Reply Brief for Plaintiff-Appellant

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

NO. 81-5605

CLEAMTEE GARNER, et al. ,
Plaintiff-Appellant, 

VS.
MEMPHIS POLICE DEPARTMENT, et al., 

Defendant-Appellees.

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

Western Division

REPLY BRIEF FOR PLAINTIFF-APPELLANT

JACK GREENBERG 
JAMES M. NABRIT, III 
STEVEN L. WINTER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

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

Counsel for Plaintiff-Appellant



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ............................. ii
ARGUMENT .......................................... 1

I. THE CITY'S EFFORT TO DISTORT AND INTERJECT 
AMBIGUITY INTO A CLEAR RECORD SHOULD 
BE REJECTED ............................ 1

A. The Facts Surrounding the
Shooting .......................  2

B. Memphis' Training and Deadly Force
Policies .......................  8

II. THE CITY AND THE COURT BELOW MISAPPLIED 
BOTH THIS COURT'S RULING REQUIRING 
REMAND AND CONTROLLING CASE L A W ........  9

III. THE CITY IS NOT ENTITLED TO ANY
FORM OF GOOD FAITH DEFENSE ............  12

CONCLUSION ....................................... 15



Arlington Heights v. Metropolitan Housing Corp.,
429 U.S. 252 (1977) ........................  11,12

Bell V. Wolfish, 441 U.S. 520 (1979) ................  11
Bellotti V. Baird, 443 U.S. 622 (1979) .............. 7
Campbell v. City of Memphis, No. 79-2508

(W.D. Tenn. March 25, 1981) .................  9
Castaneda v. Partida, 430 U.S. 482 (1977) .......  11,12
Coker v. Georgia, 433 U.S. 584 (1977) ...........  12
Cunningham v. Ellington, 323 F. Supp. 1072

(W.D. Tenn. 1971) ..........................  4,10,11,12
Eddings v. Oklahoma, 50 U.S.L.W. 4161 (1982) ....  7
Garner v. Memphis Police Dept., 600 F.2d 52

(6th Cir. 1979)   2,3,10,13,14
Gregg v. Georgia, 428 U.S. -153 (1976)   12
Johnson v. State, 173 Tenn. 134, 114

S.W. 2d 819 (1938) .........................  4
Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963) ...................................... 11
Krause v. Rhodes, 570 F.2d 563 (6th Cir.

1977)   11
Love V. Bass, 145 Tenn. 522, 2385.

W. 94 (1921)   4
Monell V. Department of Social Services, 436

U.S. 658 (1978) ..... '.......................  10
Owen V. City of Independence, 445 U.S. 622

(1980) ...................................... 12,13,14
Qualls V. Parish, 534 F.2d 690 (6th Cir.

1976) ....................................... 13
Reneau v. State, 70 Tenn. 720 (1879)   4
Scarborough v. State, 168 Tenn. 106, 76

S.W. 2d 106 (1934)   4

TABLE OF AUTHORITIES
Cases: Page

- 11 -



Washington v. Davis, 426 U.S. 224 (1976)   11,12
Wiley V. Memphis Police Dept., 548 F.2d 1247

(6th Cir. 1977)   9,11
Other Authorities
Twentieth Century Fund Task Force on Sentencing
Policy Toward Offenders, Confronting Youth Crime
(1978) ...........................................  7

Case Page

-  I l l  -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

NO. 81-5605

CLEAMTEE GARNER, et al.,
Plaintiff-Appellant, 

v s .

MEMPHIS POLICE DEPARTMENT, et al.,
Defendant-Appellees.

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

Western Division

ARGUMENT
I. THE CITY'S EFFORT TO DISTORT AND INTERJECT AMBIGUITY 

INTO A CLEAR RECORD SHOULD BE REJECTED______________
As in the prior appeal, the city relies heavily on

several distortions of the original trial record. In framing
their defense of the district court's misapplication of
prior Sixth Circuit precedent and this court's remand, appellees
seek to mischaracterize the record in an effort to make the
officer's conduct appear more reasonable. Presumedly, they
wish the court to infer that Memphis' policies and practices
were not deficient. They also distort the record evidence
regarding Memphis' training and deadly force policies.



It is the officer's actual impression, and not the
existence of any asserted metaphysical uncertainty, that
controls. The courts have long determined the legality of
the use of deadly force based on the officer's reasonable

2/belief as to the underlying facts. See Cunningham v.
Ellington, 323 F. Supp. 1072, 1075 (W.D. Tenn. 1971), citing 
Reneau v. State, 70 Tenn. 720 (1879); Love v. Bass, 145 
Tenn. 522, 238 S.W. 94 (1921); Scarborough v. State, 168 
Tenn. 105, 76 S.W. 2d 106 (1934); Johnson v. State, 173 
Tenn. 134, 114 S.W. 2d 819 (1938). Since the officer's reason­
able belief was that the victim was unarmed and posed no 
danger to the officer or others, the legality of the city's 
policy that taught the officer to shoot anyway must be judged 
on that basis.

The city also asserts that the officer moved on Garner, 
who was halted at the fence, and implies that he only fired 
when he determined that he could not reach Garner because of

The city refers to the testimony of Inspector Barksdale 
that an officer should only pursue a fleeing suspect and not 
use his weapon if he knows "beyond a reasonable doubt" that 
the suspect is not armed. This statement has no legal support. 
In any case, the sum of Barksdale's testimony was that the 
officer should not have fired, but should have pursued Garner. 
See text, infra. And, in reference to his "reasonable doubt" 
statement, he explained:

Well, if a person is unarmed, and you know that he 
is unarmed, you are not in fear of your life in an 
attempt to apprehend.... If you know that the 
suspect is armed, you approach him more cautiously 
and use a little discretion as to how you are 
going to apprehend.

App. 364 - Barksdale believed that even when theofficer knows the suspect is armed, he should approach the 
suspect and not necessarily shoot. This is a far cry from 
the city's characterization of his testimony that if there 
is a reasonable doubt as to whether the suspect is armed, 
the officer should shoot.

- 4 -



the cluttered backyard between them. Again, the record
does not support this version of the events. The officer 
testified that he did no more than take "a couple of steps," 
App. 651, which "wasn't, you know, far enough to make a 
difference." App. 256. The obstacles between them, a 
chicken wire fence and a clothesline, presented no real 
problem, as he testified: "I could have easily stepped over
the chicken wire fence." App. 654. Avoiding the clothesline 
was only "a matter of ducking and moving around." App. 673.
In all, it only took him "three or four seconds" to reach

4/the body after he shot. App. 720.
Indeed, even the district court found that:

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

App. Chief Detective Dan Jones of the Shelby County
Sheriff's Department testified that: "I can only say that I
would not have shot the suspect myself.... I think the officer
should have moved over the fence and apprehended him." App.
277 - 78. Inspector Eugene Barksdale of the Memphis

3/

2/ The other factors cited were the officer's heavy footwear, 
his flashlight and gun, his "not exactly light" handcuffs, 
and the fact that he would have had to pursue Garner over 
the chain link fence if he did not get to him in time. App. 
654 - Brief for Appellees at 9-10.

This was the testimony of the officer's partner. The 
partner also testified that when he rounded the corner of 
the house after the shot, the officer who fired "was standing 
still," not advancing on Garner. Id.

- 5 -



Police Department testified that "in all probability he
could have apprehended the subject without having to shoot
him." App. 373. Barksdale was asked:

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

A. I think he should have tried to apprehend him.
App. 375. The only witness to testify that the officer was
justified in using his weapon was Captain Coletta. Coletta
had both trained this officer and sat on the review board
that condoned the shooting. App. 506 & 507 - Even so,
his trial testimony was based on an assumption not supported
by the record: that the officer was "physically barred from

5/the area by a fence." App. 532. ~
Finally, the city seeks to portray the deceased as a

hard core recidivist of some sort. Brief for Appellees at
8-9. Young Garner's prior brushes with the law were quite
minor. The burglary in July, before the October instance
leading to his death, was quite literally the theft of a jar
of pennies. App. ^  ^  & 689. The curfew violation was no
violation at all, as explained by the parole officer:

[A]fter talking to him and finding that there was 
justification for him being there and that they 
had this set up where the owner of this place 
[where young Garner was working] would deliver him 
home, and seemingly he was under supervision, so 
we just talked about it and made sure it wouldn't 
happen anymore.

5 / The hypothetical state of facts upon which he based his 
testimony differed from that actually involved in this case 
in another important respect. He was told that the suspect, 
rather than pausing as was the case, attempted to conceal 
himself when ordered to halt. App. 531.

- 6 -



App. 693 -94. In fact, he was not even on probation at the 
time; the officer only arrested him because he was on the 
street after midnight. App. 688. Finally, according to the 
parole officer, the incident which occurred when Garner was 
12 "wasn't an actual break-in as such, but it was an illegal 
entry" into a house whose yard Garner and his friends were 
playing in. App. 686 & 694. Apparently, nothing was taken.
1 6 .

Fourteen year-old Garner was not a hardened or dangerous 
criminal whose apprehension necessitated tough and violent 
police action. He was an admittedly errant, immature youth 
engaged in illegality. In a case involving the death penalty, 
the Supreme Court has only recently affirmed what should be 
obvious,

that minors, especially in their earlier years, 
generally are less mature and responsible than 
adults. Particularly "during the formative years 
of childhood and adolescence, minors often lack 
the experience, perspective, and judgment of 
adults."

Eddings v. Oklahoma, 50 U.S.L.W. 4161, 4164 (1982), citing 
Bellotti V. Baird, 443 U.S. 622, 635 (1979). The Court also 
quoted the Twentieth Century Fund Task Force on Sentencing 
Policy Toward Offenders, Confronting Youth Crime at 7 
(1978):

[A]dolescents, particularly in the early and middle 
teen years, are more vulnerable, more impulsive 
and less self-disciplined than adults.... [A]dolescents 
may have less capacity to control their conduct 
and to think in long-range terms than adults.

50 U.S.L.W. at 4164 n. 11. Certainly, despite his youth and
immaturity. Garner should not have burglarized the house nor
run from the police officer when accosted. But if he acted
impulsively and irresponsibly, he should not have been

- 7 -



shot for it.
B. Memphis' Training and Deadly Force Policies
The city would have this court believe that Memphis' 

training and deadly force policies in 1974 were on a par 
with the best police departments and the FBI. The evidence 
offered on remand belies that assertion. Nor does the evidence 
referred to by the city establish otherwise.

The only record evidence was testimony that the training
provided by Memphis "coincide[d] with the principles that
are taught at the FBI Academy." App. 380. In fact, it is
common knowledge that the FBI has long had a deadly force
policy that prohibits the use of deadly force except in

7/defense of life. App. 1869-70. Indeed, the Memphis 
training officer. Captain Coletta, testifed that he did not 
obtain his firearms expertise from the FBI Academy. During 
that three month program, he elected what were basically 
management courses. App. 303 - His firearm knowledge

6^/ The city cites to Cleamtee Garner's purported statement 
on hearing of his son's death that he expected something 
like that to happen. Brief for Appellees at 8. They do not 
disclose that he denied he ever made such a remark. App.
105 - Cleamtee Garner's testimony establishes that he
was a caring and concerned father. App. 7^, ^  ^  -
88, 90. The officer who reported the purported statem¥nt 
testified that when he heard of his son's death, Cleamtee 
Garner was crying; "he was visibly upset." App. 829. In 
any case, we fail to see the relevance of the city's point.
2/ The court can take judicial notice of the FBI policy as 
it is a matter of public record. Plaintiff-appellant's 
preferred witness. Dr. James Fyfe —  whom the district court 
called biased because of his agreement with the FBI policy - 
- is currently an instructor at the FBI Academy.

- 8 -



taught, App. 307 - his formal training was received in
the department and in state training programs. App. 308 -

Finally, the city notes that its deadly force policy in
1974 was "somewhat more restrictive" than state law. Brief

8/for Appellees at 11. In fact, it was identical to state
law in all respects relevant to this case. The only felonies 
it excluded from the operation of the common law fleeing 
felon doctrine were white collar crimes such as embezzlement. 
App. 322, 885, & 1275. Moreover, it only expressly prohibited 
use of deadly force in cases involving misdemeanants. App. 
1275 - 26.
II. THE CITY AND THE COURT BELOW MISAPPLIED BOTH THIS

COURT'S RULING REQURING REMAND AND CONTROLLING CASE LAW
As admitted by the city, the district court rendered

its decision primarily because of the opinion in Wiley v.
Memphis Police Dept., 548 F.2d 1247 (6th Cir. 1977). Brief
for Appellees at 16; App. But this court was clear in
stating that:

Although there is 
of the Tennessee 
Wiley cases, all 
actions against i 
and not liability 
of a governmental 
of those cases wa 
a qualified privi 
for constitutiona 
performance of hi 
or administative

discussion of the consitutionality 
statute in the Beech, Qualls and 
three of those cases dealt with 
ndividual officers under §1983, 
based on the "policy or custom" 
entity.... The essential holding 
s that an individual officer has 
lege or immunity from liability 
1 claims based on good faith 
s duties in accordance with statutory 
authority....

8/ The deadly force policy quoted in appellees' brief at 17 
as part of the quote from Campbell v. City of Memphis, No. 
79-2508 (W.D. Tenn. March 25, 1981), is not the same as the 
one in effect on the night of October 3, 1974, When Garner 
was killed. The relevant policy was introduced at the original 
trial and appears at App. 1274 - 76.

- 9 -



Garner, supra, 600 F.2d at 54. This court could only have 
remanded the question of constitutionality under Monell v. 
Dept, of Social Services, 437 U.S. 658 (1978), because it 
considered it open under Wiley and the prior precedents.

Moreover, as pointed out to the district court, even in
reaching the constitutional issue by way of dicta in Wiley,
the Sixth Circuit never adopted a ruling controlling decision
in this case. In Wiley, the court specifically noted that
the officers could reasonably have assumed that the victims
were armed because they had just robbed a sporting goods
store. In fact, a "stash" of guns and ammunition were later
found near where the victims lay. Wiley, supra, 548 F.2d at
1253. In concurring in Wiley, Judge McCree emphasized that:

On several occasions, [the Sixth Curcuit 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.... There is sufficient evidence in 
the record to support the conclusion that the 
fleeing felons in this case did present an apparant 
threat to human life....

Id. at 1256. Since the officer in this case fired on the 
assumption that Garner was unarmed, it is clearly not within 
the ambit of Wiley and the other Sixth Circuit cases.

The city and the district court also evidence blithe 
disregard of controlling principles enunciated by the Supreme 
Court and this circuit on the due process and racial discri­
mination issues. Both the district court, App. 59862 , and 
the city. Brief for Appellees at 19, rely on Cunningham, 
supra. But neither Cunningham nor the district court made 
any effort to analyze this question under the Due Process

- 10 -



Clause. The district court did not heed Judge Lively's 
admonition that:

Where a state seeks to punish without an adjudication 
of guilt, "the pertinent constitutional guarantee 
is the Due Process Clause of the Fourteenth Amendment."

Krause v. Rhodes, 570 F.2d 563, 572 (6th Cir. 1977). Nor
did Cunningham or the court below apply the criteria enunciated
long ago in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-
69 (1963), and recently reaffirmed in Bell v. Wolfish, 441
U.S. 520, 538 (1979), for determining whether a particular
action is regulatory or punishment. To say that "the short
answer to plaintiffs contention is that we simply are not
dealing with punishment," Brief for Appellees at 19, is
simply no substitute for analysis of controlling constitu-

9/tional principles.
Similarly, the district court and the city fail to 

discuss or apply the Supreme Court's rulings in Arlington 
Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977), 
and Castaneda v. Partida, 430 U.S. 482 (1977). The city's 
defense of the district court ruling seems to concede the 
disproportionate impact of the policy, arguing that under 
Washington v. Davis, 426 U.S. 229, 239 (1976), it is not 
"unconstitutional soley because it has a racially dispropor­
tionate impact." Brief for Appellees at 20, quoting Wiley

As noted in the opening brief, the district court's 
eight page opinion never once deals with the punishment 
issue. App. ^  - 62 .̂ Indeed, it first ruled on the merits 
before plaintiff was given an opportunity to file a brief on 
the substantive issues. After granting a motion for 
reconsideration, it ruled without once noting the punishment 
issue which was thoroughly briefed in the papers before it.

- 11 -



and Washington v. Davis, supra. But Arlington Heights makes 
clear that, in the absence of a nonracial explanation, dispa­
rate impact coupled with a history "of official actions 
taken for invidious purpose," at 267, is evidence of
intentional discrimination. Moreover, Castaneda affirms 
that the "presumption of discrimination" arising from the 
statistics shifts the burden to the defendants to dispel the 
inference of racial discrimination; this unrebutted presump­
tion is confirmed by the existence of "heavily subjective"

10/decisional criteria. 430 U.S. at 494-97.
III. THE CITY IS NOT ENTITLED TO ANY FORM OF GOOD FAITH 

DEFENSE___________________________________________
Both the city and the court below concede that, under 

Owen V. City of Independence, 445 U.S. 622 (1980), there is 
no qualified good faith immunity avaliable to municipalities. 
Nevertheless, they argue that the city should be able to 
rely on the prior rulings in Wiley, Beech, and Cunningham, 
supra, and avoid liability.

10/ The district court did one other curious thing with 
precedent. It noted that the fleeing felon doctrine is closely 
related to the death penalty issue: "A particular state's
views of the validity of the death penalty may, of course, 
effect [sic] its view of the issues involved in this case." 
App. ^  n. 5. It pressed this analogy in the following 
unusual way:

Jurisdictions may have strongly differing views on 
imposition of or abolition of the death penalty in 
any particular felony situation. Again, those 
views should be expressed legislatively as a matter 
of policy, not by a trial judge attempting to 
apply his view of the law to a given set of facts.

App. ^  It failed to note that in requiring compliance
with the Constitution, the Supreme Court has specifically 
limited the "particular felony situation" to which the death 
penalty applies: murder. See Gregg v. Georgia, 428 U.S.
153 (1976); Coker v. Georgia, 433 U.S. 584 (1977).

- 12 -



Even ignoring the Court's ruling in Owen for the moment, 
this argument must fail. As detailed in Point II, supra, 
the prior opinions of this court did not uphold the constitu­
tionality of shooting unarmed, nondangerous fleeing felony 
suspects.

But the Supreme Court's decision in Owen cannot be 
ignored. It held "that municipalities have no immunity from 
damages liability flowing from their constitutional violations." 
445 U.S. at 657. There is no distinction between asserting 
the good faith of the municipality's officers or agents and 
asserting that the municipality had a right to rely on 
state law and prior dicta. The essence of the good faith 
defense is that the official "relied, in good faith, upon 
the settled law...." Garner, supra, 600 F.2d at 54, quoting 
Qualls V. Parrish, 534 F.2d 690, 694 (6th Cir. 19756). Who 
acts for a municipality but its officials? If, under Owen, 
the municipality cannot claim the benefit of its officials' 
good faith, it cannot claim the benefit of their reliance.

Moreover, the city's argument would accomplish precisely 
what Owen sought to avoid: If a municpality as well as its
agents could avoid liability based on reliance on past prece­
dents, it would "have the deleterious effect of freezing 
constitutional law in its current state of development." 445
U.S. at 651 n. 33. Who would sue to vindicate constitutional

11/rights if they could not collect damages from anyone? Id.

11/ This case implicates another important policy considera­
tion discussed in Owen. The city's liability turns on the 
training, standards, and deadly force policies it has chosen 
to impart to its police officers. In Owen, the Court was

- 13 -



The City of Memphis has a responsibility not to violate 
the constitutional rights of any of its citizens, including 
young Garner. This responsibility cannot be mitigated by a 
state statute. Good faith reliance on the state law may 
insulate the city's officials from liability, as this court 
held. Garner, supra, 600 F.2d at 54. But the city has no 
such privilege. As the Court noted in Owen;

How "uniquely amiss" it would be ... if the 
government itself —  "the social organ to which 
all in our society look to for the promotion of 
liberty, justice, fair and equal treatment, and 
the setting of worthy norms and goals of social 
conduct" —  were permitted to disavow liability 
for the injury it has begotton.

445 U.S. at 651.

11/ continued
concerned with "[t]he need to institute system-wide measures" 
to prevent unconstitutional actions of municipal agents.
445 U.S. at 652 n. 36.

[T]he threat of liability against the city ought 
to increase the attentiveness with which officials 
at the higher levels of government supervise the 
conduct of their subordinates.

Id.

- 14 -



IV. CONCLUSION
For the foregoing reasons, appellant is entitled 

to relief for the 1974 shooting death of his minor son.

Respectfully submitted.

/  ̂ -• /■
JACK GREENBERG 
JAMES M. NABRIT, III 
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

Counsel for Plaintiff-Appellant



CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing completed 
Reply Brief for Appellant has been served by placing same in 
the United States Mail , postage prepaid, to Henry L.
Klein, Esquire, 2108 First Tennessee Bank Building, Memphis, 
Tennessee 38103, this th day of February 1 982.

STEVEN L. WINTER

Counsel for Plaintiff-Appellant