272 (3rd. Cir. 1972)... 3,4

Jackson v. Allen, 376 F.Supp. 1393 (E.D. Ark.
1974) ........    3,4

Jenkins v. Averett, 424 F-2d 1228 (4th Cir. 1970). 3

Johnson v. Glick, 481 F.2d 1028 (2d Cir.) cert. 
denied sub nom. Employee Officer John #
1765 Badge Number v. Johnson, 414 U.S. 1033
(1973)........         3,4

Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975).... 18
Mattis v. Schnarr, 404 F.Supp. 643, 651 (E.D. Mo.

1975) , revs'd., 547 F„2d 1007 (8th Cir. 1976), 
vacated and remanded on the ground that no 
case or controversy existed, 431 U.S. 171
(1977).....      8

-ii-



pages

a Mattis v. Schnarr, 547 F.2d 1007, 1019 (8th Cir.
1976) vacated and remanded on the ground that 
no case or controversy existed, 431 U.S. 171
(1977) . ..........................................  5,6,7

Monell v. New York Dept, of Social Services, ____
U.S. , 56 L.Ed.2d 611, 98 S.Ct. _____
(1978) ..........................................  2,20-21

Morgan v. Labiak, 368 F.2d 338 (10th Cir. 1966)... . 3-
Petition of Kinsman Transit Co., 338 F.2d 708,

724 (2d Cir. 1964)..............................  21
Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971).. 3

Watson v. City of Memphis, 373 U.S. 526, 537
(1963)...........    23

Wiley v. Memphis Police Dept., 548 F.2d 1247
(6th Cir. 1977)....  2,6,7,17-18

Williams v. Edwards, 547 F.2d 1206, 1212-13
(5th Cir. 1977).......       23

OTHER AUTHORITIES;
Criminal Justice Letter, Vol. 10, No. 2, 6

(Jan. 15, 1979)...................     21
W. Prosser, Law of Torts 172, 266 (4th Ed. 1971). 19

STATUTES:
42 U.S.C. § 1983............................  20

-iii-



IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 
NO. 77-1089

CLEAMTEE GARNER, ET AL,
Plaintiff-Appellant

VS.
MEMPHIS POLICE DEPARTMENT, ET AL,

Defendants-Appellees.

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

Western Division

SUPPLEMENTAL BRIEF FOR APPELLANT

This is a supplemental brief in a suit filed under 42 

U.S.C. §1983 involving the use of deadly force by a police officer 
in apprehending an unarmed, fleeing felony suspect. Several of the 

issues raised in this case are affected by two recent decisions of 
the united States Supreme Court. They are: Whether, in light of
the decision in Coker v. Georgia, 433 U.S. 584 (1977), the use of 

deadly force to apprehend an unarmed fleeing felony suspect who 

presents no danger to the arresting officer or others is inherently 

excessive and violates the Due process Clause; and whether, under



Monell v. New York Department of Social Services, _____  U.S. _____

56 F.Ed 2d 611 , 98 S.Ct._____ (1978), the City of Memphis is
liable for having caused the deprivation of Edward Eugene Garner's 

constitutional right not to be subject to the use of excessive 

and unreasonable force by Memphis police officers. in addition, 

because these questions are so integrally related to the facts 

of the case, and because the appellees rely so heavily on a 
version of the facts not supported by the record in this case, 
this supplemental brief deals with the additional question whether, 
under the circumstances, the use of deadly force in this case was 

excessive and unreasonable.

I. IN LIGHT OF THE DECISION IN COKER v. GEORGIA. 435 U.S. 584 
(1977) , THE USE OF DEADLY FORCE TO APPREHEND AN UNARMED 
FLEEING FELON WHO PRESENTS NO DANGER TO THE ARRESTING OFFI­
CER OR OTHERS IS INHERENTLY EXCESSIVE AND VIOLATES THE DUE 
PROCESS CLAUSE

in his concurring opinion in Wiley v. Memphis police

Dept.. 548 F .2d 1247, 1256 (6th Cir. 1977), Judge McCree restated

the applicable law in this Circuit:
On several occasions, [the Sixth Circuit has] approved 
a rule that permitted the use of deadly force by police 
officers to apprehend a suspected felon when the felon 
appeared to present a threat to human life.

Id. The reasonableness of the use of deadly force depends on

whether:
There is sufficient evidence in the record to support 
the conclusion that the fleeing felons in this case 
did present an apparent threat to human life....

Id. The instant appeal presents a case where the fleeing felon
clearly posed no threat to the arresting officer or others. Thus,

1/ See Point II, infra.

2



it presents the question whether the use of deadly force under 

these circumstances is inherently excessive and, therefore, un­

constitutional .
The Due process Clause, as well as the Eighth Amend­

ment, imposes a standard of reasonableness upon the conduct of 

agents of the state. Essentially, that standard requires that 
adverse state action be commensurate to the scope of the evils 
against which the state can legitimately seek protection. in 
the context of the use of force by the police it is incontrover­

tible that excessive force violates the victims due process 
2/rights.

[Q]uite apart from any "specific" of the Bill of 
Rights, application of undue force by law enforce­
ment officers deprives a suspect of liberty with­
out due process of law.

Johnson v. Glick, 481 F.2d 1028, 1032 (2nd Cir.), cert, denied, 
414 u.S. 1033 (1973). Due process, then, includes the "right of 

personal security" and protects "the individual's physical integ­
rity." Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir. 1970).

2/ Virtually every circuit has so held, though some of the pre- 
Johnson cases have relied on the Fourth or Eighth Amendments. These 
cases indicate that there is a generalized right not to be subject 
to unnecessary or excessive force on the part of any officer of the 
state. See Johnson v. Glick, 481 F.2d 1028 (2nd Cir.), cert, denied 
sub nom. Employee-Officer John #1765 Badge Number v. Johnson, 414 
U.S. 1033 (1973) (prison guard); Howell v..Cataldi, 464 F.2d 272 (3rd 
Cir. 1972) (police officers); Jenkins v. Averret, 424 F.2d 1228 (4th 
Cir. 1970) (police officer); Hamilton v. Chaffin, 506 F.2d 904 (5th 
Cir. 1975); Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971) (prison 
guards); Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) (police officer) 
Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974) (judge); 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 sub nom., Carter v. 
District of Columbia, 409 U.S. 418(1973); Fitzke v. Shappel, 468 F.2d 
1072 (6th Cir. 1972) (denial of medical care); Jackson v. Allen, 376 
F.Supp. 1393 (E.D.Ark. 1974).

3



This right is breached any time that a police officer employs 

unnecessary and, therefore, excessive force. See generally, 
Johnson, supra, 481 F.2d at 1033. This is so even if the use 

of such force is in furtherance of a legitimate police action.
See, e.g., Jackson v. Allen, 376 F.Supp. 1393 (E.D.Ark. 1974) 
(prison guards).

Excessiveness is the governing constitutional standard 
not only under the Fourteenth Amendment's due process clause, but 

also under the Eighth Amendment's prohibition against the use of 

"cruel and unusual punishment." Coker v. Georgia, 433 u.S. 584,592 

(1977); Furman v. Georgia, 408 U.S. 238, 331 (1973) (Marshall, J. 
concurring). Thus, those courts that have analyzed the issue of 
excessive police force under the Eighth Amendment have applied 
the same standard found in the due process cases, holding that 
the use of excessive force in situations where the police were 
privileged to use some measure of force violates the Eighth Amend-

3/
ment. See, e.g., Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972).

3/ in cases arising in the penal context, the courts have acknow­
ledged the essential identity of the standards applied under both 
the Due process Clause and the Eighth Amendment. Arroyo v. Schaefer, 
548 F.2d 47, 50 and n. 3 (2d Cir. 1977). At least one judge, how­
ever, thinks that the Due process Clause posits a higher standard 
governing the use of force by officials of the state. Clemmons v. 
Greggs, 509 F.2d 1338, 1340-41 (5th Cir. 1975) (Brown, C.J. dis­
senting) •

4



in deciding whether the use of deadly force to effect 
the "arrest" of a non-violent fleeing felon is permissible under 
the Due process Clause, the court, therefore, must look to and 

take guidance from the relevant Eighth Amendment cases on the 

excessiveness of death as a legislative response to criminal 
action. in Coker v. Georgia, supra, the Court ruled that the 
imposition of death as a punishment for the crime of rape vio­

lated the Eighth Amendment. The Court started from the premise 
that in Gregg v. Georgia, 428 U.S. 153 (1976), it had

...firmly embraced the holdings and dicta from prior 
cases...to the effect that the Eighth Amendment bars 
not only those punishments that are "barbaric" but 
also those that are "excessive" in relation to the 
crime committed. under Gregg, a punishment is "ex­
cessive" and unconstitutional if it...is grossly out 
of proportion to the severity of the crime.

433 U.S. at 591-92. The Court went on to note the exceptional sev­

erity of the crime of rape: "Short of homicide, it is the 'ulti­
mate violation of self.'" Id. at 597. Nevertheless, it held that

...the death penalty, which "is unique in its severity 
and irrevocability," [Gregg,] 428 U.S. 187, is an ex­
cessive penalty for the rapist who, as such does not 
take human life.

Id. at 598-
Clearly, the questions posed by Coker and this case are 

not identical. One involves the constitutionality of a punishment 

inflicted after trial with all the due process safeguards, the 
other, that of the constitutionality of the use of deadly force 
by the police in the field. But, these questions are not unrelated 
either. When a police officer is confronted with a situation where 

the actions of the victim— either while committing a felony or 
other crime, while fleeing a crime, or otherwise--threaten his 

life or that of another "the interests of the state in protecting 
the lives and safety of its citizens,..." Mattis v. Schnarr, 547

5



F.2d 1007, 1019 (8th Cir. 1976), vacated and remanded on the

ground that no case or controversy existed, 431 U.S. 171 (1977), 

coupled with the immediate nature of the need for action, justi­

fies the use of deadly force and the resulting imposition of 
death without the panoply of due process safeguards. id_. But 

absent the life threatening circumstance, the state's interest 
in the use of deadly force pales, what is presented then is the 
lesser state interest in law enforcement generally. in that case, 
death— which "is unique in its severity and irrevocability,"— is an 
excessive state response.

Both the district court in Mattis v. Schnarr, 404 F.Supp. 
643, 651 (E.D.Mo. 1975), revs'd, 547 F.2d 1007 (8th Cir. 1976), 
vacated and remanded on the ground that no case or controversy 

existed, 431 U.S. 171 (1977), and this court in Wiley v. Memphis 
Police Dept., 548 F.2d 1247, 1252 (6th Cir. 1977), argued that 

the determination of which crimes are serious enough to warrant 
the authorization of the use of deadly force by apprehending 

police is an exclusively legislative decision. But the determin­

ant of what punishment fits a particular crime is no less an ex­

clusively legislative function. That notwithstanding, the Supreme 

Court in Coker measured the legislative determination against the 

requirements of the Eighth Amendment and its prohibition of ex­
cessive punishments, in'doing so, it held that the state may 
only impose death for conduct involving the taking of human life. 
This court is now called upon to measure a similar legislative 
determination against the requirements of the Due process Clause

6



and its prohibition of excessive governmental action impinging 

on an individuals's right to life and personal security. in doing 
so, it must find that the use by the state of life threatening 
force, unique in the severity and irrevocability of its results, 

cannot be sanctioned except in circumstances presenting a threati/to the life and safety of its citizens.

II. THE USE OF DEADLY FORCE IN THIS CASE WAS EXCESSIVE AND 
UNREASONABLE UNDER THE CIRCUMSTANCES.

A. The Findings of the district court;
The district court's ruling with regard to the reason­

ableness of the use of deadly force by officer Hymon was based on 
findings of fact that were, in part, erroneous and also in evident 
disregard of unequivocal testimony. Appellees rely heavily on 

these findings in their argument before this court. But, when all

4/ in Wiley, supra, this court questioned the wisdom of the ruling 
in Mattis, 547 F.2d 1007, wondering how law enforcement officers 
were "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 situation." Wiley, 548 F.2d at 1253. But the stand­
ards proposed here do not necessarily present that problem. It would 
be quite a different case if the legislature had determined that a 
particular class of cases— such as those involving murder, arson of 
a dwelling, rape, or armed robbery— so obviously or so often invol­
ve life threatening conduct that police may use deadly force to 
stop a suspect fleeing from the scene of such a crime. Here, how­
ever, that legislative determination was notmade. Rather, relying 
on the common law developed at a time when all felonies were capital 
offenses, the legislature authorized the use of deadly force in the 
apprehension of any fleeing felon. That determination is clearly 
overboard or excessive and must yield under any degree or scrutiny.

There is another answer to the problem of putting police in a 
position where they must make an "on-the-spot constitutional analysis." 
As discussed, infra, it is the training of police that provides them 
with the wherewithall, the internalized standards, for dealing with 
those cases where both the exigency and sensitivity of the situation 
make the decision so difficult. A police officer well schooled in 
alternatives to deadly force is less likely to cross the constitu­
tional line.

7



the evidence is considered, the use of deadly force by officer 

Hymon was unreasonable and excessive. The ruling of the district 

court should be reversed as clearly erroneous.

in its opinion, the district court stressed three facts 

in finding that it was reasonable for officer Hymon to resort to 
deadly force. The court noted several times that Hymon could not 

be certain whether the suspect was armed. App. 153, &160, 55VI & 
VII. The court also emphasized that Officer Hymon acted reasonably 
in light of the fact that there may have been an accomplice who may 
or may not have been armed. App. 152, 155, 160. Finally, the court 
relied on the fact that there were several obstacles, including a 
"three to four foot chicken wire fence," intervening between the 

officer and young Garner. App. 152, 159.
The record reveals that all three of these "facts" were 

not as the district court found them. Officer Hymon was repeatedly 

questioned about whether he thought Garner was armed or unarmed, 
in his pre-trial deposition, which was read into the record, his 
testimony on this point was unequivocal. He testified that he 

located Garner on the fence with his flashlight. App. 339. The 

following colloquy ensued.
Q. was this person's face turned toward you at any point?

A. I believe he looked in my direction, yes.
Q. Do you recall the position of his feet at the time 

you shined the light?

A. No, I do not.

8



Q. Do you recall the position of his hands at the time 
you shined your light?

A. Yes. I believe his hands were grasping the fence, 
and I believe he was in a stooped position.

App. 340. Thus, it is clear that the- officer could see Garner's
hands and could see that he was not armed. His further testimony

leaves no doubt that Hymon knew that Garner was unarmed.
Q . Did you indicate anything to your partner about 

whether this individual was armed?
A. I don't recall us discussing that. l!m sure that 

the— excuse me. I'm reasonably sure that the in­
dividual was not armed, because had he been armed,
I assume that he would have attempted to show that 
by firing a weapon, or I assume that he would have 
thrown it down, or I assume that I would have seen 
it.

Q. Well, if you had had any question about whether this 
person was armed, would it have been your respon­
sibility to notify your partner of that fact?

A. Definitely.
Q. And what would have been the normal way you would

have gone about notifying your partner of that fact?
A. Well, I would have— the thing I would have said, I 

guess, is that "He has a weapon" or "He has a gun" 
and I would have taken more cover than what I had.

App. 348-49. This deposition testimony, put into evidence, clearly
indicates that officer Hymon acted that night on the assumption
that the suspect was not armed. He reached this conclusion based

on the fact that he could see Garner's hands and on Garner's be­
havior when confronted with an armed police officer, behavior that 

was totally inconsistent with officer Hymon's experience with armed 
felons. That officer Hymon's actions were predicated on the assump­

tion that Garner was not armed is made clear not just by his testi­
mony regarding his subjective state of mind, but also by his actions.

9



He did not warn his partner that the suspect might be armed, some­

thing he "definitely" would have done "if he had any question about 
whether this person was armed. " ld_. He did not fear for his per­

sonal safety either. Otherwise, as he testified: "I would have
taken more cover than what I had." in fact, his testimony upon 

direct examination by the defendants, though slightly more equi­
vocal, was that he knowingly remained in a position where he was 

a superior target.
Q. All right. Let me go back now to the time where [sic] 

you first saw him. Did you know positively whether 
or not he was armed?

A. I really had no idea as to whether he was armed or
not. I could only see one of his hands, and I wasn't 
really— I wasn't really concentrating on it as such.
I assumed he wasn't— 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. 760.

Officer Hymon was extensively cross-examined on this

issue. He was read the following selection from his depositions
Q. "Question. Could you see his hands at all times? 

"Answer. I'm reasonably sure I could."
vApp. 779. Although, on cross, Hymon changed his testimony, saying

5/ This was part of a series of questions and answers and is other 
than that cited, supra, raising the same question. Compare App. 340 
with 777-80. However, despite Hymon's later equivocations, both 
selections of deposition testimony are entirely consistent with 
regard to the fact that Hymon could see Garner's hands and that 
Garner was not armed.

10



that when Garner jumped the fence he could only see one of Garner's

hands, App. 777-80, his deposition testimony was completely con­
sistent. See, supra, and App. 340. Further, on cross examination, 

Hymon admitted his prior testimony that he would have informed his 

partner if he had thought Garner was armed. App. 780-82.
Officer Hymon testified that when he arrived on the 

scene and spoke to the complainant, she told him that "they are 
breaking in." App. 152, 747. Although his later testimony indi­
cated otherwise, App. 758, his original deposition testimony, made 
part of the record, was clear. He said:

...When we arrived, the— a lady was standing in the 
door at 737 Vollentine, and she was pointing towards 
739 Vollentine, and she was, you know, just making a 
gesture with her finger, pointing in that direction.
And I asked her what she was saying, and she made ' 
another gesture, make some type of gesture with her 
mouth, and I couldn't understand her, so I went up 
to the porch and asked her what she was saying.
Roughly I recall her saying, "They are breaking in 
inside." And at this time I went back to the car 
and got my flashlight and informed my partner of 
what she said, and told him to go around to the 
other side.

Q. You used the term "They are breaking in."
Did you understand her to be saying that there 
were several people inside the house?

A. I don't really think she knew. I think that 
she— I think she might have mentioned 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.

App. 308o officer Hymon also testified that before he fired the

shot, his partner had come around the corner of the house and that
they could see each other. App. 340-41, 752-53. Thus, even if he
had advanced on the subject on the fence, his partner was in a

11



position to back him up in case there was a second prowler. in­

spector Barksdale, the former commander of the personal crimes
6/

bureau of the Memphis Police Department, was qualified as an 
expert witness on police procedures. When presented with a 

hypothetical situation based on the facts in this case, he testi­

fied that the fact that the officer's partner was there should 
have affected the officer's decision since "all good police 

procedure works on a partner relationship to take care of each 
other," and that the officer should have been less inclined to 

use his gun. App. 477-78.
With regard to the obstacles separating officer Hymon 

and young Garner, the record is also very clear. The "three to 
four foot chicken wire fence" was in fact three feet high as 
measured by the architect who testified for the plaintiffs. App. 
217. Officer Hymon testified several times that after he had 
shot Garner he was able to step over this fence. App. 347, 353, 

755. As for the other obstacles, Hymon's testimony was unambig­

uous.

Q. once you started moving from the west side of the 
house over to the east and to the cyclone fence, 
how long do you think it took you?

A. Well, it didn't take me that long. I almost got 
my neck hung on the clothesline wire. it didn't 
take me very long, just a matter of ducking and 
moving around.

App. 775. in fact, his partner testified that after officer Hymon

6/ inspector Barksdale is a 26 year veteran of the Memphis police 
force, and a graduate of the FBI academy, a twelve year series of 
training programs on all facets of police work. App. 463. As the 
commander of the personal crimes bureau, inspector Barksdale had 
"administrative... and command responsibility of all detectives 
assigned to homicide, assault, sex crimes, robbery and the crime 
scene bureau." App. 462-63.

12



shot Garner, it only took Hymon "three or four seconds" to reach 
the body. App. 822.

B . The Reasonableness of the Use Of Deadly Force;

As already noted, the findings of fact that provided 
the underpinnings of the district court's ruling on the reason­

ableness of the use of deadly force are themselves highly ques­

tionable. Aside from that, however, the use of deadly force by 
Officer Hymon was unreasonable under the circumstances. officer 

Hymon knew that Garner was unarmed and posed no threat to himself 
or others. in addition, he had other alternatives that he did not 
employ. Rather, he acted precipitatively in using deadly force.

As the district court itself found:

Various persons with police experience were per­
mitted to testify as to whether or not under assumed 
circumstances it was, or not, reasonable for Hymon 
to fire his pistol at the fleeing Garner. The sub­
stance of such testimony was to the effect that 
Hymon should first have exhausted reasonable alter­
natives such as giving chase and determining whether 
he had a reasonable opportunity to apprehend him in 
some other fashion before firing his weapon.

App. 157. in fact, one expert, Chief Detective Dan Jones of the 
Shelby County Sheriff's Department, testified that Officer Hymon 
failed to avail himself of even the simplest, and safest, alter­
native; to advance on the suspect during the time when he had 

paused in response to Officer Hymon's order. App. 378-81, (direct), 

386-87, (redirect) 394, 398 (recross), Chief Detective Jones had 
inspected the site. Working on the assumption that officer Hymon 

was standing some 60 feet away from the suspect, rather than the 

30-40 feet that was in fact the case, he testified:

13



App. 398 
further.

... [H]e could have been a lot closer to the suspect.
60 feet is no great distance in the first place, and 
the fence would have been very easy to get over, the 
three or four foot hogwire fence, is what it is, for 
that officer or me either, because we're both tall, 
but all I can say is that he would have been closer 
to the suspect, I believe you are saying that he is 
climbing the fence at this time.
Q. Right. Assuming he is climbing the fence before 

the officer has-even stepped over the chicken 
wire fence.

A. I think he could have been much closer to the sus­
pect because it takes the suspect time to climb 
the chain link fence and, of course, it takes the 
officer time to climb over the hogwire fence.

Q. Right.
A. What I'm trying to say is that I think the officer 

could have been closer to him than at the fence 
where he was at the corner of the house.

(Recross-examination). inspector Barksdale went even

He testified:
...Possibly he should have stepped over the fence and 
made an attempt to apprehend the suspect because of 
that short distance and his height and agility, in 
all probability he could have apprehended the subject 
without having to shoot him, but there again that is 
a matter of a decision that he made at that particular 
time, but I think probably good practice would have 
dictated that he made an effort to step over the fence.

Q . Would you have gone over the fence and made an 
attempt?

A. I probably would.

A. (Continuing) If I were going to shoot the man I 
would have shot him from right there.

Q. But your testimony is that you would have made an 
attempt to run over the fence?

A. I probably would have under the circumstances.
Now, there again, that is an individual decision 
to make.

14



Q. Well, based upon your knowledge of proper police 
procedures, would an officer have been expected 
to run over to that fence?

A. I think he should have tried to apprehend him.
App. 474-76 (emphasis added). Thus, both experts called by the 

7/
plaintiff agreed that proper procedure dictated that Officer 
Hymon get as close to the subject as possible in order to be in 
a better position to apprehend him without resorting to the use 

of deadly force.
Under all the circumstances, the evidence indicates

that had Officer Hymon pursued the suspect he would have been

able to apprehend him. First, when he ordered Garner to halt,
_§/

he was only 30-40 feet away from him. App. 153, 359. From 
that vantage point, it would have taken only three or four sec­
onds to reach Garner. App. 775, 822. Even from the instant 

that Garner jumped, Hymon could most likely have reached the

7/ Captain Coletta of the Memphis police Department was called 
by the plaintiff in his capacity as an expert on guns and ballis­
tics and as the officer in charge of training new recruits in the 
use of firearms. During the course of his cross-examination, 
Captain Coletta was asked his expert opinion on whether the offi­
cer in this case was justified in using his gun. He testified 
that he was. However, the hypothetical state of facts upon which 
he based his testimony differed from that actually involved in 
this case in two important respects. First, he was told that the 
chicken wire fence "physically barred" the officer from the sus­
pect. App. 633. Second, he was told that the suspect, rather 
than pausing as was the case, attempted to conceal himself when 
ordered to halt. App. 632.
8/ Although there is a slight ambiguity, the architect's testi­

mony seems to indicate that the distance was no more than 37 feet. 
App. 225-27.

15



cyclone fence before Garner was able to swing the lower half of 
his body over the fence. Hymon1s testimony, taken as a whole, 
indicates that more than three or four seconds elapsed from the 
time that he told Garner to halt until the time that Garner

_9/
attempted to jump the fence. During that time, he did no more 
than take "a couple of steps," App. 753, which according to his 
own testimony "wasn't, you know, far enough to make a differ­
ence." App. 358. This was so despite the fact that, according 

to one of the experts, he had a duty to approach the suspect as 
rapidly as possible and apprehend him rather than rely on his 

partner to do so. App. 381. Moreover, had Hymon continued to ap­
proach Garner after he had ordered him to halt, he would have 

been even more likely to have reached the fence before Garner 

could make good his escape.
Officer Hymon had yet another alternative. Assuming 

that he had advanced on the suspect or had actively pursued the

9/ Both Hymon's deposition testimony and trial testimony are 
essentially consistent. Although he first characterized the 
timing as "few minutes," App. 356, and later as a "matter of 
seconds," App. 752, the substance of the testimony was consis­
tent. Both times he testified that he told Garner to halt, that 
Garner paused momentarily and looked at him, that he called to 
his partner to get Garner on the fence, and that his partner 
answered him— all before Garner attempted to flee. At his depo­
sition, he testified that he called to his partner a second 
time. App. 356-57, 752-53.

16



suspect and failed to apprehend him before he got over the fence, 

he, Hymon, would have been in a position sufficiently close to 

young Garner to have used his gun to stop him without killing 
him. indeed, even though he did not attempt to approach the 
suspect, from the position that officer Hymon was in, only 
30-40 feet away from the suspect, he probably, could have shot 
Garner in the legs, stopping him without killing him. Had Hymon 
approached the suspect, or at least pursued him as far as the 
fence, he would have been better able to stop Garner by means 
of this less extreme alternative. Hymon testified that the 
reason that he aimed for Garner's torso— thus, in conjunction 
with the fact that he was armed with "dum-dum" bullets, posing 
an unnecessarily high risk of death— was because he was trained 

to do, not because he had no other alternative. App. 350.
All told, the facts of this case are significantly dif­

ferent that those in prior cases where the courts have held that 

the use of deadly force was reasonable. For example, in Wiley v . 

Memphis Police Dept., 548 F.2d 1247 (6th Cir. 1977), this court 

sustained the use of deadly force in the apprehension of two 
fleeing felons. But there, the officers could reasonably have 

assumed that the suspects were armed since they had been seen 
running from a sporting goods store that sold guns and ammuni­
tion, it was a dark and rainy night, the officers did not, ap­
parently, have the opportunity to use their flashlights, the 

suspects were some 208 feet away, and they had already climbed

17



over or gone under a fence separating them from the officers. Id. 

at 1249, 1253. Similarly, in Jones v. Marshall, 528 F.2d 132 
(2d Cir. 1975), the suspects were escaping over an open field, 
heading for a wooded area, and at least 125 feet from the officer. 

Id. at 134. Here, in contrast, the suspect was 30-40 feet away 
from the officer, clearly visible in his flashlight beam, sep­

arated from the officer by only a three foot high chicken wire 

fence, and his escape made more difficult by a 5^-6 foot chain 
link fence. Under these circumstances, this officer, as opposed 
to those in Wiley and Jones, had other alternatives available to 

him short of the use of deadly force.

C. The Standards of Conduct Applied by' the District Court:
There is one other consideration going to the correct­

ness of the district court's finding regarding the reasonableness 

of the use of deadly force in this case. The district court ap­

plied disparate standards of conduct to the two principle actors 
in this tragic case, standards that stand both the facts and the 

law on their heads. The court found that:
...Garner recklessly and heedlessly attempted to vault 
over the fence to escape, thereby assuming the risk of 
being fired upon. under the circumstances, Garner was 
knowingly, directly and proximately contributing to his 
own injury and death...

App. 159. On the other hand, the court held that Officer Hymon 

"was called upon to make a fateful and difficult decision" in 

only a "split second." App. 160.

18



in fact, Garner, a fifteen year-old, had a blood

alcohol content of .09%, just .01% under that set by Tennessee 
law as creating a presumption of intoxication for adults. App. 

154, 663. The medical examiner testified that this was the 
equivalent of approximately four beers; Garner weighed only 

about 100 pounds at the time of his death. App. 154. Thus, 
it is clear that Garner, a drunk fifteen year-old, was in no 
condition to make an alert, knowing choice regarding the risks 
he was taking. on the other hand, Hymon is a trained, profes­
sional police officer. As such, he should reasonably be expected 

to be able to handle situations involving the unreasonable or 
even reckless behavior of others. This is so because, as a 

police officer, he "has reason to know that he is dealing with 
persons whose characteristics make it especially likely that 

they will do unreasonable things." W. prosser, Law of Torts 

172 (4th Ed. 1971). Moreover, he is better equipped by 
reason of his training to meet such a standard of conduct. The 
very purpose of police training is to enable the officer to deal 
with the "split second" decisions that will face him in the field 
To hold otherwise would be to deprive the public of their right 
to expect professional conduct from their trained public servants

19



III. UNDER MONELL, THE CITY OF MEMPHIS IS LIABLE FOR HAVING 
CAUSED THE DEPRIVATION OF EDWARD EUGENE GARNER'S CON­
STITUTIONAL RIGHT NOT TO BE SUBJECT TO THE USE OF EX­
CESSIVE AND UNREASONABLE FORCE BY MEMPHIS POLICE OFFICERS.

in Monell v. New York Dept, of Social Services,___U.S.

, 56 L. Bd. 64, 98 S. Ct._____  (1978), the Supreme Court
held that municipalities are "persons" within the meaning of
42 U.S.C. §1983, overruling that portion of Monroe v. Pape, 365

U.S. 167 (1961). in doing so, it held that municipalities can
only be held liable under §1983 if they can be said to have caused
the constitutional deprivation as

...when execution of a government's policy of custom, 
whether made by its lawmakers or by those whose edicts 
or acts may fairly be said to represent official pol­
icy, inflicts the injury....

56 L.Ed.2d at 638. in the instant case, the policies and prac­
tices of the Memphis Police Department proximately caused the 
death of Edward Eugene Garner through the infliction of excessive 

and unreasonable force in an effort to apprehend him while fleeing 

from the scene of a crime.
Three policies of the Memphis Police Department are di­

rectly implicated in the death of young Garner. in 1972, the 

Memphis Police Department switched to the Remington .38 caliber,

125 grain, semi-jacketed, hollow-point bullet— one of a species 
of bullet commonly known as a "dum-dum" bullet and banned for use 

in international warfare by the Hague Convention of 1899. The 
Department also taught its recruits to aim at the torso or "cen­
ter mass," App. 156, regardless of the distance of the target or 
the reason for the use of firearms. And the Memphis Police Depart­
ment failed to adequately train its recruits with regard to alter­

natives to the use of deadly force. All of these are indisputably

20



"policiesM or "customs" within the meaning of Monell.
10/

There can be little doubt that these failures are directly 

related to the risk of death from the use of unnecessary deadly 

force by police. New York City has reported that during a two-year 
period in the early 70's, it was able via stricter firearms guide­

lines and revised training procedure to bring the toll of civilian 
deaths down from 90 per year to 54. Criminal justice Newsletter 
Vol. 10, No. 2,6(Jan. 15, 1979).

The district court held that the use of so-called "dum­
dum" bullets was not proximately related to the death of young 
Garner since, no matter what type of ammunition was sued, a shot to 
the head would have killed him anyway. However, this ruling misap­
prehends the nature of the claim asserted. The Memphis Police De­
partment arms its officers with "dum-dum" bullets and trains them 

to aim at the target's torso. By doing so, it causes a far in­
creased risk— due to the greater wounding power of this type of 
bullet and the target the officers are trained to shoot at— that 
the resulting wound will be fatal. It is black letter law that 

"if the consequences themselves were foreseeable, it was not nec­

essary to foresee the manner in which they were brought about." w. 

Prosser, Law of Torts 266 (4th Ed. 1971). Or, put another way,
...where as here the damage was caused by just those 
forces whose existence required the exercise of greater 
care than was taken...the incurring of consequences 
other and greater than foreseen does not make the 
conduct less culpable or provide a reasoned basis 
for insulation.

10/ The choice of ammunition was a well studied decision, clearly a 
policy. The training of officers to shoot at a target's torso was 
no less a policy decision. captain Coletta, who was in charge of 
teaching recruits how to shoot, testified that he could have taught 
them to aim for a target's extremities except that it would have 
required more time and money, and a better class of recruits. App. 
453. The decision not to expend time or money in the selection and 
training of police recruits is clearly an official policy even if 
it does not appear in a policy statement, ordinance, or regulation.

21



Petition of Kinsman Transit Co . , 338 F .2d 708, 724 (2d Cir. 1964).

Here, the defendant's policies created a greater risk of death, 

in fact, death ensued "from the same forces, and to the same 

class of persons." Id. at 725.
Moreover, the policy of training recruits to always 

aim for the torso or "center mass" alone is sufficient to sus­
tain liability against the municipal defendants. There can be 

no doubt that this was the proximate cause of Garner's death. 
Although Officer Hymon was less than forty feet away from 

Garner— and could have been even closer— he aimed for his torso, 
not his legs. He did not do so because he thought it the only 
way to stop Garner's flight, nor because it was the only pos­
sible target given the distance, but rather, because "we are 
instructed that when we fire our weapons that we are to shoot 

for the largest portion of the body." App. 350. When asked when 

he aimed his gun, he replied:
It was not aimed— I knew that I had the revolver 
on him, but it wasn't aimed at any certain portion 
other than the widest portion of the body.

App. 351.
The evidence at trial indicated that Memphis police

tDepartment does not teach its recruits to aim for a person's 
extremities if possible, nor to place themselves in a position 
to do so. Captain Coletta testified that the reason for teaching 

recruits 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. 454-58. Rather, it was solely because

22



the torso presents a greater target and thus leaves greater 

room for error. App. 459. When asked whether he could or 

would teach recruits the marksmanship necessary to be able 
to shoot and hit a person's extremities, he gave the follow­

ing answer:
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 im­
possible 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 prob­
lem for me, as a training administrator, we are 
bound by the quality of the students that we get, 
the quality and the aptitude that he possess on the 
front end, so with all of these variables brought 
into play, for that reason I say that it is impos­
sible to teach a recruit at this time to be a 
marksman to the extent that he could hit a man's 
arm, a leg or any extremity of the body.

App. 453-54. Thus, it is clear that the policy of the Memphis Police 
Department to teach recruits to aim for a person's torso, thus 
creating a greater risk of serious injury or death, is unrelated 

to any necessity of police work. it is solely related to the 

decision of the Department to save time and expense in the sel­

ection and training of recruits. The end result is that this 
policy causes people such as Edward Eugene Garner to be subject 

to unnecessary and excessive force. But

-23



...it is obvious that vindication of conceded con­
stitutional rights cannot be made dependent upon any 
theory that it is less expensive to deny than to 
afford them.

Watson v. City of Memphis, 373 U.S. 526, 537 (1963). See also 
Gates v. Collier, 501 F.2d 1291, 1319-20 (5th Cir. 1974); Williams 
v. Edwards, 547 F.2d 1206, 1212-13 (5th Cir. 1977). The City of 
Memphis should be held responsible for its failure to spend enough 
money in the selection and training of its recruits to see that 

they are capable of performing their duties without having to re­

sort to the use of unnecessary deadly force.

CONCLUSION
For the foregoing reasons, the judgement of the district 

court should be reversed and remanded for further findings on the 

issue of damages.

JAMES Mo NABRITT, III 
CHARLES STEPHEN RALSTON 
STEVEN Lo WINTER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

WALTER Lo BAILEY, JRo 
BAILEY, HIGGS & BAILEY 
161 Jefferson Ave.
Memphis, Tennessee 38103

AVON N. WILLIAMS 
1414 parkway Towers 
Nashville, Tennessee 37219

- 24



CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing 

Supplemental Brief have been served by United States Expres 

Mail, postage prepaid, to Henry L. Klein, Esq., 100 N. Main 
Building, Suite 3500, Memphis, Tennessee 38103.

This 31st day of January, 1979.