Supplementary Appendix

    No. 83-1035

In The

^prem c Court of tl}e Hnitê i ^atca
October Term, 1983

The State Of Tennessee, 
Appellant,

vs.
Cleamtee Garner, 

Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

SUPPLEMENTARY APPENDIX

William M. Leech, Jr.
Attorney General & Reporter 
State of Tennessee

Counsel o f Record for the 
State of Tennessee 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6474

Jerry L. Smith 
Assistant Attorney General 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477



m



— A-1

No. 83-1035

In The

Court of tl}e United Slates
October Term, 1983

The State Of Tennessee, 
Appellant,

vs.
Cleamtee Garner, 

Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

SUPPLEMENTARY APPENDIX

The State of Tennessee, appellant herein, respectfully submits 
for the Court’s consideration this Supplementary Appendix to 
the Jurisdictional Statement heretofore filed by the appellant in 
this case. This Supplementary Appendix consists o f the opinion 
in this case of the United States District Court for the Western 
District of Tennessee, Western Division, the Honorable Harry 
W. Wellford, Judge, presiding.



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

WESTERN DIVISION

— A-2 —

No. C-75-I45

Cleamtee Garner, etc. 
Plaintiff,

V.

Memphis Police Department, et al.. 
Defendants.

ORDER

(Filed February 29, 1980)

Plaintiff brought this civil rights action in April of 1975 seek­
ing damages for the shooting death of his son, who was killed by 
the police officer while attempting to flee from arrest. Named as 
defendants were the Memphis Police Department; the City of 
Memphis; Wyeth Chandler, Mayor of Memphis; and E. R. 
Hymon, the Memphis police officer who fired the shot that 
caused young Garner’s death. The defendants other than Of­
ficer Hymon were sued on the grounds that they failed to exer­
cise due care in the hiring, training, and supervision of officers 
and also on the grounds that their policies authorizing the use of 
deadly force against nonviolent felony suspects and the use of 
hollow point bullets were unconstitutional. In addition, plain­
tiff asserted that lethal force would not have been employed had 
his son been white.

Plaintiff’s complaint purported to assert an action for 
damages under 42 USC §§ 1981, 1983, 1985, and 1988 to redress



alleged deprivations of rights secured by the Fourth, Fifth, 
Sixth, Eighth and Fourteenth Amendments to the United States 
Constitution.

By Order of August 18, 1975, this Court ruled that plaintiff 
could not utilize 42 USC § 1983 and 28 USC § 1343 to assert 
claims against the City of Memphis or the Memphis Police 
Department since at that time, prior to the decision in Monell v. 
Department o f  Social Services, 436 U.S. 658 (1978), those en­
tities were not “ persons” within the meaning of § 1983. See 
Monroe v. Pape, 365 U.S. 165 (1961). The Court nevertheless 
invoked jurisdiction over both of these defendants under 28 
USC § 1331, relying on Bivens v. Six Unknown Named Agents, 
403 U.S. 388 (1971).

Following a bench trial, the Court held that the training pro­
grams and guidelines of the Police Department regarding the 
use of lethal force were adequate and that neither the City nor 
the Police Department could be found negligent on that basis. 
See Memorandum Opinion, November 29, 1976.' The Court 
further held that the use of hollow point bullets, based on the 
proof and evidence presented, was not implemented merely for 
the infliction of excessive punishment and did not violate stan­
dards of civilized conduct or “ shock the conscience.” See 
Rochin v. California, 343 U.S. 165 (1952).

Police Department officials testified that the department 
became concerned when the type of bullets previously used proved 
ineffective at stopping assailants and resulted in the death of 
a Memphis policeman. After conducting comparative tests, the

— A-3 —

' It is noteworthy that although plaintiff in this case failed to 
establish negligence on the part of defendants, even a showing of 
negligence may be insufficient to establish liability under § 1983. See 
Gomez v. Toledo, ^ 2  F.2d 1018 (1st Cir. 1979). The decision in 
Gomez held that a § 1983 plaintiff must establish malice or 
recklessness. 602 F.2d at 1020.



A-4 —

department found the hollow point bullets more effective in this 
regard and also less likely to ricochet and injure innocent 
bystanders. There was also evidence that other police depart­
ments and the FBI used such ammunition. See Trial Transcript, 
Vol. III. Finally, the evidence showed that, under the cir­
cumstances of the wounding of Garner, death would have oc­
curred regardless of the type bullet used, thus preventing any 
claim for compensatory damages under this particular theory of 
liability.

The Court additionally noted that the constitutionality of 
Tenn. Code Ann. § 40-808, permitting a city to authorize its of­
ficers to use deadly force against fleeing felons, had been upheld 
previously in Cunningham v. Ellington, 323 F.Supp. 1072 
(W.D. Tenn. 1971) (three-judge court. Chief Judge Phillips par­
ticipating).

Cunningham v. Ellington, supra, upheld the use of lethal 
force against fleeing felons, armed or otherwise, when no other 
effective alternatives were available to effect arrest and to pre­
vent escape. Subsequent Sixth Circuit decisions have noted this 
holding with approval. For example, the Sixth Circuit panel in 
Wiley V. Memphis Police Department, 548 F.2d 1247, 1251, 
cert, denied, 434 U.S. 822 (1977), expressly stated that the deci­
sion in Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), cert, 
denied, 409 U.S. 1114 (1973), had held the Tennessee statute to 
be constitutional. Under these circumstances, this Court declined 
to reconsider further the constitutionality of the use of deadly 
force by the Memphis Police Department per se, rather con­
sidering the adequacy of its policies and regulations in safeguard­
ing previously delineated constitutional rights.

Intervening decisions in this Circuit and elsewhere provide 
little justification for re-examining the facial validity of the Ten­
nessee statute. The only decision noted which held the use of 
deadly force against fleeing felons to be unconstitutional was 
vacated by the Supreme Court. See Mattis v. Schnarr, 547 F.2d 
1007 (8th Cir.), vacated as advisory opinion sub nom., Ashcroft



V. Mattis, 431 U.S. 171 (1977). This decision was strongly 
criticized by the Sixth Circuit in Wiley v. Memphis Police 
Department, 548 F.2d 1247, 1252-53 (1977), cert, denied, 434 
U.S. 822 (1977).

In addition, the Second Circuit in Jones v. Marshall, 528 F.2d 
132 (2d Cir. 1975), held constitutional a Connecticut law afford­
ing a privilege to police officers to use deadly force when they 
reasonably believe that a felony has been committed and that 
force is necessary to effect arrest, a law virtually identical to that 
in Tennessee. In Marshall, the fleeing felon was suspected of 
auto theft and there was no threat of deadly force by the 
suspect. The Second Circuit refused to impose a federal con­
stitutional requirement that deadly force be employed by of­
ficers only when the crime suspected involves a threat to death 
or bodily injury, holding that the state must be given some 
leeway in legislating in this sensitive and contested area. Id. at 
139-42.

Finally, it should be noted that although the evidence 
presented at trial in this case suggested that Garner appeared 
unarmed, the officers could not have known this with certainty, 
nor could they have known whether the crime he had apparently 
committed was against persons or against property only. This 
recurring dilemma exposes the difficulty with any statute that 
attempts to restrict the use of deadly force only to particular 
types of offenses or in which the fleeing felon is armed.

Finally, the Court found that in view of all surrounding cir­
cumstances, Officer Hymon had acted without malice and 
within his responsibilities as a police officer under the guidelines 
and policies of the Memphis Police Department.^

— A-5 —

 ̂The Court further noted that Hymon had a competent record as a 
police officer and that he was the type person who was a desirable 
police recruit because of his education, background, ability, and race.



— A-6 —

On appeal, the Sixth Circuit upheld this Court’s holding as to 
Officer Hymon, but remanded the case against the City for 
“ reconsideration” in light of Monell v. Department o f  Social 
Services, supra, which as noted before, reversed Monroe v. 
Pape, supra, in holding that a city or municipal agency may be 
held liable as persons in damages under § 1983 for constitutional 
deprivations that result from a “ policy or custom” followed by 
the City. 436 U.S. at 694, n. 66. The remand noted that a 
qualified immunity insulated the officers and officials in the 
case from personal liability, but asserted that the following 
questions remain open under Monell:

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

2. If not, is a municipality’s use of deadly force under 
Tennessee law to capture allegedly non-dangerous 
felons fleeing from nonviolent crimes constitutionally 
permissible under the fourth, sixth, eighth, and four­
teenth amendments?

3. Is the municipality’s use of hollow point bullets con­
stitutionally permissible under these provisions of the 
Constitution?

4. If the municipal conduct in any of these respects 
violates the consitution, did the conduct flow from a 
‘policy or custom’ for which the City is liable in 
damages under Monell?”

600 F.2d 52, 55 (6th Cir. 1979).

After carefully reviewing the earlier proceedings in this case 
as well as subsequent submissions by both parties, and after 
hearing further argument by their counsel, this Court has dif­
ficulty in determining how the decision in Monell has any effect 
on this Court’s prior decision and it is concluded that further 
evidentiary proceedings are inappropriate under all of the cir­
cumstances.



I. SCOPE OF INITIAL TRIAL AND HOLDING

Plaintiff’s broad complaint in this case alleged that the killing 
of his son violated the latter’s constitutional right and was the 
direct and proximate result of the following alleged actions of 
the City and Police Department: 1) hiring an individual un­
qualified for the job, 2) allowing the use of deadly force against 
suspects without providing adequate training; 3) allowing the 
use of hollow point bullets; and 4) authorizing the use of deadly 
force against “ nonviolent” felony suspects. Plaintiff further 
asserted that his son would not have been shot had he been 
white.

Although rejecting plaintiff’s prc-Monell attempt to invoke 
the C ourt’s jurisdiction under 42 USC § 1983 and 28 USC § 
1343(3) with respect to the City and Police Department, the 
Court held that jurisdiction over both these defendants was pro­
perly invoked under the Fourteenth Amendment and the 
general federal question statute, 28 USC § 1331. See Bivens v. 
Six Unknown Named Agents, 403 U.S. 388 (1971) (“ federal 
courts do have the power to award damages for violation of 
‘constitutionally protected interest’ ” ); see also Bosely v. City o f  
Euclid, 496 F.2d 193 (6th Cir. 1974).

Thus, as a result of the Court’s exercise of jurisdiction under 
§ 1331, the City of Memphis was potentially liable in damages 
for each and all the constitutional violations asserted by plain­
tiffs under 42 USC § 1983, who had full opportunity to develop 
proof and evidence on each of the issues raised.^

At trial, which lasted several days, plaintiff submitted 
substantial evidence concerning the policies, practices, and 
training programs of the City and Police Department with 
respect to the use of lethal force, including testimony regarding

— A-7 —

 ̂Plaintiff’s very competent counsel is now a high ranking member 
of the United States Department of Justice.



the use of such force against suspects who, upon investigation, 
were, in fact, unarmed. In addition, considerable evidence was 
introduced concerning the utilization of hollow point ammuni­
tion.'*

Following presentation of proof, counsel for defendant noted 
that plaintiff had presented no evidence to substantiate the 
assertion that his son had been denied equal protection on the 
basis of race. After counsel for plaintiff expressed no desire to 
pursue this facet of the case further, the Court disposed of the 
issue summarily.^

As noted above, the Court considered all claims against all 
defendants (except for the dismissed equal protection claim) 
and the evidence presented on each claim in its Opinion of 
November 29, 1976. Finding that plaintiff had failed to 
establish any constitutional violations, the Court ordered judg­
ment in favor of all defendants.

— A-8 —

" The Court has reviewed the full record carefully in light of the re­
mand in this respect, as well as others considered.

’ This Court did have occasion to consider an equal protection 
challenge in an earlier, somewhat similar case, Wiley v. Memphis 
Police Department, No. C-73-8 (W.D. Tenn. June 30, 1975), a ff’d., 
548 F.2d 1247 (6th Cir.), cert, denied, 434 U.S. 822 (1977). This Court 
found that plaintiff in Wiley failed to establish discriminatory intent 
on the part of defendant was affirmed on appeal. The reference by the 
circuit panel in this case to statistics introduced in Wiley leaves this 
Court somewhat puzzled as to their relevance here. In any event, 
plaintiff in the present action offered no evidence whatsoever to sup­
port his claim of racial discrimination; in Wiley, as the Court recalls 
it, there were assertions that the white police officers involved would 
not have fired at the fleeing suspect had he been white instead of 
black. There were distinct racial overtones in that case not pursued by 
able counsel here despite the opportunity to do so.



A-9

II. EFFECT OF MONELL V. DEPARTMENT 
OF SOCIAL SERVICES

To discern the effect of Monell on the instant case, 42 USC § 
1983 creates no independent rights or protections, but merely 
provides a federal cause of action for violations of rights confer­
red by the Constitution and perhaps by other federal statutes. 
As the Supreme Court recently stated: “ one cannot go into 
court and claim a ‘violation of § 1983’—for § 1983 by itself does 
not protect anyone against anything.” Chapman v. Houston 
Welfare Rights Organization, 441 U.S. 600, 617 (1979).

The decision in Monell therefore simply makes municipalities 
liable under § 1983 if and when they violate rights conferred by 
the Constitution, provided the deprivation results from 
municipal policy or custom. In the earlier proceeding in this 
case, as a result of the Court’s recognition of a direct action 
under the Fourteenth Amendment and jurisdiction premised on 
28 USC § 1331, the City was potentially liable for all the con­
stitutional violations then and now alleged by plaintiff.® This 
potential liability would have been no greater, no different, had 
the Court exercised jurisdiction under § 1983 and 28 USC § 
1343.’ Since plaintiff’s constitutional claims received full and 
careful consideration under § 1331, reconsideration under 
Monell with additional evidentiary hearings would be inap-

® Although some of the constitutional provisions relied upon by 
plaintiff are of questionable application to this case, pertinent state 
actions as to these claims are incorporated through Fourteenth 
Amendment application. See Sibron v. New York, 392 U.S. 40 (1968); 
Gideon v. Wainwright, 372 U.S. 335 (1963); Robinson v. California, 
370 U.S. 660 (1962).

’ Potential municipal liability could conceivably be less extensive 
under § 1983 because of the necessity of “policy or custom” prescrib­
ed in Monell. Compare Leite v. City o f Providence, 463 F.Supp. 385 
(D.R.I. 1978) (since Congress in fact provided an adequate remedy 
under § 1983, no reason exists to imply a cause of action under § 
1331).



A-10 —

propriate. Plaintiff has no new “ cause of action” as a result of 
the decision in Monell and is bound by the previous judgment 
which we reiterate holding that the City and Police Department 
did not violate the Constitution.* The present effort by plaintiff 
to reopen the case and introduce additional evidence on issues 
already decided is barred by established principles of res 
judicata.

There is pending before the Supreme Court at present one 
case which dealt with similar issues in an action involving 42 
u s e  § 1983 charges against a municipality, in which Bivens v. 
Six Unknown Named Agents, supra, rationale had been applied 
prior to Monell. In that case, Owen v. City o f  Independence, 
supra, the Supreme Court remanded to the Court of Appeals 
“ for further consideration in light of Monell, ” supra, a decision 
rendered in 560 F.2d 925 (8th Cir. 1977). That Court held, as 
did this Judge, that 28 USC § 1331 authorized an action for 
damages for alleged constitutional violations against a city 
whether or not it was a “ person” subject to suit under 42 USC § 
1983. On remand, interpreting Monell, 436 U.S. at 695, 701, 
707-08, 712-13, the Court of Appeals stated:

. . . We imply from the Court’s discussion of immunity 
that local governing bodies may assert a limited immunity 
defense to actions brought against them under section 
1983.

* Since defendants were found not to have violated the Constitution 
in any respect and since the Court deemed the facial validity of the 
Tennessee law to have been previously decided, the availability of a 
qualified immunity for municipalities need not now be considered. In 
the absence of any actions that may result in a finding of liability, the 
question of immunity is immaterial.

Nevertheless, the absence of any evidence of bad faith in this case 
would probably immunize defendants from liability under the 
qualified municipal immunity in § 1983 actions recognized by an in­
creasing number of courts. See Sala v. County o f Suffolk, 604 F.2d 
207 (2d Cir. 1979); Owen v. City o f Independence, 589 F.2d 335 (8th 
Cir. 1978) (Supreme Court Appeal Pending); Morgan v. Sharon, Pa. 
Board o f Education, A ll F.Supp. 1157 (W.D. Pa. 1979).



— A-11

Owens, supra, 589 F.2d 337.

That Court expressly recognized prior to 1978, a good faith 
defense available to the municipality to a claim for damages for 
an alleged constitutional violation. Applying Monell, it held 
that “ a limited immunity will apply to claims for equitable relief 
against municipalities.” 589 F.2d 338.

Applying the Owen rationale, under the evidence presented to 
this Court, the City of Memphis has established a good faith 
defense. The City of Memphis also was entitled to claim a 
limited immunity in light of the evidence presented on plaintiff’s 
constitutional allegations against it and other defendants in the 
trial of this cause. The very allegations made by plaintiff in this 
case against the City, and as to which he was afforded an oppor­
tunity to present evidence, related to policies and procedures 
allegedly established or utilized by the City and the Memphis 
Police Department, including its hiring and training practices.

In summation, then, the Court believes that each of the 
specific questions posed on remand have previously been ad­
dressed and answered in the Court’s prior Memorandum Opin­
ion, but this Judge has carefully re-examined the record, its 
notes, and the circumstances of the prior trial in light of the re­
mand and Monell, supra.

The answer to question No. 1 is “ yes” based upon Owen, 
supra, and cases cited. Whether or not the City has such im­
munity, however, plaintiff has failed to make out a prima facie 
case of any claimed constitutional violation.

The answer to question No. 2 would also seem clearly to be 
“ yes” in light of prior authorities cited, particularly Cunn­
ingham V. Ellington, supra, which held squarely on similar facts 
that Tenn. Code Annot. 40-808 met federal constitutional stan­
dards on its face and that it was ‘‘not unconsitutional” in the 
face of similar attacks made by the same counsel involved in this 
case. 323 F.Supp.l076. (Two of the present Judges of the Sixth



— A-12

Circuit Court of Appeals participated in that decision as well as 
the present Chief Judge of this Court.)

The answer to question No. 3 was answered “ yes” in light of 
the evidence presented and the opportunity to present any perti­
nent proof relating to a constitutional challenge to this policy 
and practice. Absent further persuasive proof and evidence in 
another factual context, this Court would still answer “ yes” to 
this inquiry.

As to question No. 4, any answer would be purely speculative 
and conditional since municipal conduct referred to in prior 
questions was not determined in these respects to violate the 
Constitution.

The Court concludes therefore that judgment should issue for 
defendants, including the City of Memphis and the Memphis 
Police Department in light of Monell v. Department o f  Social 
Services, supra.

It is so ORDERED this 29th day of February, 1980.

/ s /  Harry W. Wellford
Harry W. Wellford, Judge 

United States District Court





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