Brief in Opposition

    m NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

Suite 1600
99 Hudson Street
New York. N.Y. 10013-2897

National Office

(212)219-1900 Fax: (212) 226-7592

February 14, 1994

Larry Bush
c/o Byron S. Adams
1220 L Street, N.W.
Suite 2B
Washington, D.C. 20005

Re: Memphis Police Department, et al., v. Cleamtee Garner No. 93-1142
Brief in Opposition

Dear Mr. Bush:

Enclosed per our discussion is a copy of Respondent’s Brief in Opposition. In 
addition to the briet I have enclosed the letter to the Clerk and the Certificate of Service. 
In addition to the forty copies to the Court and the service copies, please send me five 
copies of the brief and two copies to co-counsel, Walter L. Bailey, Jr.

Thank you for your attention to this matter.

Sincerely,

Clyde E. Murphy 
CDunsel for Respondent

cc: Walter L. Bailey

Corttnbutfons art The NAACP Legal Defense A Educational Fund. Inc. (LDF) is not part
for U.S. of the National Association for die Advancement of Colored People

ituomf tax purposes. (NAACP) although LDF was founded by the NAACP and shares its 
commitment to equal rights. LDF has had for over 30 years a separate 
Board, program, staff, office and budget.

Regional Offices 

Suite 301
1275 K Street. NW 
Washington, DC 20005 
(202) 682-1300 
Fax: (202) 682-1312

Suite 208
315 West Ninth Street 
Los Angeles. CA 90015 
(213) 624-2405 
Fax: (213) 624-0075



mt NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

National Office

Suite 1600 
99 Hudson Street
New York, N.Y. 10013-2897 (212) 219-1900 Fax: (212) 226-7592

February 14, 1994

Hon. William K. Suter
Clerk, Supreme Court of the United States
Washington, D.C. 20543

Re: Memphis Police Department, et al., v. Cleamtee Gamer 
No: 93-1142

Dear Mr. Suter:

Enclosed please find for filing in the above referenced case, forty copies of the Brief 
in Opposition of the Respondent. The Certificate of Service is also included.

Thank you for your attention to this matter.

Respectfully^bmitted.
V

Clyde E. Murphy^,-'^— , 
Counsel fo r.^ i:e^ o iid ^

cc: All Counsel

Contributions are The NAACP Legal Defense & E<lucationai Fund, Inc. (LDF) is not part
dediutibU for U.S. o f the National Association for the Advancement of Colored People
income tax purposes. (NAACP) although LDF was founded by the NAACP and shares its 

commitment to equal rights. LDF has had for over 30 years a separate 
Board, program, staff, office and budget.

Regional Offices 

Suite 301
1275 K Street, NW 
Washington, DC 20005 
(202) 682-1300 
Fax: (202)682-1312

Suite 206
315 West Ninth Street 
Los Angeles, CA 90015 
(213) 624-2405 
Fax: (213) 624-0075



No. 93-1142

In  The

Supreme Court of tfte tHmteb States?
October Term , 1993

MEMPHIS POLICE DEPARTMENT, et al,
Petitioners,

V.

CLEAMTEE GARNER,
Respondent

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

Elaine R. Jones 
D irector-Counsel 
Theodore M. Shaw 

* Clyde E. Murphy 
Charles Stephen Ralston 
NAACP Legal D efense and  

Educational Fund , Inc.
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Walter L. Bailey, Jr .
200 Jefferson Avenue 
Suite 800
Memphis, TN 38103 
(901) 575-8702

Counsel for Respondent

* Counsel of Record



TABLE OF CONTENTS

STATEMENT OF THE CASE ....................................  1

REASONS FOR DENYING THE WRIT ..................  3

CONCLUSION...............................................................  8



TABLE OF AUTHORITIES

Cases: Pages:

Brandon V. Holt, 489 U.S. 464 (1985) ..............................6

Carter v. City of Chattanooga,
850 F.2d 1119 (6th Cir. 1988) (en banc),
cert denied, 488 U.S. 1010 (1989)................  2, 5, 6

Chevron Oil Co. v. Huson,
404 U.S. 97 (1971).............................................  5, 6

City of Los Angeles v. Heller,
475 U.S. 796 (1986).................................................. 5

Doe V. Sullivan County, Tenn.,
956 F.2d 545 (6th Cir.), cert, denied,
113 S.Ct. 187 (1992) ............................................. 6

Harper v. Virginia Department of Taxation,
509 U.S. —, 125 L.Ed.2d 74,
113 S.Ct. —, (1993)...........................................  4-6

James B. Beam Distilling Co. v. Georgia,
501 U.S. —, 115 L.Ed.2d 481,
111 S.Ct. 2439 (1991)......................................... 4, 5

Monell V. New York City Dept, of Social Services,
436 U.S. 658 (1978)......................................... 1-3, 6

Owen V. City of Independence,
445 U.S. 622 (1980)___ ' .......................................6

Rodriguez v. City of Passaic, 730 F.Supp. 1312 
(D.N.J. 1990), affd,  914 F.2d 
244 (3rd Cir. 1990) .................................................. 6



Pages:

Tennessee v. Gamer, 471 U.S. 1 (1985)................ passim

Texas v. Mead, 465 U.S. 1041 (1984) ..................................7

United States v. Johnson,
268 U.S. 227 (1925).................................................. 7

Statutes: Pages:

42 U.S.C. § 1983 ..................................................................6

Other Authorities: Pages:

Memphis Police Department General Order
5-74(3)(b)(3)............................................................. 7

U1



No. 93-1142

In  The

Supreme Court of tije ^mteb States;
October Term, 1993

MEMPfflS POLICE DEPARTMENT, et al,
Petitioners,

V.

CLEAMTEE GARNER,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

After 18 years, and three appearances before the 
Court of Appeals, Petitioners now seek a second review by 
this Court of this wrongful death action. See, Tennessee v. 
Gamer, 471 U.S. 1 (1985). In 1985 this Court affirmed the 
Sixth Circuit’s ruling pertaining to the fleeing felon rule and 
held that the common law fleeing felon rule — which 
authorized police to use deadly force to prevent the escape 
of fleeing felony suspects — violated the Fourth Amendment. 
The case was remanded to the district court for resolution 
of the issues raised by Monell v. New York City Dept, o f 
Social Services, 436 U.S. 658 (1978), and there it languished.



On remand, plaintiff filed a motion for partial 
summary judgment against the city under Monell, (June 23, 
1986). On August 21,1991, defendants filed a supplemental 
response to plaintiffs motion for partial summary judgment 
citing Carter v. City o f Chattanooga, 850 F.2d 1119 (6th Cir. 
1988) (en banc), cert denied, 488 U.S. 1010 (1989). On June 
30, 1992 the district court denied plaintiffs motion for 
summary judgment, and granted summary judgment in favor 
of defendants, holding that under Carter, this Court’s ruling 
in Gamer should not be applied retroactively to the parties. 
The court then dismissed the case. Plaintiff filed a timely 
appeal, challenging the grant of summary judgment in favor 
of the defendants and the denidl of plaintiffs motion for 
summary judgment.

Based on the uncontroverted facts in this case, as set 
forth in the Sbcth Circuit opinion^ and consistent with this 
Court’s holdings in Monell v. New York City Dept o f Social 
Services, 436 U.S. 658 (1978), and Tennessee v. Gamer, 471 
U.S. 1 (1985), the Court of Appeals expressly reversed the 
district court’s grant of summary judgment in favor of the 
defendants and its denial of plaintiffs partial summary 
judgement motion, holding inter alia.

‘ In its attempt to seek a de novo review of this case the 
Petitioner asserts that the officer could not tell whether the deceased 
was armed; was fearful that if young Mr. Gamer escaped there would 
be "little opportunity of identification" for purposes of future arrest; 
and suggests that the officer did not know that Garner was only 
fifteen years old and unarmed at the time of the fatal shooting. (Pet. 
4-5) The Court of Appeals opinion makes plain however that the 
officer ". . .  could see that the fleeing felony [sic] was a youth and was 
apparently unarmed"; that, ". . .  the officer fired at the upper part of 
the body, as he was trained to do by his superiors at the Memphis 
Police Department"; and that the officer shot, ". . . because he 
believed the boy would elude capture in the dark once he was over 
the fence." (Appendix to the Petition, A7)



This circuit has stated that to satisfy the 
Monell requirements a plaintiff must 'identity 
the policy, connect the policy to the city itself 
and show that the particular injury was 
incurred because of the execution of that 
policy.’ Coogan v. City o f Wixom, 820 F.2d 
170, 176 (6th Cir. 1987) (adopting the test 
articulated in Bennett v. City o f Slidell, 728 
F.2d 762, 767 (5th Cir. 1984) (en banc), cert 
denied. 472 U.S. 1016 (1985)). Plaintiff has 
met this standard.

Gamer v. Memphis Police Depart:, (Pet. App., A14-15)^

The Sbcth Circuit specifically remanded this case 
"with directions that the district court enter an order of 
partial summary judgment in favor of the plaintiff on the 
issue of liability". Gamer v. Memphis Police Depart., (Pet. 
App., A21). The Court of Appeals subsequently denied the 
petition for rehearing en banc or by the panel, and the 
defendants filed this petition.

Reasons For Denying The Writ

The principle issues raised by this petition are (1) 
whether the rule of Tennessee v. Gamer, 471 U.S. 1 (1985), 
will be applied to the very case that laid down the rule; (2) 
whether the police officer’s dismissal from the case because 
he was protected by the doctrine of qualified immunity, 
similarly entitles these municipal defendants to exoneration 
for the constitutional injury suffered by Mr. Garner; and (3) 
whether the court below correctly applied the Monell 
standard to the undisputed facts. These issues are all 
well-settled.

Citations in this form refer to the appendix to the petition.



(1) Petitioners argue that Gamer should not be 
applied retroactively in the very case that established the 
rule. This argument is foreclosed by this Court’s recent 
holding in Harper v. Virginia Department o f Taxation, 509 
U.S. 125 L.Ed.2d 74, 113 S.Ct. —, (1993), which is 
controlling. There, this court held that when the Court does 
not reserve the question whether its holding should be 
applied to the parties before it, the opinion is properly 
understood to have followed the'normal rule of retroactive 
application, ". . . that its rule should apply retroactively to 
the litigants then before the Court." Id., at 125 L.Ed.2d 86- 
87, quoting/flmey B. Beam Distilling Co. v. Georgia, 501 U.S. 
—, 115 L.Ed.2d 481, 111 S.Ct. 2439 (opinion of Souter, J.). 
Moreover, this Court also held that "When this Court 
applies a rule of federal law to the parties before it, that rule 
is the controlling interpretation of federal law and must be 
given full retroactive effect in all cases still open on direct 
review and as to all events, regardless of whether such 
events predate or postdate our announcement of the rule." 
Harper, 125 L.Ed.2d at 86.

Just as this Court relied on Beam, in reaching its 
decision in Harper, so too did the Sixth Circuit rely on Beam, 
in its holding below:

The Beam court held unanimously that 
Bacchus' silence on the retroactivity issue 
indicated that the Court intended to follow 
the usual practice of applying its decision to 
the parties before it.

Gamer v. Memphis Police Depart. (Pet. App., A12)

The district court’s opinion and the petition each rely 
upon a retroactivity analysis that was rejected by this Court



'mBeam znd Harper.̂

(2) Petitioners’ reliance on City o f Los Angeles v. 
Heller, 475 U.S. 796 (1986), for the proposition that the 
successful assertion of qualified immunity, by an individual 
actor, absolves a municipality of liability, is similarly 
unavailing. In Heller, this Court held that a finding that the 
officer did not commit a constitutional violation precluded 
a claim against the city that its policy was responsible for the 
officer’s action. Here the constitutional violation has been 
clearly and repeatedly established, notwithstanding the 
officer’s successful assertion of qualified immunity.

In the instant case there is no doubt that a 
constitutional violation occurred. 'A police 
officer may not seize an unarmed, 
nondangerous suspect by shooting him dead.
The Tennessee statute is unconstitutional 
insofar as it authorizes the use of deadly force 
against such fleeing suspects.’ Tennessee v.
Gamer, A ll U.S. at 11. The district court’s 
holding to the contrary was overturned by this 
court, and the Supreme Court affirmed.

’ Both the district court and Petitioners rely on Carter v. City 
of Chattanooga, Tenn., 850 F.2d 1119 (6th Cir. 1988) (en banc), cert, 
denied, 488 U.S. 1010 (1989), for the proposition that this Court’s 
holding in Gamer should not be applied to the litigants in Gamer. 
Carter, in turn, relies on Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 
to support the non-retroactive application of Gamer to a case in 
which the events predate the announcement of the rule of Gamer 
while the decision postdates Gamer. Whatever relevance Carter or 
Chevron may have had to the case at bar is clearly extinguished by 
this Court’s holding in Harper, that, " *. . . to apply a rule of federal 
law retroactively after the case announcing the rule has already done 
so’ must ’prevaifl] over any claim based on a Chevron Oil analysis.”' 
Harper, 125 L.Ed.2d at 87, (quoting opinion of Souter, J., Beam, 115 
L.Ed.2d 481).



Gamer II, 710 F.2d 240; Tennessee v. Garnery,
[sic], 471 U.S. 1.

Gamer v. Memphis Police Depart, (Pet. App., A18)

A municipality is not entitled to the shield of 
qualified immunity from liability under 42 U.S.C. § 1983, nor 
may it "assert the good faith of its officials or agents as a 
defense to liability under § 1983." Owen v. City o f 
Independence, 445 U.S. 622, 638 (1980); see also, Brandon v. 
Holt, 489 U.S. 464 (1985).“

»

(3) The Sixth Circuit’s clear statement of the 
proper standard established by this Court’s decision in 
Monell, is not challenged by the Petitioners. (Petition at 9)

This circuit has stated that to satisfy the 
Monell requirements a plaintiff must 'identity 
the policy, connect the policy to the city itself 
and show that the particular injury was 
incurred because of the execution of that 
policy.’ Coogan v. City o f Wixom, 820 F.2d 
170, 176 (6th Cir. 1987) (adopting the test 
articulated in Bennett v. City o f Slidell, 728 
F.2d 762, 767 (5th Cir. 1984) (en banc), cert, 
denied. A ll U.S. 1016 (1985)). Plaintiff has 
met this standard.

Gamer v. Memphis Police Depart., (Pet. App., A14-15). *

* See, Doe v. Sullivan County, Tenn., 956 F.2d 545, 554 (6th 
Cir.), cert, denied, 113 S.Ct. 187 (1992). The petitioner’s reliance on 
the district court’s opinion in Rodriguez v. City of Passaic, 730 F.Supp. 
1312 (D.N.J. 1990), aff’d., 914 F.2d 244 (3rd Cir. 1990), ignores the 
fact that Rodriguez specifically relies on the reasoning of Chevron Oil 
Co. V. Huson, 404 U.S. 97 (1971) and Carter v. City of Chattanooga, 
Tenn., 850 F.2d 1119 (6th Cir. 1988) (en banc), cert, denied, 488 U.S. 
1010 (1989), which were rejected by this Court in Harper.



Rather, the Petitioners seek alternative factfinding on the 
question whether Memphis Police Department General 
Order 5-74(3)(b)(3)* constitutes a "policy or custom" of the 
Memphis Police Department, "authorizing use of deadly 
force when necessary to apprehend a fleeing burglary 
suspect." (Pet A.15). Curiously, while Petitioners make this 
argument at page 10 of their petition, they concede at page 
12, that Officer Hymon was "following established police 
department policy." The facts surrounding the adoption of 
the Memphis deadly force policy are undisputed. Based on 
this record the Court of Appeals has twice determined the 
existence and effect of the Memphis deadly force policy in 
accordance with Monell, and there is no contrary factfinding 
by the district court. Moreover, this effort by the Petitioners 
fails to recognize that this Court simply does not sit to 
resolve purported disputes regarding the facts. United States 
V. Johnson, 268 U.S. 220, 227 (1925); Texas v. Mead, 465 U.S. 
1041 (1984) (Stevens, J.).

 ̂ (3) Other Felonies Where Deadly Force is Authorized
After all reasonable means of preventing or apprehending a 
suspect have been exhausted, DEADLY FORCE is 
authorized in the following crimes:
(a) Kidnapping
(b) Murder in the 1st or 2nd degree
(c) Manslaughter
(d) Arson (Including the use of firebombs)
(e) Rape
(f) Assault and battery with intent to carnally know a 

child under 12 years of age
(g) Assault and battery with intent to commit rape
(h) Burglary in the 1st, 2nd, or 3rd degree
(i) Assault to commit murder in the 1st or 2nd degree

Gamer v. Memphis Police Depart., (Pet. App., A.15) (Emphasis in 
original)



CONCLUSION

For all the forgoing reasons, the petition for a writ of 
certiorari should be denied.

Respectfully submitted

Elaine R. Jones 
D irector-Counsel 
Theodore M. Shaw 

* Clyde E. Murphy 
Charles Stephen Ralston 
n Xa CP Legal Defense and  

Educational Fund , Inc .
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Walter L. Bailey, Jr .
200 Jefferson Avenue 
Suite 800
Memphis, TN 38103 
(901) 575-8702

Counsel for Respondent

•Counsel of Record



No. 93-1142 
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1993

MEMPfflS POUCE DEPARTMENT, et al,

Petitioners,

V.

CLEAMTEE GARNER.

CERTIFICATE OF SERVICE

I, CLYDE E. MURPHY, hereby certify that I am a member of the bar of the Supreme 
Court of the United States, and that I have caused the BRIEF IN OPPOSITION to be served 

by depositing the same, first class postage prepaid, in the United States mail, this 15th of 
February, 1994, addressed to:

Henry L. Klein 
Senior Staff A ttorney 
2110 One Commerce Square 
Memphis, Tennessee 38103

Monica Moore Hagler 
City Attorney 
Room 314
125 North Main Street 
Memphis, Tennessee 38103-2079

All parties required to be served have been served.

CLYDElErMURPHY 
n^ef for ReCou Respondents^