Plaintiff's Memorandum of Law; Plaintiff's Offer of Proof

    IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OP TENNESSEE 

WESTERN DIVISION

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

Plaintiff,

MEMPHIS POLICE DEPARTMENT, CITY OF 
MEMPHIS, TENNESSEE; WYETH CHANDLER, 
Mayor of Memphis; and JAY W. EEUBBARD, 
Director of Memphis police.

Defendants.

CIVIL ACTION 
NO. C-75-145

PLAINTIFF'S MEMORANDUM OF LAW

JACK GPHENBERG 
CHARLES STEPHEN RALSTON 
STEVEN L. WINTER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

WALTER LEE BAILEY, JR.
‘suite 901, Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff



I N D E X

Page

INTRODUCTION

II.

III.

IV.

V.

THE USE OP DEADLY FORCE TO APPREHEND AN UNARMED 
FLEEING FELON, WHO POSES NO DANGER TO THE ARRESTING 
OFFICER OR OTHERS AMOUNTS TO PUNISHMENT IN 
VIOLATION OP THE DUE PROCESS CLAUSE
THE USE OF DEADLY FORCE TO APPREHEND AN UNARMED 
FLEEING FELONY SUSPECT WHO POSES NO DANGER TO THE 
ARRESTING OFFICER OR OTHERS DEPRIVES HIM OF HIS 
RIGHT TO LIFE IN VIOLATION OF THE DUE PROCESS 
CLAUSE BECAUSE IT IS NOT JUSTIFIED BY COUNTER­
VAILING STATE INTERESTS

MEMPHIS' POLICY AUTHORIZING THE SHOOTING OF NON- 
DANGEROUS, FLEEING PROPERTY CRIME SUSPECTS 
VIOLATES THE EQUAL PROTECTION CLAUSE BECAUSE IT 
IS RACIALLY DISCRIMINATORY ................
THE USE OF HOLLOW POINT, ''DUM-DUM;' BULLETS 
CONSTITUTES EXCESSIVE FORCE IN VIOLATION OF THE 
DUE PROCESS CLAUSE .......................
THE CONSTITUTIONAL VIOLATIONS ENUMERATED ABOVE 
PLOWED FROM THE POLICIES AND CUSTOMS OF THE 
MEMPHIS POLICE DEPARTMENT AND THE CITY OP MEMPHIS 
RENDERING THE MUNICIPAL DEFENDANTS LIABLE FOR THE 
DEATH OP YOUNG GARNER .................

30

37

47

49

CONCLUSION 53



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

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

Plaintiff,
V.

MEMPHIS POLICE DEPARTMENT, CITY OF 
MEMPHIS, TENNESSEE; WYETH CHANDLER, 
Mayor of Memphis; and JAY W. BRJBBARD, 
Director of Memphis Police,

Defendants

TNTRODUCTTON

CIVIL ACTION 
NO. C-75-145

The deadly force policy of the City of Memphis and the 
Memphis Police Department authorizes the City's police officers 
to employ deadly force, inter alia, whenever they deem such force 
necessary to effect the arrest of a property-crime suspect, it 
allows the use of deadly force even when the suspect poses no 
threat of death or bodily injury to police officers or any 
other persons. Pursuant to this policy, plaintiff's black 
juvenile son, Edward Eugene Gamer, was shot and killed by police
officer Hymon on October 3, 1974 as he fled the scene of an 
offense against property, unlike the fact situations pre­



• V

sented in previous suits challenging the use of deadly force
1/by Memphis police officers, it is clear that in the instant 

case the suspect posed no threat to the life or bodily security 
of either the officers or any other person. The officer did not 
believe otherwise. He resorted to deadly force solely because

Beech V. Melancon, 465 F.2d 425 (1972); Qualls v. Parrish 
534 F.2d 690 (1976); Wiley v. Memphis Police Department, 548 F.2d 
1247 (1977) . -I _

2/ Officer Hymon was repeatedly questioned about whether he 
thought Gamer 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 Gamer on the fence 
with his flashlight. Gamer record, 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.
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 Gamer's 
hands and could see that he was not amed. 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?

(continued)

- 2 -



he was taught that he could do so to apprehend young Gamer at

^  (cont' d)
A. I don't recall us discussing that. I'm sure that

the— excuse me. I'm reasonably sure that the indiv­
idual 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 I would have been 
thrown it down, or I asaume 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 
responsibility 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 assxamption 
that the suspect was not armed. He reached this conclusion based 
on the fact that he could see Gamer's hands and on Gamer'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 
assrmption that Gamer was not armed is made clear not just by his 
testimony regarding his svibjective state of mind, but also by his 
actions. He did not warn his partner that the suspect might be 
armed, something he "definitely" would have done "if he had any 
question about whether this person was amed." id. He did not 
fear for his personal 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 slight­
ly ambiguous, was that he knowingly remained in a position where 
he was a superior target.

- 3 -



the scene of the offense.
under Owens v. City of Independence,___U.S.___; 63 L.Ed.2d

673,.100 S.Ct. ___ (1980), it is clear that a municipality does
not have a qualified privilege or immunity from liability for 
constitutional claims based on the city's "policy or custom." 
Thus, of the four questions posed by the Sixth Circuit on remand 
the following issues remain: Whether the use of deadly force to
apprehend an unarmed fleeing felony suspect who poses no danger 
to the arresting officers or other amounts to punishment in viol­
ation of the Due Process Clause; whether it is an excessive res­
ponse in light of the possible state interests and therefore is

3/

(cont' d)
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 assiame 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 deposition, which 
he affirmed:

" Q. Could you see his hands at all times?
A. I'm reasonably sure I could."

3/ Gamer record, App. 347.

- 4 -



violative of his right not to be deprived of life without 
due process;^whether the city's policy authorizing use of 
deadly force against non-dangerous fleeing property crime sus­
pects is racially discriminatory;and whether the policies and 
practices of the Memphis Police Dept, lead to these violations.

,  ̂' ‘

- 5 -



I. THE USE OF DEADLY FORCE TO APPREHEND AN UNARMED FLEEING 
FELON WHO POSES NO DANGER TO THE ARRESTING OFFICER OR 
OTHERS AMOUNTS TO PUNISHMENT IN VIOLATION OF THE DUE 
PROCESS CLAUSE
The Fourteenth Amendment provides every person with

protection against punishment without due 
process of law.... For under the Due Process 
Clause, a [person] may not be punished prior 
to an adjudication of guilt in accordance 
with due process of law.

Bell V. Wolfish. ___U.S. ___, 99 S.Ct. 181, 60 L.Ed.2d 447, 466
(1979). Accord, Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 
(1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-67 (1963). 
Just as., protection of the Due Process Clause applies to a pre-trial 
detainee. Wolfish, supra, it must apply as well to a fleeing fel­
ony suspect such as Edward Eugene Gamer. The shooting of young 
Gamer, an unarmed fleeing felony suspect who posed no danger to 
the officer or others, violated his rights under the Due Process 
Clause because it amounted to punishment.

Determining whether a particular sanction is punishment is a 
“problem [that] has been extremely difficult and elusive of solu­
tion.” Mendoza-Martinez, supra, 372 U.S. at 168. To make that 
determination, a "court must decide whether the disability is 
imposed for the purpose of punishment or whether it is but an in­
cident of some other legitimate governmental purpose." Wolfish, 
supra, 60 L.Ed.2d at 468. In Wolfish, the Court cited the 
Mendoza-Martinez criteria as "useful guideposts" for making that

- 6 -



determination.
The punitive nature of the sanction here is 

evident under the tests traditionally applied to 
determine whether an [a]ct ... is penal or regu­
latory in character.... Whether the sanction 
involves an affirmative disability or restraint, 
whether it comes into play only on a finding of 
scienter, whether its operation will promote the 
traditional aims of punishment —  retribution and 
deterrence, whether the behavior to which it applies 
is already a crime, whether an alternative pua^jose 
to which it may rationally be connected is assign­
able for it, and whether it appears excessive in 
relation to the alternative purpose assigned are all 
relevant to the inquiry,, and may often point in 
differing directions. Absent conclusive evidence 
of ... intent as to the penal nature of a statute, 
these factors must be considered in relation to the 
statute on its face-

Mendoza-Martinez, supra, 372 U.S. at 168-69. The application of 
these seven factors to the Memphis use of deadly force policy, in 
the absence of expressed intent, overwhelmingly points in only 
one direction; the use of deadly force to apprehend an unarmed 
fleeing felony suspect,is, in purpose and effect, punishment.

1) The imposition of death is the ultimate, "affirmative
disability or restraint." ,It is not only a deprivation of rights, 
it is a deprivation of "the right to have rights." Furman v . 
Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring). It 
i&."the right which comprehends all others, the right to life 
itself." Screws v. United States, 325 U.S. 91, 133 (1945)
(Rutledge, J. concurring).

2) The historical underpinnings of the fleeing felon

- 7 -



doctrine strongly suggest that the shooting of fleeing felons 
was regarded as punishment. At the dawn of the common law in 
England, an escaping suspect might establish a new life in another 
community with little fear of discovery and eventual capture.
There was virtually no communication between law enforcement per­
sonnel in different jurisdictions. Thus, without the use of 
deadly force to thwart escape, the social goals of punishment 
and retribution were easily frustrated. Since, as late as the 
15th century in England and the 18th century in America, all fel^ 
onies —  murder, rape, manslaughter, robbery, sodomy, mayhem, 
burglary, arson, prison break, and larceny —  were punishable by 
death, the fleeing felon doctrine merely accelerated the penal

i/process. Early commentators described "the extirpation [as] but
5/

a premature execution of the inevitable judgment. . . . "  "His kil­
ling was at best an extrajudicial and premature execution of a 
penalty which he had already incurred by his felony."

As noted by a recent commentator, the fleeing felon doctrine 
grew out of an era when summary execution was well ensconsed in

^  comment, Deadly Force to Arrest; Triggerinc Constitutional 
Review, 11 Harv. Civ. Rights-Civ. Lib. L. Rev. 361-65 (1974);
R. Perkins, CRIMINAL LAW 10 (2ed. 1969).
5/ Note, Legalized Murder of a Fleeing Felon, 15 Va. L. Rev. 582,
See also Note, The Use of Deadly Force in Arizona by Police Officers, 
1972 L. St Soc. Order 481, 482 ("It made little difference if the 
suspected felon were killed in the process of capture, since’, in the 
eyes of the law he had already forfeited his life by committing the 
felony.")
6/ Bohlen St Schulman, Arrest With aind Without a Warrant, 75 U.Pa.

- 8 -



the Law.
Thieves were often killed outright during the 
hue and cry, even after they had been captured.
"Let all go forth where God may direct them to 
go," urged the tenth-century laws of Edgar; "let 
them do justice on the thief." Suspicion sufficed 
to convict thieves without any trial at all, and 
"execution in such cases often followed immediately 
on arrest." According to the preamble to Act 24 of 
Henry VIII, it appears that the common law author­
ized the victims of crimes and attempted crimes to 
kill the criminal, regardless of whether it was 
necessary to prevent the felony, in the twelfth 
and thirteenth centuries "outlaws could be beheaded 
by anone, and a reward was paid for their heads 
under Richard l." -Abjurors of the relam (felons 
who had escaped into religious sanctuary and agreed 
to leave the country forever) who strayed from the 
highway on their journey to the sea could also be 
beheaded by anyone. In the, context of the times in 
which the kill-to-arrest doctrine evolved, it was 
clearly linked to a philosophy of summary justice 
that can only be viewed as punishment.

She m a n , Execution Without Trial; Police Homicide and the consti­
tution. 33 Vand. L. Rev. 71, 81 (1980) (footnotes omitted).

Even in later times, after the adoption of the Fourteenth
Amendment, the fleeing felon doctrine was viewed for what it is;
punishment. Speaking of the common law fleeing felon doctrine.
Judge (later Justice) Brown said;

I doubt, however, whether this law would be 
strictly applicable at the present day. Sup­
pose, for example, a person were arrested for 
petit larceny, which is a felony at the common 
law, might an officer under any circumstances 
be justified in killing him? I think not. The 
punishment is altogether too disproportioned

y  (cont’d) L. Rev. 485, 495 (1927)

- 9 -



to the magnitude of the offense.
United States v. Clark, 31 Fed. 710, 713 (C.C.E.D. Mich. 1887)

y(emphasis added). Thus, historically, the shooting of a fleeing 
felony suspect has always been regarded as punishment.

3) & 5) The third and fifth of the seven Mendoza-Martinez 
criteria are, respectively, whether the sanction comes into play 
upon a finding of scienter and whether the behavior to which it 
applies is already a crime. The fleeing felon doctrine meets 
these two criteria of punishment.

The application of the scienter factor —  and, to a lesser 
extent, the already a crime factor —  to the shooting of a fleeing 
felony suspect is problematic- Both presume that the sanction is 
explicitly regulatory in character. In that case, in order to 
determine whether the sanction is punishment^ it is relevant to 
ask whether it is being applied Upon a finding of scienter auid 
whether it is being applied to behavior made criminal by other 
statutes. Here, the sanction is explicitly being applied because 
of the victim's suspected criminal conduct. This tightens the

1/ The issue in Clark was whether the shooting of an escaping 
military convict was murder. The court held that it was not, re­
lying in part upon the special need for discipline in the mili­
tary —  the victim having sxibjected himself by enlistment to a 
"military code of Draconian severity," id. at 713 —  and in part 
upon the fact that the victim was already convicted. at 714.
Several municipal deadly foce policies acknowledge this latter 
distinction, treating escaping convicts as a separate category. 
See

- 10 -



inference of punishment.
The "finding of scienter" is made by the police officer in

§/his determination that there is a "reasonable suspicion" that 
the fleeing suspect committed a felony. That determination pre­
sumes that the suspect has met the scienter requirement for that 
felony.

There is no doubt that the behavior to which the sanction
i/applies is already a crime, although there is some doubt about

19/  .which crime the victim is being shot for^ Nonetheless, the fact

8/ See Memphis Police Department Deadly Force Policy 5-74 (Febru­
ary 5, 1974), Plaintiff's Offer of Proof, Pt.lO , at 105.
_9/ Burglary is prohibited by Tenn Code. Ann. § 39.901 (1975). 
Flight is not a statutory crime, but it was a crime at common law. 
See n, , infra. Memphis City Code § 30-15 makes it "unlawful" for 
any person "to escape from ... any officer or member of the police 
force." violation of this section, which prescribes no penalty, is 
subject to a maximum fine of $50. See Memphis City Code § 1-8.
^  As cogently argued by Professor Mikell:

May I ask what we are killing him for when he 
steals an automobile and runs off with it? Are 
we killing him for stealing the automobile? ...
If we catch him and try him ..., what do we do to 
him? Put him before a policeman and have a police­
man shoot him? Of course not. We give him three 
years in a penitentiary. It cannot be then that we 
allow the officer" to kill him because he stole the 
automobile, because the statute provides only three 
years in a penitentiary for that. Is it then for 
fleeing? And again I insist this is not a question 
of resistance to the officer. Is it for fleeing 
that we kill him? Fleeing from arres is also a com­
mon law offense and is punishable by a light penalty, 
a penalty much less than that for stealing the auto­
mobile.

(continued)
- 11 -



remains that it is because he is suspected of having committed a 
crime that the victim is shot. "[W]e are in fact killing the . . - 
thief for the volatile combination of felony and flight, both of 
which are crimes." Sherman, supra, 33 Vand. L. Rev. at 84.

4) The fourth of the Mendoza-Martinez criteria is whether 
the sanction promotes the traditional goals of punishment —  retri­
bution and deterrence. The killing of a fleeing felony suspect 
does operate to promote retribution. Death is as retributive a 
sanction as society can authorize; it is, as noted earlier, "the 
ultimate sandtion." Gardner, supra, 430 U.S. at 358. And, as pre­
viously noted, the fleeing felony doctrine was historically viewed 
as merely accelerating punishment in an era where retribution was 
a primary goal (as contrasted with rehabilitation) of the penal 
law. Moreover, the courts themselves have indicated the retribu­
tive and punishing aspect of this sanction, in discussing the 
Tennessee fleeing felon doctrine in Wiley v. Memphis Police 
Department, 548 F.2d 1247 (6th Cir. 1977), the Sixth Circuit cited 
the observation of the dissent in Mattis v. Schnarr, 547 F.2d 
1007, 1023 (8th Cir. 1976), vacated on case and controversy grounds 
sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977): "There is no
constitutional right to commit felonious offenses and escape the 

(cont'd)
9 ALI PROCEEDINGS 186-87 (1931), quoted in J. Michael & H. Wechs- 
ler, CRIMINAL LAW AND ITS ADMINISTRATION 80-82 n.3 (1940).

- 12 -



consequences of those offenses." Wiley, supra, 548 F.2d at 1253. 
Those consequences are, of course, the punishment that ought to 
follow criminal conduct and the retribution that entails.

Criminologists, lawyers and politicians may debate ad infinitum 
over the deterrent value of the imposition of death and other 
penalties. Thus, whether any sanction in fact promotes the tradi­
tional deterrent aim of punishment would seem to be an unanswerable 
question. iTonetheless, the record indicates that the shooting of 
fleeing felony suspects in Memphis is intended to promote this aim. 
In Wiley, supra, this court found, based on the testimony of Mayor 
Chandler and Director Hubbard, defendants in this action, "that 
one of the principal purposes of Memphis' policy regarding use of 
deadly force insofar as they attempt to justify the possible death 
of fleeing burglary suspects, is to deter criminal conduct."
Wiley y. Memphis Police Department, Civ. Action No. C-73-8, Mem.
Op. at 13 (W.D. Tenn. June 30, 1975) (App. 248) . This not, only . 
shows that the operation of the fleeing felon doctrine in Memphis 
is for the promotion of one of the traditional aims of punishment, 
it is as close as could be expected to siabjective evidence of 
intent to punish which alone suffices to invalidate the policy as 
pianishment in violation of the Due Process Clause. Wolfish, supra,

ii/60 L.Ed.2d at 468; Mendoza-Mairtinez, supra, 372 U.S. at 169.
11/ Moreover, testimony that would be offered by plaintiff shows

(continued)
- 13 -



6) & 7): A sanction may yet avoid the inference that it
is a punishment if "an alternative purpose to which it may 
rationally be connected is assignable for it, and . . it does 
not appear "excessive in relation to the alternative purpose. .

11/ (cont'd)
that this intention of punishment exists amongst law enforcement 
officials generally. Plaintiff's expert. Chief William R.
Bracey, who has command authority over all of New York City's 
17,500 uniformed police officers, would testify regarding the 
use of deadly force against fleeing felony suspects. Many pol­
ice officials feel that the shooting during hot pursuit of a 
person who had just committed a murder or a particularly brutal 
rape is, as a matter of common sense, justified because of the 
seriousness of the offense. This "instinct for punishment" is 
particularly prevalent amongst veteran police officers trained 
before the advent of modem guidelines. Chief Bracey would 
testify that in New York City, where the department's 1973 
guidelines prohibit such use of deadly force without an actual 
current threat to the officer or others, it was difficult to 
retrain veteran officers who felt that it was appropriate to 
shoot since the suspect had committed a serious crime.

With regard to the Memphis policy. Chief Bracey would 
comment particularly on the choice to use deadly force against 
non-dangerous property crime suspects. Commenting on the figures 
provided by plaintiff's statistical expert, James J. Pyfe, that 
50.7% of all Memphis police shootings involve property crime 
suspects. Plaintiff's Offer of Proof, Pt. 3, at 4. Chief 
Bracey would note that "such a trend seems wrong and'excess­
ive ..." Id. Pt. 1, at 9.

- 14 -



Mendoza-Martinez, supra> 372 U.S. at 168-69. Without discounting 
the overwhelming significance of the evidence that Memphis' deadly 
force, policy is intended to promote the deterrent aim of punish­
ment, analysis of possible alternative purposes under this stand­
ard still points to punishment.

The dissent in Mattis, supra, cited approvingly by the Sixth
Circuit in Wiley, supra, sought to enumerate the possible state
interests behind the fleeing felon doctrine.

These interests include effective law enforcement, 
the apprehension of criminals, the prevention of 
crime and the protection of members of the general 
populace, who, like fleeing felons, also possess a 
right to life.

Mattis, supra, 547 P.2d at 10023 (Gibson, D.J., dissenting). Close 
analysis of this passage reveals four possible purposes for the 
fleeing felon doctrine, only three of which are other than the 
traditional aims of pvmishment —  retribution and deterrence.

The first of the Mattis state interests, "effective law 
enforcement," is merely a generic term which includes the other 
three enumerated interests. The only possible meaning of effect­
ive law enforcement other than apprehension, prevention, or pro­
tection is punishment, either in the sense of retribution or ' 
deterrence.

The second of the Mattis state interests, "apprehension of 
criminals," is a clearly non-punitive goal.

- 15 -



The third of the Mattis state interests, "the prevention of 
crime," may mean one of three things. First, there is the legi­
timate state interest in preventing the particular crime —  i.e., 
that committed by the fleeing felony suspect. Second, there is 
the state interest in preventing other, future crimes that the 
suspect might commit if not captured. Third, it may mean the 
prevention of crime generally that results from the example set 
by the apprehension and prosecution of this particular felony 
suspect —  i.e., deterrence. Of thesee.only the first two are 
non-punitive alternative purposes.

The fourth Mattis interest, "the protection of the members 
of the populace," also has several possible meanings. The one 
suggested by the context, the referrence to the general populace's 
right to life,' is the protection of the physical safety of the 
public —  a legitimate, non-punitive goal. Protection of the 
public's property rights is another possible state interest —  

either in its general deterrence sense or in the sense that the 
suspect, if not captured, might commit additional property crimes. 
The latter, as noted above, is also a legitimate non-punitive 
purpose.

4

In addition, one further state interest, not discussed in 
Mattis, can be identified. That is the interest of the police 
officer in self-defense.

- 16 -



Thus, we can isolate a total of five alternative, non-punitive 
state interests in the use of deadly force against criminal sus­
pects. They are: a) the apprehension of the suspect; b) the 
prevention of the crime in which the suspect is engaged? c) the 
protection of the lives and safety of the public at large? d) the 
self-defense of the officer employing deadly force (i.e., pro­
tection of his life)? and e) disabling the suspect, through 
apprehension, from committing a similar crime in the indefinite 
future-

Having identified these five interests, the court must answer 
two questions. The first is whether the shooting of an unarmed 
fleeing felon is rationally connected to any of these five poten­
tial alternative purposes. The second is, if it is assignable to 
some or all of these five, whether it is excessive in relation to 
those alternative purposes.

a) The apprehension of the suspect; Of the five enumerated 
alternative purposes, this is the most clearly assignable to the 
fleeing felon doctrine generally and the Memphis deadly force 
policy particularly. The question remains whether the use of 
deadly force is not only inherently excessive in light of this 
purpose, but, as used pursuant to Memphis' policies and customs, 
it is excessive in terms of its execution and in terms of how 
readily it is resorted to.

- 17 -



First, shooting the fleeing felon is an excessive response 
to the need to apprehend the suspect in the sense that it is not 
necessary. The fleeing felon doctrine was more closely propor-r 
tioned to this aim during its development at common law, when 
there existed virtually no communication between law enforcement 
personnel in different towns and cities. Thus, the escaping sus­
pect could easily go to another community and establish a new life 
without fear of eventual apprehension. But, by the eighteenth 
century, authorities were circulating description of wanted cri­
minals outside of London. And, by the early twentieth century, 
American police officers consulted their colleagues in other 
cities about thieves and their whereabouts. Sherman, 33 Vand.
L. Rev. at 76; Comment, Deadly Force to Arrest, 11 Harv. Civ.
Lib^ L. Rev. at 365. The further development of bureaucratic 
police agencies armed with sophisticated meains of communication 
has nq,î obviated the need for using deadly force to apprehend 
fleeing felony syspects.

This is not merely the speculation of lay plaintiffs. Plain­
tiff'S proffered expert. Chief William R. Bracey, who has command
responsibility for all of New York's 17,500 uniformed police of-

12/
ficers, would testify that the shooting of fleeing felons is 
simply not necessary for effective law enforcement and the ulti-

12/ See Plaintiff's Offer of Proof, Pt. 1,, at 4 .
- 18 -



mate apprehension, of the suspected felon. There exist other 
means of tracking down the suspect, via communication with other 
officers and via investigation, short of taking his life. If this 
is true for a large metropolis such as New York, it must logically 
hold true for other major cities whose geographic area and popu­
lation is simply not as large and overwhelming.

Second, the shooting and killing of a fleeing felony suspect 
is an inherently excessive means of apprehension. This is clearly 
illustrated by the language of the Tennessee statute that author­
izes Memphis' deadly force policy. Upon flight of the suspect, it 
allows that "the officer may use all the necessary means to effect 
the arrest.” Tenn. Code Ann. § 40-808 (1975). But the officer 
in this case was never able to effect an arrest. After he had 
employed deadly force- as he was taught, the only thing left to 
arrest was the corpse of Edward Eugene Gamer.

This argument is more than semantics; analysis of the pur­
poses of apprehension illustrates the excessiveness of deadly 
force employed in order to effect an arrest. We apprehend a sus­
pect for the purpose of turning him over to the judiciary. He is 
put on trial before a jury to determine whether he is guilty or 
innocent. Finally, he is brought before the court for the pur­
pose of sentencing —  a process which entails consideration not 
just of the need for punishment, but also the need and opportunity 
for rehabilitation. Shooting the suspect as a means of apprehen-

- 19 -



Sion is excessive in light of these goals and the varied and 
important social interests behind them. It frustrates the deter­
mination of guilt or innocence which is the purpose of apprehen­
sion. It obliterates both the substance and appearance of due 
process which is central to the operation of our criminal justice 
system. And finally,■prevents the judicial determination of 
punishment that is the ultimate goal of the arrest process, frus­
trating the possible rehabilitative goals of the criminal justice 
system in favor of a disposition that only promotes its punish­
ment interests —  retribution and deterrence.

Third, Memphis' use of deadly force policy is uniquely 
excessive in its execution. Even assuming the appropriateness of 
using one's revolver to arrest a suspect, Memphis' policies, prac­
tices and customs go beyond what is necessary. The Memphis Po­
lice Department arms its officers with "dum-dum" bullets and 
trains them to shoot at the target's torso. By doing so, it 
causes a far greater 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. Moreover, 
the interplay of these two factors creates an indelible impres­
sion upon the Memphis police officer that the policy of the Mem­
phis Police Depaartment is one encouraging use of one' s revolver

12/
and the use of that revolver to kill. In Wiley v. Memphis

13/ chief Bracey would testify that this implicit policy would

- 20 -



Police Department, 548 P.2d 1247 (6th Cir. 1977), the Sixth 
Circuit quoted this Court’s opinion which indicated that the 
defendants

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

Id.at 1250. While experts may disagree about requiring the of­
ficer to aim for an extremity, such a requirement is not unheard

wof. Moreover, on the current record, the only testimony regard­
ing the feasibility of shooting to wound or hit an extremity is

r r"that offered bŷ  Coletta of the Memphis Police Department who testi-!
fied that he could teach recruits to shoot at an extremity but

wthat it would simply require more time and resources.

13/ (Cont'd)
particularly be transmitted by the then recent decision to rearm 
Memphis Police Officers with "dum-dum" bullets with greater wound­
ing power coupled with the training to shoot at the torso. Plain­
tiff's Offer of Proof, Pt. 1 , at 8-9.
14/ See Plaintiff's Offer of Proof Pt. 10, at 162.- The 
Peoria police Department provides guidelines to its officers gov­
erning when to shoot to kill and when to shoot to wound, under 
Illinois law, Peoria officers cam only employ deadly force when 
the felony is a forcible one or when the escapee otherwise indi­
cates that he will endanger human life in not apprehended. ,
Pt. 10 , 162.
15/ Captain Coletta testified that the reason for teaching re­
cruits to aim for the torso was not related to police safety in 
any way; it did not create a better chance of neutralizing a dan­
gerous suspect. App. 454-58. Rather, it was solely because the 
torso presents a greater target and thus reduces the chances 
of missing it. 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 following answer:

(continued)
- 21 -



Fourth, the policies, practices, and customs of the Memphis 
Police Department are excessive in that they encourage the quick

15/ (cont'd)
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 re­
cruits, 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 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 impossible 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 
selection and training of recruits. The end result is that this 
policy causes people such as Edward Eugene Gamer to be subject 
to unnecessary and excessive force. But

it is obvious that vindication of conceded constitu­
tional rights cannot be made dependent upon any theory 
that it is less expensive to deny tham to afford them.

( continued)
- 22 -



resort to the use of deadly force without a proper effort to 
exhaust other alternatives available to the officer in appre­
hending the fleeing felony suspect. These policies and customs 
include inadequate training in alternatives to deadly force, in­
adequate stress, both in the written policy auid in training, on 
the necessity of exhausting other reasonable alternatives, and an 
official policy, evidenced by pronouncements of the mayor and the 
miserable failure of Memphis Police Department disciplinary pro- 
cedures, to review and control firearm discharges. The proxi­
mate result is the excessive use of deadly force in situations 
where it is not necessary in order to apprehend the suspect.

Two incidents are sufficient to illustrate this point. On 
the night of Januairy 12, 1972, two Memphis police officers stopped 
Eddie Hugh Madison, 14, and Walter Lee Williams, 17, in a stolen 
auto. Eddie Lee Madison ran from the scene and was fired upon 
three times by an officer with a .12 guage shotgun amd once by an

15/ (cont'd)
Watson V. City of Memphis, 373 U.S. 526, 537 (1963). See also 
Gates V. Collier, 501 P.2d 1291, 1319-20 (5th Cir. 1974); 
Williams v. Edwards, 547 P.2d 1206, 1212-13 (5th Cir. 1977).
Ig/ See discussion, infra, Point IV.

4

- 23 -



officer armed with his service revolver. This incident occured
> n  1

on a Memphis city street, not in a back alley or wooded area.
17/

During a pre-trial deposition, the officer was asked whether he 
first considered other alternatives before resorting to the use of 
deadly force. He testified that he made sure that his line of 
fire was clear so that he would not injure any bystanders. The 
officer made no effort to pursue the fourteen year-old suspect 
down the uncrowded and uncluttered city street. Indeed, he never 
even considered it.. Similarly,, in the instant case, the officer 
was a mere 30 feet away from young Gamer during the entire con­
frontation. He made no effort to advance on the suspect and appre­
hend Tvi-tti via the use of non-deadly force simply because he knew, 
according to the training that he received from the Memphis Police 
'Department, that he could always resort to the use of his gton if 
the suspect attempted to flee. Thus, the Memphis liberal use of 
deadly force policy encourages lax police procedures; it encourages 
police officers to employ excessive force in effecting an arrest

17/ See Plaintiff's Offer of Proof, Pt.5„at25 .
18/ Id. at 26. The Madison case was settled on the eve of trial. 
Madison v. Memphis Police Department, Civ. Action No. C-73-21 (W.D. 
Tenn. Jan. 4, 1980). Plaintiff intends that no inference be 
drawn from the fact of settlement. Plaintiff merely tenders the 
testimony of the officer for its own weight.

- 24 -



rather' than to exert themselves in an effort to capture a fleeing 
suspect, as occurred in this and other cases.

b) and c) The crime prevention interests; The crime prevention 
interest enumerated as b), prevention of the crime in which the 
suspect is engaged, is not assignable to the Memphis use of deadly 
force policy. Memphis authorizes the killing of a felony suspect 
after the crime has been committed, as occurred in the instant 
case. Accordingly, the court need not undertake to weigh whether 
deadly force is an excessive means of serving this interest.

The crime prevention interest enumerated as a), on the other 
hand —  disabling the suspect from committing a similar crime in
the indefinite future —  is rationally assignable to the Memphis

1

deadly force policy. However, it_is too clearly excessive a
means to effectuate that purpose to negate the inference of punish-

12/
ment.

The excessiveness of deadly force to effectuate this state 
interest is most clearly demonstrated by the decisions of the 
Supreme Court regarding the constitutionality of the death penalty. 
In Coker v. Georgia, supra, the Court ruled that the imposition 
of death as a punishment for the crime of rape violated the Eighth 
Amendment. The Court started from the premise that in Gregg v. 
Georgia, 428 U.S. 153 (1976), it had

19/ The resort to deadly force to prevent a possible future crime 
is excessive for reasons previously developed: apprehension and 
sentencing would similarly accomplish the same purpose without

(continued)
- 25 -



... 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 "excessive" 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 
severity of the crime of rapes "Short of homicide, it is the 
'ultimate 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 excessive penalty for the rapist who, 
as such does not take human life.

Id. at 598.
The imposition of the death penalty would disable the rapist 

from committing other equally serious crimes in the future. But 
the killing of a rapist is excessive in light of his crime, and, 
therefore, in light of any propensity he might have to repeat 
that crime. Shooting an unarmed burglary suspect who might, it 
is speculated, steal another $10 in the future, is similarly exces­
sive.

1.9/ (cont'd)
loss of life, and there are other less excessive means of effect­
ing eventual capture. See discussion, supra.

- 26 -



c) and d) safety interests; The safety interests emmerated
as c) and d), respectively, are not assignable to the Memphis
deadly force policy at issue in this case. As established above,
young Garner had, no weapon, threatened no one either during the
commission of the alleged crime or afterward, and was not thought
by the police officer to be armed. Thus, only that aspect of the
Memphis deadly force policy that allows the shooting of unarmed
non“dangerous fleeing felons is at issue here. That policy does
not in any way advance the state's interest in protecting the
physical safety of its citizens or its police officers, nor the

20/
officer's legitimate interest in self defense.

20/ Manifestly, in a case where the safety interests are properly 
presented, plaintiff would agree that these alternative interests 
would justify resort to deadly force and that deadly force under 
those circvunstances would be non-punitive in nature. Plaintiff 
will not here discuss when those interests might or might not be 
properly implicated. It is sufficient that they were clearly 
not implicated in the instant case. ^

Safety interests are impl-icateci in the regulations promul­
gated by-police departments to govern use of deadly force. Reg­
ulations vary widely in the degree of their restrictiveness.
Levels of restrictiveness extend from strict standards which 
specify that officers ciui resort to firearms only in self defense 
or to defend others from serious injury —  the standard employed 
for instance in Durham, Milwaukee, and New York City —  to more 
permissive standards which stipulate that police can resort to 
deadly force to apprehend suspects of violent felonies —  the 
policy of Boston, Chicago and Dayton —  to even more amorphous 
standards which allow police to resort to firearms to apprehend 
fleeing suspects of felonies including burglary —  the policy 
used in Birmingham, Columbus and Pittsburgh. Plaintiff takes no 
position on the constitutionality of these various standards.

For a discussion of the historical relevance of these inter­
ests, see infra. Point II.

- 27 -



In conclusion, analysis of the Memphis deadly force policy 
in light of the Mendoza-Martinez factors overwhelmingly leads 
to the conclusion that it amounts to punishment. "The punitive 
natxire of the sanction here is evident under the tests tradi­
tionally applied. . . . "  Mendoza-Martinez, supra, 372 U.S. at 
168. It is an "affirmative disability [and] restraint" of the 
highest order. It has historically been regarded as punishment.
It is applied only for behavior that is a crime, after the officer 
has made a determination that the suspect has probably committed 
a crime which requires scienter. It promotes the traditional 
punishment aim of retribution and is specifically intended as 
a deterrent. And finally, while there are two other alternative 
purposes to which it is rationally assignable, it is excessive 
in relation to thosealternative purposes. Thus, one cannot 
escape the conclusion that the Memphis policy authorizing the 
shooting of unarmed fleeing felony suspects who pose no danger 
to the arresting officer or others is punishment in violation 
of the Due Process Clause. This conclusion is bolstered by the 
fact that even if it were acceptable as punishment, it would be 
unconstitutional as cruel and unusual punishment since it is 
grossly out of proportion to the severity of the offense. Coker, 
supra.

- 28 -



Finally, the application of these criteria and the conclu­
sion they compell Ccinnot be avoided because the initial decision 
authorizing the use of deadly force was made by the legislature. 
Just as the Eighth Amendment proscribes what punishment a legis­
lature may mandate, the Due Process Clause proscribes punishment 
before trial• "Mechcuiical deference to the [legislature] . . . 
would reduce that provision to a nullity in prrcisely the 
context where it is most necessary." Spain v. Procunier, 600 
F.2d 189, 193-94 (9th Cijr. 1979) (application of Eighth Amendment 
to prison conditions). The Mendoza-Martinez tests are required 
by the Constitution and must be applied by the court, "mindful 
that these inquiries spring from constitutional requirements. . . 
Wolfish, supra, 60 L.Ed. 2d at 469 (per Rhenquist, J.).

- 29 -



II. THE USE OF DE2UDLY FORCE TO APPREHEND AN UNARMED FLEEING 
FELONY SUSPECT WHO POSES NO DANGER TO THE ARRESTING 
OFFICER OR OTHERS DEPRIVES HIM OF HIS RIGHT TO LIFE IN 
VIOLATION OF THE DUE PROCESS CLAUSE BECAUSE IT IS NOT 
JUSTIFIED BY COUNTERVAILING STATE INTERESTS
Edward Eugene Gamer was shot and killed by a Memphis police 

officer despite the fact that he presented no danger to that of­
ficer or others. He was thus deprived of his right to life sec­
ured to him as to all other persons by the Due Process Clause of 
the Fourteenth Amendment.

The right to life is fundamental "in the sense that it is
among the rights and liberties protected by the Constitution,"
San Antonio Independent School District v. Rodriquez, 411 U.S. 1,
29 (1973), inciude- "explicitly ... guaranteed by the Constitution."
Id. at 33.* " [N] or shall any State deprive any person of life ... .
without due process of law... . . U.S. CONSTITUTION, AMEND. XIV.
It has long been described as "fundamental" in both the equal pro-

21/
tection aind due process contexts. It is clearly a "[right] far 
more precious . . . than property rights," May v. Anderson, 345 
U.S. 528, 533 (1953), "the right which comprehends all others, the 
right to life itself." Screws v. united States, 325 U.S. 133 
(1945) (Rutledge, J. concurring) .

In the abortion case. Roe v. Wade, 410 U.S. 113 (1973), the 
Court applied a familiar analytical process in reaching its con-

21/ See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) ("the 
fundamental rights to life, liberty and the pursuit of hapiness"); 
Johnson v. Zerbst, 304 U.S. 458, 46 2 (1938) ("fxindamental human

- 30 - (continued)



elusion that the statute at issue in that case was unconstitu­
tional. Because fxondamental rights were at stake the Court applied, 
under the Due Process Clause, the test of constitutionality requir­
ing "that regulation of these rights may be justified only by a 
'compelling state interest' . . . and that legislative enactments 
must be narrowly drawn to express only the legitimate state in­
terests at stake." Id. at 155. Roe thus sets forth an appropriate
constitutional framework for scrutiny of the Memphis deadly-force

22/
policy. See also Cleveland Board of Education v. LaFleur, 414 
U.S. 632 (1974); Stanley v. Illinois, 405 U.S. 645 (1972). That 
framework requires that, in order to justify denying a fundamental

21/ (cont' d)
rights of life cind liberty"); Screws v. United States. 325 U.S. 91 
131, 132 (1945)(Rutledge, J., concurring)(life is among the "clear- 
cut fundamental rights"); id. at 134-35 (Murphy,, j., dissenting) 
("He has been deprived of the right to life itself.... That right 
was his because he was an American citizen, because he was a human 
being. As such, he was entitled to all the respect and fair 
treatment that befits the dignity of man, a dignity that is recog­
nized and guaranteed by the Constitution.").
22/ The criticism most frequently leveled at the decision in Roe
—  that the constitutional right to abortion cannot be derived 
either "from the intent of the framers, or from the governmental 
system contemplated by the Constitution," Ely, The Wages of Cry­
ing Wolf; A Coimnent on Roe v. Wade, 82 YALE L.J. 920, 928 (1973)
—  is not available in the instant case. As demonstrated above, 
the constitutional right to life is explicitly guaranteed by the 
Constitution and inherent in the constitutional framework.

- 31 -



right, such as the right to life, the state must demonstrate the 
existence of interests equivalent to or otherwise sufficient to 
counterbalauice the right that is curtailed.

First, it should be noted that no prior Sixth Circuit case 
has dealt with the issue presented in this case. In his concurring 
opinion in Wiley v. Memphis Police Dept,, 548 F.2d 1247, 1256 (6th 
Cir. 1977) , Judge McCree restated the appliccdsle law in this Cir­
cuit:

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.
This rule meets the framework of analysis set out above. For, 

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, supra, 547 
F.2d 1019, coupled with the immediate nature of the need for action.

- 32 -



justifies the use of deadly force and the resulting imposition 
of death, id. But absent the life threatening circumstance, the 
state's interest in the use of deadly force pales. What is pre­
sented then is the lesser state interest in law enforcement gen­
erally. In that case, death —  which "is unique in its severity 
and irrevocability," Coker, supra, 433 U.S. at 598, —  is an 
excessive state response.

Analysis of both the history of the fleeing felon doctrine 
and the possible state interests applicable to the instant case 
confirm this. As previously noted, the doctrine was developed in 
an age when law enforcement personnel did not communicate with one 
another. Thus,, the successful fleeing felony suspect could evade 
both apprehension and punishment, establishing a new life else­
where. The development of sophisticated means of communication 
and the increasing communication between differendt departments 
removed,for the doctrine.

Technological advances in weaponry have also helped to des­
troy the basis for continued adherence to the doctrine. During 
the early years of the doctrine, weaponry was limited to armaments 
wielded by hand —  swords, farm tools, and halberds. And even after
the invention of the musket, its inconvenience and inaccuracy pre-

2 ^vented police use of ballistic weapons. in this technological

23/ Sherman, supra, 33 Vand. L. Rev. at 75

- 33 -



context, the practical meaning of the deadly force doctrine was 
that suspects could be killed if they resisted arrest in a hand- 
to-hand struggle; it did not mean that they could be killed from 
a distance while they were in flight. These practical considera­
tions were decisively changed by the widespread use of revolvers,

24/
beginning in the 1850's. For accurate and powerful handguns al- 
lowerd, and continue to allow, the police to shoot fleeing suspects 
who pose no immediate threat to anyone.

The effects of the revolutions in police communication and 
weaponry have been compounded by changes in our legal understand­
ing of what constitutes a felony, under common law felony was 
usually used to refer only to crimes punishable by death. As 
Blackstone noted, "the idea of felony is indeed so generally con­
nected with that of capital punishment, that we find it hard to 

28/
separate them." During the period which witnessed the advent of
the revolver, however, the felony laibel became attached to a

26/
steadily broadening array of violations.

Change in the legal definition of felony has been accompanied 
by change in our estimation of the punishments appropriate to crim­
inal misconduct. At common law all felonies were punishable by

2a/ C.- Kennett & J. Anderson, The Gun in America 22 (1975) .
25/ 4 W. BliACKSTONEi COMMENTARIES 98 (1800). :
26,/ Comment, supra, 11 Harv. Civ. Rights - Civ. Lib. L. Rev. 
at 366-367.

- 34 -



death. In its early development, the statutory law of Tennessee 
largely assimilated this common law norm. Hence, during the peri­
od following enactment of the Fourteenth Amendment, the Tennessee

I Z /Code prescribed death as the penalty for a large number of crimes.
As long as many felonies were punishable by death, authoriz­

ing deadly force to effect the arrest of felony suspects was not 
without its logic. For a suspect facing a death penalty could be 
assumed to be a desperate person, motivated to resist arrest by 
all possible means. But the days have long since passed when

28/
''[t] o be a suspected felon was often as good as being a dead one." 
Crimes once considered capital offenses are no longer viewed as 
violations punishable by death. In Tennessee and throughout the 
nation the use of the death penalty has been severely curtailed 
so that it is available only for crimes causing -loss of life under 
special, aggravating circumstances.

It is clear, then that the original premises of the fleeing 
felon doctrine are incompatible with modem developments. A 
dangerous anachronism, the doctrine should be consigned to the 
ancient history that produced it. As Justice Holmes once wrote:

27/ Pub. Stats, of Tenn. § 5 (Supp. 1858-1871).
23/ T. Taylor, Two Studies in Constitutional Interpretation 
28 (196 9).
29/ See Gregg v. Georgia, 428 U.S. 153 (1976); Coker v. Georgia, 
433 U.S. 584 (1977).

- 35 -



It is revolting to have no better reason 
for a rule of law than that it was laid 
down in the time of Henry IV. It is still 
more revolting if the grounds upon which it 
was laid down have vanished long since, and 
the rule simply persists, from blind imi­
tation of the past. '30/

Analysis of remaining modem justifications for the fleeing 
felon doctrine similarly reveals that the possible state inter­
ests cannot justify the deprivation of life. As developed in
Point 1, there are several non-punitive state interests that

3 y
might be claimed in support of the doctrine. However, none of 
them other than the safety interests not implicated in this case 
can justify the imposition of death since the use of deadly force 
is excessive in light of those state interests. As such, the 
"legislative enactments [the Memphis policy and the Tennessee 
statute] . . . [are not] narrowly drawn to express only the legit­
imate state interests." Roe, supra, 410 U.S. at 155.

Even if the court were to consider the state's punishment 
interests in retribution and deterrence —  interests not available 
to justify the use of deadly force because of the principles dev-

30/ Holmes, The Paths of the Law, 10 Harv. L. Rev. 457, 469 (1909)
31/ These state interests are not sufficient to justify use of 
deadly force for another reason. As developed in the affidavits 
of plaintiff's experts. Chief Bracey and Dr. Shemnan, Plaintiff's 
Offer of Proof, Pt. 1, at 9-10; Pt. 2, at 5, the shooting of 
unarmed, non-dangerous fleeing property crime suspects is simply 
not necessary for effective law enforcement.

- 36 -



eloped in Point I —  it would have to conclude that these inter­
ests cannot justify the imposition of death. For these interests 
exist at the time of sentencing as well, and they are not suffi­
cient to justify the imposition of death even for a crime as 
severe as rape. Coker, supra. A fortiori, they cannot justify 
the imposition of death for a lesser crime, even with "the vol­
atile combination of felony and flight. . . . "  Sherman, supra, 33 
Vand. L. Rev. at 84.

III. MEMPHIS' POLICY AUTHORIZING THE SHOOTING OF NON-
DANGERDUS, FLEEING PROPERTY CRIME SUSPECTS VIOLATES 
THE EQUAL PROTECTION CLAUSE BECAUSE IT IS RACIALLY 
DISCRIMINATORY
The arbitrary infliction of death, in a manner so "wanton"

and "freakish" as to be "cruel and unusual in the same way-that
being struck by lightning is cruel and unusual," was enough to
invalidate the imposition of the death penalty without adequate
procedural safeguards. Furman v. Georgia, 408 U.S. 238, 309, 313
(1972) (Stewart, J., Concurring; White, J., concurring). Here,
the imposition of death, while having its wanton and freakish

3 ^
character, is only explainable by one non-arbitrary factor: the 
race of the property crime suspect. Thus, this case presents the
3 ^ This is illustrated by defendant's descriprion of 114 occasions 
in which force was used against fleeing property crime suspects re­
sulting in death or wounding on 33 occasions (17 deaths; 16 wound- 
ings). See Plaintiff's Offer of Proof, Pt. (App. A to Wiley 
Brief).

- 37 -



issue not decided in Furman, that is:
If a statute that authorizes the discretionary im­
position of a particular penalty for a particular 
crime is used primarily against defendants of a 
certain race, and if the pattern of use can be 
fairly explained only be reference to the race of 
the defendants, the Equal Protection Clause of 
the Fourteenth Amendment forbids continued enforce­
ment of that statute in its existing form. Cf.
Yick Wo V. Hopkins, 118 U.S. 356 (1886);

Id. at 389 n.l2 (Burger,J.dissenting) As indicated below.
that aspect of the Memphis use of deadly force policy that allows 
the officer to.shoot non-dangerous, fleeing- property crime sus­
pects is racicLlly discriminatory and violates the Equal Protection 
Clause.

In Arlington Heights v. Metropolitan Housing Corp., 429 U.S, 
252 (1977), the Supreme Court discussed what is necessary to prove 
that a particular policy or law is discriminatory.

[Washington v.] Davis does not require a plaintiff to 
prove that the challenged action rested solely on 
racially discriminatory purposes. Rarely can it be 
said that a legislature or administrative body oper­
ating under a broad mandate made a decision motivated 
solely by a single concern, or even that a particular 
purpose was the "dominant" or "primary" one....
Determining whether invidious discriminatory purpose 
was a motivating factor demands a sensitive inquiry 
into such circumstantial and direct evidence of in­
tent as may be available. The impact of the official 
action —  whether it "bears more heavily on one race 
than another, "Washington v. Davis, supra, at 242,
48 L.Ed.2d 597, 96 S.Ct. 2040 —  may provide an im­
portant starting point. Sometimes a clear pattern 
unexplainable on grounds other than race, emerges from 
the effect of the state action even when the govern­
ing legislation appears neutral on its face. Yick Wo

- 38 -



V. Hopkins, 118 U.S. 356, 30 L.Ed. 220 6 S.Ct.
1064 (1886)___
The historical background of the decision is one 
evidentiary source, particularly if it reveals a 
series of official actions taken for invidious 
purpose...*

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

against non-dangerous fleeing property crime suspects clearly 
"bears more heavily on one race than another" and is "unexplain­
able on grounds other than race." Id. Just a sample of the 
statistical evidence offered by the plaintiff illustrates this 
significant disparity.. Blacks accounted for 84.21% of the property 
crime suspects shot at by Memphis police between 1969 and 1974 
although black comprise only 38.86% of the population and only 
70.5% of those arrested for property crimes. Black citizens were 
shot at ten times more often than white citizens. Controlling for 
differential involvement in property crimes, blacks were still 
more than twice as likely to be shot at —  140% more blacks than 
whites were shot per 1000 property crime aurrests: Memphis police
shot at 4.33. black property crime suspects per 1000 black property 
crime arrests, but only 1.81 white property crime suspects per 
1000 white property crime arrests. Black property crime suspects 
were four times more likely to be wounded (.586 per 1000 versus 
;̂ 113 per 1000), and 40% more likely to be killed (.63 per 1000

- 39 -



versus .45 per 1000).
Evidence produced at the Wiley trial confirms this data.

Although the Wi^ey statistics covered a shorter period, 1969-
1971, they indicated that blacks were shot at disproportionately
in relation to the racial breakdown of property crime arrests,
and that this disproportion was significant at the .02 level
(less than two chances in 100 that the difference was due to
chance). In contrast, the number of black violent crime suspects
who were shot at was proportional to the racial breakdown of

34/
violent crime arrests.

Comparison of shootings by Memphis police officers while 
controlling for race of the victim and nature of the incident 
provide similarly striking data. Analysis of the shooting in­
cidents between 1969 and 1976 collected by the Civil Rights Com

wmission, shows a dramatic disparity between the situations 
where whites were killed and those in which blacks were killed.
Of the blacks shot, 50% were unarmed and non-assaultive, 23.1% 
assaultive but not armed with a gun, and 26.9% assaultive and 
armed with a gun. Of the whites shot, only one was non-assault­
ive —  12.5%, five, or 62.5%, were armed with a gun, and the 
remaining two, or 25% were assaultive but not armed with a gun.

3 3 /

33/ See Fyfe Affidavit, Plaintiff's Offer of Proof, Pt. 3, 
at 14; Wiley record, App. 398, 455.
2 ^  Fyfe Affidavit, Plaintiff's Offer of Proof Pt. 3, at 7.
3 5/ Tennessee Advisory Coiran. to the U.S. Comm'n on Civil Rights,

_ 40 - (continued)



Based on this data, plaintiff's expert, James J, Fyfe —  a 
former New York City Police lieutenant who trained officers in 
the use of deadly force and has a Ph.D. in criminology, specia­
lising in use of deadly force —  would testify that Memphis police 
are far more likely to shoot blacks than whites in non-threatening 
circumstances and that the great disparity in blacks shot by 
Memphis police officers is largely accounted for by the policy 
allowing the shooting of non-dangerous fleeing felons. Between 
1969 and 1976, Memphis police killed 2 unarmed, non-assaultive 
blacks for each armed, assaultive black, but only 0.6 unarmed, 
non-assaultive white for each armed, assaultive white.

Moreover, the historical background of the Memphis Police 
Department is one of entrenched racism in employment, promotion, 
and law enforcement. in 1974, the year young Gamer was shot, 
blacks mede up only 10% of the force and only 3.1% of the offi­
cers over lieutencint (there were no blacks higher than cap—

33/ (cont'd)
Civic Crisis —  Civic Challenge; Police Community Relations in 
Memphis 81 (1978), Plaintiffs Offer of Proof, Pt. 8, at 81 .
36/ Fyfe Affidavit, Plaintiff's Offer of Proof, Pt. 3, at 7. 
Fyfe points out that these figures are not statistically signif­
icant due to the exremely small sample involved.
37/ As long ago as 1874, a "Resolution asking Police Board to 
put 20 colored men on force, lost by vote 16-3" before the City 
Council. Wiley record, App. 335.

- 41 -



tain). The department was repeatedly the agent of enforcement of 
the segregation laws in the 60's, engaging in racial abuse and 
brutality during the sanitation strike in 1968. A 1970 NAACP 
Ad Hoc Committee Report concluded that; "The most common form of 
address by a Memphis police man to a black person appears to be 
■nigger-’'" And, it was acknowledged by Mayor Chandler that, as 
late as 1972,

The black community, speaking generally and in 
a broad sense, perceives the police department 
as having consistently brutalized them, almost 
tehir enemy instead of their friend.... [T]alk- 
ing about in 1972, what you say is absolutely 
true and I would aay almost across the board.

41/
Wiley record, App. 516-17.

38/

38/ community Relations Service, united States Department of 
Justice, Memphis Police amd Minority Community; A Critique (May 
1974), Wiley record, App. 378-79. That same year, an employment 
discrimination lawsuit brought by the Department of Justice was 
settled. The consent decree was designed to increase the hiring 
and promotion of black officers. United States v. City of Memphis, 
Civ. Action No. C-74-286 (W.D. Tenn. 1974).
3Q/ See Wiley record, App. 149-50, 180-81, 181-85.
40/ Id. at App. 360.
4T/ The Ad Hoc Committee Report, id., App. 366-67, noted that;

The young black witnesses before the Committee 
testified to a man that the normal reaction to the 
approach of a patrol car is to run, for fear of 
the consequences of being stopped by the police.
The belief is held by black youths that if they 
lean into a police car to answer questions, they 
will be trapped by the neck by a rolled-up window 
and dragged by the police car. While such a tale 
may partake of myth to a certain extent, an adult 
witness— a professional man of sxibstantial coramTonity 
stature— testified to seeing such an incident in his 
own youth. The fear of such torture is real among

(continued)
- 42 -



Yet another factor confirms the racially discriminatory 
nature of the disparate impact of the Memphis policy regarding 
use of deadly force against non-dangerous fleeing property crime 
suspects. There is testimony in the Garner record that Memphis
officers are, essentially, instructed to use their own judgment

4^' - - ■ •-
in determining when to use deadly force. This consignment is 
"a ready mechanism for discrimination." Rowe v. General Motors 
Corp., 457 F.2d 348, 359 (5th Cir. 1972)(Title VII). Cf■"Avery 
V. State of Georgia, 345 U.S. 559, 562 (1953)(discrimination in 
jury selection). "[A] selection procedure that is susceptibel of
abuse or is not racially neutral supports the presumption of dis­
crimination raised by the statistical showing." Castaneda v. 
Partida, 430 U.S. 482, 494 (1977), citing Washington v. Davis, 
supra, 426 U.S. at 241.

The statistics on rates of firearm discharges per 1000 Mem­
phis police officers bear out this maxim that allowing these sub­
jective determinations lead to racially discriminatory applica­
tions of what may appear to be a neutral policy. Between 1969
41/ (cont'd)

Id.

young blacks, and this fear is reinforced by the 
incidents of gratuitous harrassment and the often 
unpleasant consequences. Young black male wit­
nesses testified to verbal abuse and undignified 
searches; beating and shootings occur all too free 
quently. Police force in such cases was often not 
justified by findings in later judicial proceedings. 
Charges were either dropped or not lodged at all.

4 ^  Gamer record. Volume II. (App.)
- 43 -



and 1974, there were 16.95 shootings of property crime suspects 
per 1000 Memphis police officers, about one in every 53 officers 
used his gun. During this period, whites were shot at a rate 
comparable to this over-all figure: about one officer in every 
75,or a rate of 14.27, per 1000 officers. But, more than one in
every five police officers shot at a black property crime suspect,

43/
a rate of 206.06 per 1000 police officers.

In conclusion, Memphis' policy allowing the shooting of 
non-dangerous fleeing property crime suspects is discriminatory. 
The policy "bears more heavily on one race than another' . . .
[and it] is very difficult to explain on nonracial grounds. . . ." 
Washington v. Davis. 426 U.S. at 242. It must be read against an 
historical record of racism in the Memphis Police Department. 
Moreover, the racial discrimination is the result of the explicit 
policy consigning the decision when to shoot to the individual 
officer's "heavily subjective" discretion without prescribing 
adequate standards. Castaneda, supra, 430 U.S. at 497. See 
Rowe, supra. This case, then, presents a state law and a muni­
cipal policy

in actual operation, and the facts shown estab­
lish an administration directed so exclusively 
against a peirticular class of persons as to war­
rant and require the conclusion that whatever 
may have been the intent of the ordinances as 
adopted, they are applied by the public author-

43/ Fyfe Affidavit, Plaintiff's Offer of Proof, Pt. 3, at 5

- 44 -



ities charged with their administration, and 
thus representing the State itself, with a mind 
so unequal and oppressive as to amount to a prac­
tical denial by the State of that equal protection 
of the laws which is secured to the petitioner, 
as to all other persons, by the broad and benign 
provisions of the Fourteenth Amendment to the 
Constitution of the Uhited States. Though the law 
itself be fair on its face and impartial in appear­
ance, yet, if it is applied and administered by 
public authority with an evil eye and an unequal 
hand, so as practically to make unjust and illegal 
discriminations between persons in similar circvun- 
stances, material to their rights, the denial of 
equal justice is still within the prohibition of 
the Constitution.

Yick Wo V. Hopkins, 118 U.S. 356, 373074 (1886).
Moreover, Memphis is chargeable with the discriminatory pol­

icy effectuated by its officers. Given the historical background 
of the Memphis Police Department and the lack of adequate justi­
fications for the policy other than historically outdated and 
now unsound considerations, "discriminatory intent may be inferred 
from the fact that those acts had forseeable discriminatory con­
sequences.” united States v. Texas Educational Agency, 564 F.2d 
162, 168 (5th Cir. 1977). And, under Monell v. Department of 
Social Services, 436 U.S. 658 (1978), the city is liable because
it was the city's deadly force policy and customs that "caused"

45/
the constitutional violation. Id. at 690-95. Moreover, faced 
with a consistent pattern on the part of its employees —  a pat-

44/ See discussion, supra. Points I and II, 
45/ See discussion, infra. Point V.

- 45 -



t e m  that was made known to the city by lawsuit after lawsuit and 
study after study, the failure of the city to control this behavior 
is a ratification of this racial discrimination as city policy; it 
is "actual knowledge . . . eind acquiesce [nee] ." See Turpin v. 
Mailet, 579 P.2d 152, 168 (2d Cir. 1978); Fialkowski v. Shapp,
405 P.Supp. 946, 950 (E.D. Pa» 1975); Thompson v. Montemuro, 383 
P.Supp. 1200, 1207 (E.D. Pa. 1974); Landman v. Royster, 354 P.Supp. 
1302, 1317-17 (E.D. Va. 1973). gee also, Wright v. McMann, 460 
F.2d 134 (2d Cir. 1972); Stevens v. County of Duchess N.Y., 455
P.Supp. 89, 91 (S.D. N.Y. 1977).

Finally, the fact that the officer who shot young Gamer was

black does
not dispel the presumption of purposeful discrim­
ination in the circtunstances of this case. Because 
of the many facets of human motivation, it would be 
unwise to presume as a matter of law that human 
beings of one definable group will not discrimin­
ate against other members of their group.

Castaneda, supra, 430 U.S. at 499. The evidence of discriminatory 
intent and practices of the Memphis Police Department confixms 
this observation. In 1974, Officer Hymon was only one of a still 
small minority of black officers on the Memphis Police Force. Given 
the depth of the racism in the department and the nature of Mem­
phis' deadly force policy, it is not farfetched to infer that he, 
too, had been affected by the policy and custom of the department —  
that black life is cheap.

- 46 -



IV. THE USE OF HOLLOW POINT, "DUM-DUM" BULLETS CONSTITUTES 
EXCESSIVE FORCE IN VIOLATION OF THE DUE PROCESS CLAUSE

The use of "dum-dvun" bullets violates the Constitution in 
three different ways. First, as previously noted, their use —  

coupled with the training to shoot for the torso in all situations 
—  constitutes an implicit policy to shoot to kill which encour­
ages Memphis police officers to resort to deadly force when it
is not necessary aind thus violates the plaintiff's decedent's

M./
right to life and right not to be subject to punishment.

Second,, the use of armaments not accepted as humane by the
international community and not in use generally in domestic

47/
police departments constitutes conduct which "shocks the con­
science" and cannot be condoned by this Court. See Rochin v. 
California, 343 U.S. 165 (1952). See also Johnson v. Click,
481 F.2d 1028 (2d Cir. 1973).

Third, due process includes the "right of personal security" 
and protects "the individual's physical integrity." Jenkins v. 
Averett, 424 F.2d 1228, 1232 (4th Cir. 1970); Johnson v. Click, 
supra. The use of hollow point bullets is excessive and therefore 
violates these rights. Johnson, supra. Plaintiff does not quest­
ion the need for police officers to be sufficiently armed. But 
the use of "dum-dum" bullets banned by international law because 
of their greatly enhanced wounding power, is clearly excessive and 
therefore violates due process even when used in furtherance of
46/ See discusion, supra, at
47/ See Plaintiff's Offer of Proof, Pt. 1 at 9

- 47 -



legitimate police action. See, e.g., Jackson v. Allen, 376 F.Supp. 
1393 (E.D. Ark. 1974) (physical force used for legitimate purpose 
violates due process if excessive for that purpose —  prison 
guards). The use of hollow point bullets is excessive, especially 
to stop an unarmed, non-dangerous fleeing felony suspect, in the 
same way that the use of a bazooka under these circumstances 
would offend the court's sensibilities.

Finally, the fact that young Gamer might have been killed 
even if he had been shot with a regular bullet does not remove 
liability in this case.. It is black letter law that "if the 
consequences themselves were foreseeable, it is not necessary 
to foresee the manner in which they were brought about." W. 
Prosser, LAW OF TORTS 266 (4th Ed. 1971). See also Petition of 
Kinsman Transit Co., 338 F.2d 708, 724 (2d Cir. 1964). Here, 
the defendant armed its officers with hollow point bullets and 
trained them to shoot at the torso creating a greater risk of 
death. The fact that death in this instance resulted from a head 
wound does not change the culpability of defendant's conduct. In 
fact, death ensued "from the same forces, and to the same class 
of persons." Kinsman, supra, at 725.

- 48 -



V. THE CONSTITUTIONAL VIOLATIONS ENUMEEATED ABOVE FLOWED 
FROM THE POLICIES AND CUSTOMS OF THE MEMPHIS POLICE 
DEPARTMENT AND THE CITY OF MEMPHIS, RENDERING THE 
MUNICIPAL DEFENDANTS LIABLE FOR THE DEATH OF YOUNG 
GARNER
Under Monell, supra, the city is only liable if "action pur­

suant to official mxinicipal policy of some nature caused a consti­
tutional tort." 436 u;S. at 691. This case, like Monell, "un­
questionably involves official policy as the moving force of the 
condtitutional violation. . . . "  at 695.

As developed in Point I, Memphis' policy authorizing the 
shooting of non-dangerous fleeing felony suspects violates the 
Due Process Clause because it meets all the traditional tests 
indicating that the sanction amounts to punishment which cannot be 
inflicted before due process. Young Gamer was shot pursuant to 
that policy "which allows an officer to kill a fleeing felon 
rather than run the risk of allowing him to escape apprehension." 
Gamer v. Memphis Police Dept., 600 F.2d 52, 54 (6th Cir. 1979). 
Here, the officer did no more than follow that policy, he "was 
taught that it was proper to kill a fleeing felon rather than run 
the risk of allowing him to escape." Id. at 53. For these same 
reasons, the shooting of young Gamer and the violation of his 
right to life was caused by the policy of the Memphis Police 
Department and the City of Memphis.

Moreover, the evidence offered by plaintiff establishes that 
the customs of the Memphis Police Department caused the violations

- 49 -



in this case, under Monel1,
it is when the execution of a government's policy 
or custom, whether made by its lawmakers or by 
those whose edicts or acts may fairly be said to 
represent official policy, inflicts the injury 
that the government as an entity is responsible.,...

436 U.S. at 694. Here, officer Hymon was acting pursuant to a 
host of edicts, acts, and customs amounting to a well estad>lished 
policy of liberal resort to deadly force. These include Memphis' 
inadequate disciplinary and review procedures, its inadequate 
training in use of firearms, its inadequate training in when to 
use a firearm, its inadequate training in tactics and other alter­
natives to use of deadly force, and its overemphasis on use of 
deadly force —  particularly in light of its upgrading of its 
firepower to "dvrai-dum" bullets. When each of these Memphis pol­
icies and customs are contrasted to those of other departments as 
presented in Plaintiff's Offer of Proof, they fall short of what 
other departments do in order to minimize use of deadly force in 
situations where it is not necessary to defend life, or indeed to 
apprehend. The totality of these customs telegraph the clear 
message to Memphis police officers that they can use deadly force 
without guidelines and with impunity. This is established by

48/ See Plaintiff's Offer of Proof, Pt. 1 at 3.
49/ See Plaintiffs Offer of Proof, Pt. 10 passim; Pt. 1 at 3-10.

- 50 -



review procedures that discourage complaints regarding use of 
force generally, by consigning the decision to shoot to their

51/discretion and unguided judgment, and by failure to teach and
emphasize alternatives and tactics that would obviate the need

52/
for deadly force.

Moreover, plaintiff's expert testimony would establish that
the content, style, and means of enforcement of municipal deadly
force policies do have a demonstrable effect on police use of
deadly force. A department that adopts guidelines and applies
them seriously will in fact reduce use of deadly force incidents.
This has been the experience in New York where the adoption of
strict guidelines cuid the intensive retraining of veteran officers,
extensive training of new officers, and serious aind sustained
administration of the guidelines has reduced firearm discharges

54/
by approximately 50% since 1973. Moreover, this has been accomp­
lished with an actual increase in officer safety and without

55/
appreciable effect on law enforcement.
50/ See Plaintiff's Offer of Proof, Pt. 8, at 54-80; Pt.l, at 10. 
51/ Gamer record, (Vol. IL (App.)
52/ See Plaintiff's Offer of Proof, Pt. 1, at 5,6,9,10.
53/ See Plaintiff's Offer of Proof, Pt. 1, at 4,11? Pt.2 at 5,5.
54/ See Plaintiff's Offer of Proof, Pt. 1 at 4.
5 ^  Id.

- 51 -



In sum, there can be little doubt that myriad Memphis 
policies and customs are implicated as the cause of the shooting 
death of plaintiff's son. "In this case, City officials did set 
the policies involved . . . training and supervising the police 
force . ► . ," Leite v. City of Providence, 463 F.Supp. 585, 589 
(D. R.I* 1978), exposing the city to liability under Monell. These 
policies not only cause constitutional violations, they are them­
selves violations of the constitutional rights discussed above. 
For:

If a municipality ... trains its officers in a 
reckless or grossly negligent manner so that 
future police misconduct is almost inevitable, 
the municipality exhibits "deliberate indif­
ference" to the resulting violations of a citi­
zen's constitutional rights. In such a case, the 
municipality may fairly be termed as acquiescing in 
and implicitly authorizing such violations. In 
light of the responsibility, authority, and force 
that police normally wield, a municipality is 
considered to have actual or imputed knowledge 
of the almost inevitable consequences that arise 
from the ... grossly inadequate training and super­
vising of a police force.

Leite. supra, 463 F.Supp. at 590-91. Here, there is evidence of 
such grossly inadequate training such as the testimony at the 
original hearing that new recruits are told to use their judgment 
in deciding to use deadly force, but not given adequate guide­
lines to structure that judgment, and in the heavy reliance in 
such training on the "Shoot/Don't Shoot" film, vdiich plaintiff's 
expert Chief Bracey would testify has a negative effect on an in-

- 52 -



experienced recruit, maiking him jumpy and more likely to employ 
deadly force. Moreover, as noted above, the policies and 
customs of Memphis go beyond this grossly negligent training to 
include practices that actually encourage unnecessary use of 
deadly force. These too constitute- "deliberate indifference" 
to the constitutional rights of Memphis citizens under the 
Leite standard, as well as constituting policies and customs 
that make the city liable under Monel1.

CONCLUSION
For the foregoing reasons, plaintiff contends that he is . 

entitled to relief for the shooting death of his minor son.
Respectfully submitted.

STEVEN L. WINTER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

WALTER LEE BAILEY, JR.
Suite 901, Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff

56/ See Bracey Affidavit, Plaintiff's Offer of Proof, Pt. 
at 9,

- 53 -



CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing 
Plaintiff's Memorandim of Law has been served by placing 
same in the United States mail, postage prepaid, to 
Henry L. Klein, Esquire, 100 North Main Building, Suite 
3500 Memphis, Tennessee 38103, this day of June, 1980,

L/! ■■
STEVEN L. WINTER — ■ O,

- 54 -



nr THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER^ father and next of kin of 
EDWARD GARNER^ a deceased minor.

Plaintiff,
V.

MEMPHIS POLICE DEPARTMENT, CITY OF 
MEMPHIS, TENNESSEE: WYETH CHANDLER, 
Mayor of Memphis; and JAY W. HUBBARD, 
Director of Memphis Police,

Defendants.

PLAINTIFF'S OFFER OF PROOF

CIVIL ACTION 
NO. C-75-145

Plaintiff's Offer of Proof is supplemental to matter pre­
viously submitted to the Court in Gamer v. Memphis Police 
Department. The Offer of Proof is divided into 15 parts.

Part 1 is an affidavit submitted by William R. Bracey, 
Chief of Patrol, New York City Police Department.

Part 2 is an affidavit siabmitted by Lawrence W. Sherman, 
Ph.D., Director of Research at the Police Foundation in Washing­
ton, D. C.

Part 3 is an affidavit submitted by James J. Fyfe, Ph. D., 
Associate Professor at the American university. College of 
Public Affairs. Enclosed is a copy of James Fyfe's affidavit.

7nn



The original affidavit with a notarized signature is being sent 
immediately to the Court under separate cover.

Part 4 is a Preliminary Report filed January 18, 1972. Mr.
C.H* Cole, Chief Inspector, Investigative Services Bureau, Memphis 
Police Department. This report stemmed from the incident that 
served as the basis of Ira Lee Madison, et al. v. Memphis Police 
Department, et al. in the united States District Court for the 
Western District of Tennessee, Western Division.

Part 5 is a deposition of Edward R. Fedrick, taken November 
27, 1979 concerning an incident that served as the basis of 
Katherine Madison,et al. v. The Memphis Police Department, et al. 
Civ. Action No. C-73—21 (W.D. Tenn.)

Part 6 is a deposition of wyeth Chandler, taken December 19, 
1979 concerning matters related to Katherine Madison, et al., v.
The Memphis Police Department,et al. Civ. No. C-73-21 (W.D. Tenn.)

Part 7 is a deposition of Winslow Chapman, taken December 
27, 1979 concerning matters related to Katherine Madison, et al.,
V. The Memphis Police Department, et al. Civ.No. C-73-21 (W.D.Tenn.)

Part 8 is an excerpt from Civic Crisis - Civic Challenge: 
Police-Commxinitv Relations in Memphis —  A report prepared by the 
Tennessee Advisory Committee to the United States Commission on 
Civil Rights, August 1978.

Part 9 is an excerpt from A Commiinity Concern; Police Use of 
Deadly Force, United States Department of Justice, Law Enforcement

7!U
-  2  -



Assistance Administration, January 1979.
Part 10 is a compilation of regulations governing the use 

of deadly forct in forty-five metropolitan police departments.
Part 11 is a set of materials employed by the New York City 

Police Department to train officers in the use and non-use of 
deadly force.

Part 12 is a compilation of raw data concerning arrests made 
by the Memphis Police Department, 1963-1974. This data was pro­
duced by the defendants in Wiley v. Memphis Police Department,
Civ. Action No. C-73-8, Mem. Op. (W.D. Tenn. June 30, 1975).

Part 13 consists of Appendices A and B in plaintiff's brief 
in Wiley v. Memphis Police Department, Civ. Action No. C-73-8,
(W.D. Tenn. June 30, 1975). Appendix A details incidents of 
police use of deadly force to apprehend property crime suspects. 
Appendix B outlines the rules and regulations of the Boston 
Police Department governing use of deadly force.

Part 14 consists of excerpts from the trial record in Wiley 
V. Memphis Police Department, Civ. Action No. C-73-8, Mem. Op.
(W.D. Tenn. June 30, 1975). The first excerpt is from Volume I, 
pages 88-212. The second excerpt is from Volume II, pages 303- 
579. (We have repaginated this part of our Offer of Proof for the 
convenience of the court).

We request that the Court take judicial notice of this record 
pursuant to Federal Rule 201, Fed. Rules Evid. 28 U.S.C.A. (West

7GP. - 3 -



1975) and the common practice of the federal judiciary. This 
record stems from an adjudication of this Court and the
power of a court to take judicial notice of its own cases is 
amply established by a multitude of cases." Wright and Miller,
9 Federal Practices and Procedures Civil § 2410, at 359 (1971). 
Judicial notice of a record developed in an earlier case is es­
pecially well groTinded in civil rights cases which often involve 
years of litigation into a continuing state of affairs. See, 
for example, Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); 
Gilmore v. City of Montgomery, 417 U.S. 556 ( ); Blacks
united for Lasting Leadership v. City of Shreveport, La., 71 
F.R.D. 623 (W.D. La. 1976).

Part 15 is an excerpt from Police Use of Deadly Force 
(Police Foundation,, 1977) .

Respectfully,submitted,,

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

WA TER LEE BAILEY, JR.
Suite 901, Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff
r»(bo - 4 -



a

Certificate of Service

I hereby certify that a copy of the foregoing 
Plaintiff's Offer of Proof has been served by placing 
same in the United States mail, postage prepaid, to 
Henry L. Klein, Esquire, 100 North Main Building, Suite 
3500, Memphis, Tennessee 38103, this ^ day of June, 
1980.

Steven L. Winter

7G4 - 5 -