Motion for Reconsideration; Memorandum in Support of Motion for Reconsideration

    March 10, 1980

J. Franklin Reid, Clerk
United States District Court
For the T'jastern District of Tennessee
850 Federal Building
Memphis, TN 38103
Re: Garner v. Memphis Police Department
_____Civil Action No. C-75-145__________
Dear Sir:
Please find enclosed the original and one copy 
of Plaintiff's Motion for Reconsideration and 
Memorandum in Support of Motion for Reconsider­
ation, pursuant to Fed. Civ. P. 59(3). Please 
file these in accordance with the local rules.
Thank you for your cooperation in this matter.

Sincerely,

Steven L. Winter
Enclosures
cc: Henry L. Klein, Esq.
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March 10, 1980

Hon. Harry W, Wellford
Uniled States District Court
For the Western District of Tennessee
957 Federal Building
Memphis, TN 38103
Re: Garner v. Memphis Police Department

Civil Action No. C-75-145.
Dear Judge Wellford:
Please find enclosed one copy of Plaintiff's 
Motion for Reconsideration and Memorandum 
in Support of Motion for Reconsideration, 
pursuant to Fed. Civ. P, 59(3).
Thank you for your consideratLon of this 
matter.

Sincerely,

Steven L. Winter
Enclosures
cc: Henry L. Klein, Esq.

SLW:mm

10  C O L U M B U S  C I R C L E 5 8 6 - 8  3 9 7 N E W  Y O R K ,  N . Y .  1 0 0 1 9



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

WESTERN DIVISON

;! CLEAMTEE GARNER, father and next of kin j of Edward Eugene Garner, a deceased 
I! minor.

Plaintiff,
vs.

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

Defendants.

CIVIL ACTION 
No. C-75-145

MOTION FOR RECONSIDERATION

Plaintiff respectfully moves this Court to set aside its 
order of February 29, 1980, and the judgment entered herein on 
March 3, 1980, and to grant plaintiff a rehearing for the 
following reasons:

1. The Court erred in ruling that plaintiff should not be 
afforded the opportunity to adduce additions! evidence, or in the 
alternative, to make an offer of proof before decision in this 
case.

2. The Court erred in deciding the ultimate questions of 
law posed on remand without affording the plaintiff the oppor­
tunity to fully brief and argue the merits.

3. The Court erred in upholding the constitutionality of 
the policies and customs of the Memphis Police Department regard- ; 
ing use of deadly force by Memphis police officers.

Wherefore, plaintiff respectfully moves this Court for 
reconsideration and for an extention of ninety (90) days after 
the granting of this Motion for Reconsideration in which to file 
a full brief on the merits and an offer of proof to be followed by

4 S'
r



oral argument, 
jj Dated: March 1980

Respectfully submitted.

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

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

Attorneys for Plaintiff

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

WESTERN DIVISION

CLEAMTEE GARNER, father and next of kin of 
Edward Eugene Garner, a deceased minor.

Plaintiff,
vs.
MEMPHIS POLICE DEPARTMENT, City of Memphis 
Tennessee; WYETH CHANDLER, Mayor of 
Memphis; and JAY W. HUBBARD, Director 
of Memphis Police,

Defendants.

CIVIL ACTION 
No. C-75-145

MEMORANDUM IN SUPPORT OF 
MOTION FOR RECONSIDERATION

On February 29, 1980, this Court entered an order conclud­
ing that further evidentiary proceedings were inappropriate under 
the circumstances. It further ordered that the decision in 
Monell V. Department of Social Services, 436 U.S. 558 (1978), 
did not require reconsideration of this Court's previous opinion, 
despite the remand for reconsideration by the Sixth Circuit in 
Garner v. Memphis Police Department, 600 P.2d 52 (6th Cir. 1979).: 
Finally, the Court perfunctorily answered the four questions posed 
by the Sixth Circuit for determination on remand, and subsequently

iI
on March 3, 1980, entered judgment in favor of the defendants. I 

Plaintiff respectfully moves this Court pursuant to Fed. R. j
i
ICiv. P. 59(3) to reconsider and vacate the judgment. j
I"[A] motion which asks the court to vacate j

and reconsider, or even to reverse its prior I
holding, may properly be treated under Rule 59(e) j
as a motion to alter or amend the judgment."

Smith V. Hudson, 600 F.2d 50 (6th Cir. 1979). i
This Court erred in holding that plaintiff was barred from

adducing additional evidence "by established principles or res

50



judicata." Memorandum Op. at 9. Only the judgment for the indi­
vidual defendant Hymon was affirmed by the Sixth Circuit. The {I
judgment in favor of the City was specifically remanded by the I
Sixth Circuit for redetermination by this Court. Plainly then, 
the principles of res judicata do not apply because there was no ! 
binding judgment on that issue in this case. i

I

Having ruled against the plaintiff on whether there should 
be further hearings in this case, the Court further erred in 
proceeding to determine the merits without affording the plaintiff 
a full opportunity to argue and be heard. i

i
IA fundamental requirement of due process is "the {

opportunity to be heard." Grannis v. Ordean, 1
234 U.S. 385. It is an opportunity which must |
be granted at a meaningful time in a meaningful 
manner.

Armstrong v. Manzo, 380 U.S. 545, 552 (1955). "Nor is there any 
doubt that notice and hearing are prerequisite to due process 
in civil proceedings." Joint Anti-Fascist Refugee Committee v. 
McGrath, 341 U.S. 123, 164 (1951) (Frankfurter, J., concurring). 
Here, plaintiff never had the opportunity to argue or brief the 
merits of the issues posed on remand. While it is true that 
plaintiff filed memoranda and that oral argument was heard on 
December 14, 1979, all of these memoranda and arguments addressed 
only the issue of whether further hearings should be held. The 
merits were discussed only incidentally, if at all. Indeed, dur­
ing oral argument on December 14, 1979, this Court specifically 
asked plaintiff's counsel what procedures would be necessary for 
determination if the Court were to deny a hearing. In plaintiffs 
memoranda of January 14, 1980, submitted pursuant to the Court's 
specific request, plaintiff requested that; he be allowed to 
formulate and tender an offer of proof as to what would have been 
presented at trial; he be allowed to submit a full brief on the 
legal and factual issues of the case; and that there be a full 
oral argument after the submission of the brief and the proffer.

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Anything less would be a denial.of the opportunity to be heard 
"at a meaningful time and in a meaningful manner." Armstrong, 
supra.

Accordingly, plaintiff respectfully moves this Court for 
reconsideration of its judgment and order and that he be given 
ninety (90) days from the time of the granting of this Motion |ifor Reconsideration in which to file a full brief on the merits \

I

and an offer of proof. Plaintiff further requests oral argument be 
fore this Court after the submission of the brief and the proffer. ,

Respectfully submitted,

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

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

Attorneys fo Plaintiff 

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion for I

Reconsideration and Memorandum in Support of Motion for Recon- !
Isideration have been served by United States mail, postage prepaid 

to Henry L. Klein, Esq., 100 No. Main Building, Suite 3500, !
I

Memphis Tennessee 38103, this ___ day of March, 1980. i

Steven L. Winter

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