Florida Bar Association Brief of Amicus Curiae for the Respondent-Appellee

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Nos. 83-1035 
83-1070

I n the

fflourt nf %  lnttp6 &tatw
October Term, 1984

The State of Tennessee, 

and
Appellant^

Memphis P olice Dbpaetment; City of Memphis,
Tennessee,

Petitioners,
V .

Cleamtee Gaenee, as father and next of kin of 
Edward Eugene Garner, a deceased minor,

Respondent-Appellee.

BRIEF OF AMICUS CURIAE 
FOR THE RESPONDENT-APPELLEE

Florida Chapter of the National 
Bar Association 

on behalf of
The National Bar Association





Questions Presented

Whether the racially neutral common law fleeing felon 
statute which confers unlimited discretion on police offi­
cers in determining when a non-dangerous, fleeing felon 
should be shot is racially discriminatory as applied.

II
Whether a state statute allowing law enforcement offi­

cers to shoot fleeing felony, suspects, whom the officers 
reasonably assume to be unarmed and engaged in non-vio­
lent property crimes, violate the suspects’ due process of 
law.



11

TABLE OF CONTENTS

PAGE

Questions Presented ........................................................  i

Table of Authorities ........................................................  iii

Statement of the Case and Facts ...................................  1

A rgument I—
The Racially Neutral Common Law Fleeing Felon 
Statute Which Confers Unlimited Discretion on 
Police Officers in Determining When a Non-Dan- 
gerous, Fleeing Felon Should Be Shot Is Racially 
Discriminatory as Applied .....................................  2

A rgument II—
A State Statute Allowing Law Enforcement Offi­
cers to Shoot Fleeing Felon Suspects, Whom the 
Officers Reasonably Assume to Be Unarmed and 
Engaged in Non-Violent Property Crimes, Violate 
the Suspects’ Due Process of L aw .......................... 13

Conclusion ...................................................................................  18



• • *

111

Table of A uthoeities

Cases: page

Arlington Heights v. Metropolitan Housing Corp., 429 
U.S. 252 (1977) .............................................................  9

Atkins V. Texas, 325 U.S. 398 (1945) ...........................  11
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) .... 16
Castaneda v. Partida, 430 U.S. 482 (1977) ....6,11, lln , 12n
Cupp V. Murphy, 412 U.S. 291 (1973) ...........................  14
Furman v. Georgia, 408 U.S. 236 (1972) ...................... 9n
Garner v. Memphis Police Dept., 710 F.2d 240 (6th 

Cir. 1983) ...................................................................13n, 14
Gregg v. Georgia, 428 U.S. 153 (1976) ......................... 14
Hernandez v. Texas, 347 U.S. 478 (1954) ...................... 11
Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970) ....... 13
Malinsky v. New York, 324 U.S. 401 (1945) ................  16
Bochin v. People of California, 342 U.S. 165 (1951) ....15,17
Simmons v. City of Chicago, 118 111. App.3d 676, 455 

N.E.2d 232 (1983) .....................................................  5
Terry v. Ohio, 392 U.S. 1 (1968) ................................. 13,14
Turner v. Fouche, 396 U.S. 346 (1970) .......................... 12n
U.S. V. Watson, 423 U.S. 408 (1976) .............................  14
Washington v. Davis, 426 U.S. 224 (1976) ..................  lOn
Whitus V. Georgia, 385 U.S. 545 (1967) .......................... 12n
Wiley V. Memphis Police Dept., 548 F.2d 1247 (6th Cir. 

1977) ............................................................... 2, 2n, 3,14,15
Tick Wo V.  Hopkins, 118 U.S. 356 (1886) ...................... 8



PAGE

Constitutional and Statutory Authorities:

U.S. Constitution amend. IV ........................................... 13
U.S. Constitution amend. XIV, §1 .................................  2, 8
FI. Stat. Ann. §776.05 (1983) ......................................... 6n
111. Rev. Stat. Ch. 38, §7-5(a) (1977) ............................ 5
Mo. Rev. Stat. §559.040 (Vernon 1969) ........................ 6n
Mo. Rev. Stat. §563.046 (3) (2) (a) (Vernon 1979) ..... 6n
N.Y. Penal Law §35.30(1) (a) (McKinney Supp. 1975) 5n
Tenn. Code Ann. §40-7-108 .............................................. 8,14
Wis. Stat. §939.45(4) (1973 ) ........................................... 6n

Other Authorities:
A. Bent, The Politics of Law Enforcement (1974) ..... 9n
Pyfe, Blind Justice: Police Shootings In Memphis, 73 

Crim. L. & Criminology 707 (1982) ............................ 12n
Harper, Accountability of Law Enforcement Officers in 

the Use of Deadly Force, 7 Black L.J. 347 (1981).—7n, lln
D. Perry and P. Sornoff, Politics at the Street-Level:

The Select Case of Police Administration and the 
Community (1972) ......................................................  lOn

W. LaPave & A. Scott, Handbook on Criminal Law 
(1972) ............................................................................. 15n

Comment, Deadly Force to Arrest: Triggering Consti­
tutional Review, 11 Harv. Civ. Rights—Civ. Lib. L.
Rev. 360 (1976) ............................................................ 15n

National Center for Health Statistics (NCHS), Divi­
sion of Vital Statistics (U.S. Public Health Service) 
(1978) ............................................................................. 8n

iv



PAGE

Note, Tennessee Code Section 40-7-108 authorizing the 
use of deadly force against an unarmed suspect of 
a nonviolent felony is unconstitutional under the 
Fourth and Fourteenth amendments—Garner v. 
Mempshis Police Department, 710 F.2d 240, 52 U.
Cm. L. Rev. 1155 (1983) ............................................  13n

Note, The Unconstitutional Use of Deadly Force 
Against Non Violent Fleeing Felons: Garner v, 
Memphis Police Department, 18 Georgia L. Rev. 137 
(1983) ............................................................................  13n

Substantive Due Process and the Use of Deadly Force 
Against the Fleeing Felon: Wiley v. Memphis
Police Department Mattis v. Schnarr, 7 Cap. U.L.
Rev. 497 (1978) .............................................................  7n



•w



Nos. 83-1035 
83-1070

In the

(Eourt nf %  IntteJi ^tatw
October Term, 1984

T he State oe Tennessee,

and
Appellant,

Memphis P olice Depaetment; City op Memphis,
Tennessee, —

Petitioners,
V .

Cleamtee Gaenee, as father and next of kin of 
Edward Eugene Garner, a deceased minor.

Respondent-Appellee.

BRIEF OF AMICUS CURIAE 
FOR THE RESPONDENT-APPELLEE

Statement of the Case and Facts

This is a civil action before the United States Supreme 
Court after certiorari to review the decision of the Sixth 
Circut Court of Appeals was granted to the State of Ten­
nessee, Appellant, and the Memphis Police Department 
and the City of Memphis, Tennessee.

A summary of the facts are that on October 3rd, 1974, 
two police officers responded to a report that a black male, 
Edward Garner, was seen entering into a house in subur­
ban Memphis. After questioning the neighbor who called 
in the report, they went to the house in question. The two



officers split up and went around the sides of the house. 
Upon reaching the back of the house, Officer Hyman ob­
served someone run from the house. He shined a flash­
light on the suspect and concluded the latter was unarmed.

Identifying himself as a police officer, the officer com­
manded Garner to halt. When Garner failed to halt, but 
instead attempted to climb a fence, the police fatally shot 
Garner in the head. The decedent was only fifteen years 
old.

ARGUMENT I

The Racially Neutral Common Law Fleeing Felon 
Statute Which Confers Unlimited Discretion on Police 
Officers in Determining When a Non-Dangerous, Fleeing 
Felon Should Be Shot Is Racially Discriminatory as 
Applied.

One of the grounds upon which appellee-respondent main­
tains the Court should affirm the decision of the Sixth Cir­
cuit Court of Appeals is that the Memphis Police Depart­
ment policy authorizing the discretionary shooting of non- 
dangerous fleeing property crime suspects violates the 
Equal Protection Clause of the Fourteenth Amendment 
because it discriminates against people because of their 
race.

Statistics recorded for the City of Memphis substantially 
show that a disproportionate number of blacks and other 
minorities will be victims at the hands of police officers 
under the common “fleeing felon” or “deadly force” statute 
than whites. The record is replete with statistics that 
when appropriately analyzed dictates the abolition of the 
common law deadly force statute in Tennessee. App. 1460- 
1469.1

 ̂ Citations to the record in W iley v. Memphis Police Department, 
548 F.2d 1247 (6th Cir. 1977) are to the Joint Appendix in the 
Sixth Circuit and are designated as App. — .



From October 10th, 1966, to October 3rd, 1974, the Mem­
phis Police Department recorded approximately 225 in­
stances of firearm discharges to attempt to stop fleeing 
felony suspects. Approximately 31 instances of police fire­
arm discharges resulted in death. Id. Non-violent property 
crime suspects accounted for 114 of those shot at by the 
police. Of the 114 shot, 96 were black (21 juveniles, 37 
adults, and 37 of unknown age) and 16 were white (one 
juvenile, ten adults and five unknown). Two were of un­
known race or age. Of the 17 victims suspected of burglary, 
while only four were white, 13 were black (five juveniles 
and eight adults). Id. Amazingly, only 24 victims were 
killed in the commission of violent crimes or because the 
police were acting in self defense or in the defense of others.

A detailed analysis of use of deadly force by the Memphis 
Police Department is found in Appellee’s Brief at 27-29. 
Analysis of the data reveals that although black citizens 
were found to account for 70.6 percent of the arrest popula­
tion for property crime otfenses, they accounted for 88.4 
percent of the shooting victims in property crimes. Id. at 
27. Thus, in a city where the white population was greater 
than that of the black, the death rate for black property 
crime suspects was substantially higher at .63 per 1000 
black property crime arrests, than white citizens at .45 per 
1000 white property crime arrests.

The disparities increase tremendously for property crime 
suspects who are shot at by police. Black citizens have 
the highest rate of 4.33 per 1000 black property crime ar­
rests compared with a white rate of 1.81 per 1000.

Finally, the statistics reveal that blacks are four times 
more likely to be wounded by police than whites, .586 per 
1000 blacks and .113 per 1000 whites.  ̂ These figures un-

2 Appellee’s Brief at 28. The preceding analysis was provided 
by Dr. Janies Fyfe who reviewed the data and accounted for the 
differential racial representation in the arrest population. Dr. Fyfe 
is a professor at American University, Washington, D.C., and a 
leading authority on the police use of deadly force.



doubtedly show that the use of deadly force by the City of 
Memphis police department had a disproportionate impact 
on black citizens. More devestatingiy, a close look at the 
evidence shows that black juveniles are the victims of po­
lice shootings far more often than white juveniles.

In each separate category of criminal otfenses, police 
officers more readily discharged their firearms at black 
youths, killing more of them than white adults and white 
juveniles combined. Just as in Garner, the majority of 
these black youths are killed in situations involving non­
violent property crimes.

Data collected from major cities throughout the United 
States demonstrate that a significantly higher percentage 
of blacks are victims of police use of deadly force. For 
example, from 1950-1960, blacks comprised 22 percent of 
the total population in Philadelphia, yet they accounted for 
87.5 percent of the deaths by police officers. R.1083.  ̂ Tak­
ing into account the differential racial representation in the 
arrest population, black suspects were approximately 
twenty-two times more likely to be killed than whites. 
Analysis of these shooting incidents also revealed that 
more than half of the victims were under 24 years old.

Similarly in Chicago, from 1969-1970, although blacks 
constituted only 33 percent of the population, they ac­
counted for 55.4 percent of the arrest population and 70.9 
percent of the fatalities. This is especially significant in 
light of the fact that the fatality rate of whites is approxi­
mately one/sixth that of blacks, and whites only constitute 
35.7 percent of the arrest population. R.1084. In a study 
performed in Chicago during the same period, statistics 
revealed that Spanish-Americans had the highest death 
rate for the entire population at 4.5 per 100,000; black

 ̂ Citations to the record below are to the Joint Appendix in the 
Sixth Circuit and are designated as R. —  . The preceding informa­
tion was obtained from a study on the police use of deadly force 
prepared by the Law Enforcement Assistance Administration, U.S. 
Dept, of Justice in 1979.



deaths accounted for 2.67 per 100,000; and whites, 0.34 
per 100,000. R.1085. This study also indicated that blacks 
accounted for 73.3 percent of the arrest population for 
felony offenses and 74.7 percent of the fatality victims, 
a conclusion consistent with the prior Chicago study.

The fatality rate was greatest for suspects under 25 
years old. This observation is consistent with the evidence 
for Philadelphia. Although 85.5 percent of the cases were 
designated justifiable homicides by the coroner, the re­
searchers accounted for the interdependence of the cor­
oner’s office with the police department, state attorney, and 
internal affairs division, and adjusted this rate downward. 
An objective review of the evidence indicated 36.8 percent 
of the investigated incidents exhibited evidence of police 
misconduct. R.1084. The reasons attributed to this dis­
proportionate percentage of justifiable homicides are the 
“ lack of independent examinations within the system,” id., 
and closed investigative proceedings shielded from the 
public’s view.

All of the Chicago data was collected during a period 
when the State of Illinois had a common law fleeing felon 
statute in effect. In a recent decision, Simmons v. City of 
Chicago, 118 111. App.3d 676, 455 N.E.2d 232, (1983), in­
terpreting 111. Rev. Stat., ch. 38, §7-5(a) (1977) the court 
recognized that the common law authority of police officers 
to use deadly force was curtailed to use only against of­
fenders engaged in a “forcible felony” . States proscribing 
this common law rule have not been challenged on con­
stitutional grounds.

A study conducted in New York^ for the years 1970 to 
1973 show that 73 percent of the individuals killed by po-

0

 ̂New York adopted the Model Penal Code approach to the use 
of deadly force in 1965, but returned to the forcible felony concept 
in 1967. Using this approach, New York specifies the crimes which 
may trigger the use of deadly force. See N.Y. Penal Law §35.30 
( l j ( a )  (McKinney Supp. 1975),



lice were minorities: 52 percent black and 21 percent His­
panic, in comparison to 10 percent white. R.1086.

The report also revealed that there are significant dis­
parities based on the race of the policeman/offender, and 
that this disparity occurs as the result of racial discrim­
ination on the part of indivdual officers. During this per­
iod white officers fatally shot 96 black and 4 Hispanic 
criminal suspects. Id. In contrast, the number of white 
suspects killed by black and Hispanic police officers com­
bined, was only two.® Hispanic officers accounted for one 
percent of the police force, yet killed two percent of the 
black victims, and six percent of all Hispanic victims. 
R.1086. Yet, these figures do not preclude a finding of 
racial discrimination against minorities.®^

In the aggregate sample of 320 shootings from seven 
large cities in the United States,® it was determined that 
30 percent were fatal shootings and 79 percent of the 
shooting victims were black. R.1093.

At the time of this study three other cities that codified 
the common law statute permitting the use of deadly force 
to arrest a felony suspect were Kansas City, Miami and 
Milwaukee.'  ̂ Based on the data provided for Kansas City, 
black citizens were 7.5 times more likely to be victims of

6

® E. 1086. Although black police officers constituted six percent 
of the New York Police Department between 1970 and 1973, they 
were far more likely to shoot blacks and Hispanics (9 and 18 per­
cent, respectively).

See Castaneda v. Partida, 430 U.S. 482, 499 (1977) (As a 
matter of law one should not assume that members of one recog­
nizable and distinct group will not “discriminate against other 
members of their group.” )

® The seven cities included: Birmingham, Alabama; Detroit, 
Michigan; Indianapolis; Indiana; Kansas City, Missouri; Oakland, 
California; Portland, Oregon; and Washington, D.C.

 ̂Mo. Rev. Stat. §559.040 (Vernon 1969) recodified Mo. Rev. 
Stat. §563.046 (3) (2) (a) (Vernon 1979) ; Fla. Stat. Ann. §776.05 
(1983) ; Wis. Stat. §939.45(4) (1973).



police use of deadly force, than their white counterparts. 
Similarly, in Miami the ratio of blacks killed in comparison 
with whites was 8.8 to one. However, Milwaukee exhibited 
the most disproportionate rate of all three cities. Blacks 
were victimized by police use of deadly force at a rate 
29.5 times more than their white counterparts.^ Although 
the authors concluded Kansas City and Miami exhibited 
high rates of justifiable homicides, 4.50 per 1,000,000 and 
7.06 per 1,000,000, respectively, these figures are ques­
tionable.® The discretion permitted police officers in the 
use of deadly force to effect arrests under common law 
statutes are subject to different interpretations statewide 
throughout various law enforcement departments. This 
lack of specific guidelines for the use of deadly weapons 
under this common law statute means that the killing of 
a non-violent property crime suspect may be considered 
justifiable in one part of the state and not another.^® Thus, 
it is inevitable that these disparities in perception are 
bound to exist among officers within the same department.^^

One study reveals that approximately 89 percent of all 
police nationwide who killed civilians were white, 7 percent 
of the police were black and 4 percent were Spanish Amer­
ican. R.1080.

8R. 1097 (table 6).

9R. 1099 (table 9).

Substantive Due Process and the Use of Deadly Force Against 
the Fleeing Felon; Wiley v. Memphis Police Dept. & Mattis v. 
Schnarr, 1 Cap. U. L. Rev. 497, 498 (1978) recognizes that state 
courts vary in determining when deadly force may be used to effect 
an arrest.

R. 1095. Differences in perception are the result of diverse 
personal philosophies, and degree of restrictions or leniency of 
the police department. See also Harper, Accountability of Law 
Enforcement Officers in the Use of Deadly Force, 7 Black L.J. 
347, 355 (1981). Because there is no required performance level, 
individual police officers determine what is reasonable and just in 
a particular instance.



Nationwide data also show that a larger number of 
blacks become civilian fatalities at the bands of police than 
whites. Non-whites constituted between 47 and 50 percent 
of the fatally injured.^  ̂ Although blacks constituted ap­
proximately 10-11 percent of the total American popula­
tion in 1964 and 1968, one study shows blacks constituted 
28 percent of total arrests and 51 percent of total civilian 
deaths.̂ '̂  Thus, the disproportionate number of blacks 
fatally wounded by police use of force justifies an assess­
ment of whether there has been a violation of the equal 
protection clause of the Fourteenth Amendment.

The Court has long recognized that the discriminatory 
application of a state statute on the basis of race is pro­
hibited under the equal protection clause of the Fourteenth 
Amendment. See Yick Wo v. Hopkins, 118 U.S. 356, (1886). 
A state law neutral on its face, yet reserving arbitrary 
discretion in the law enforcement officers to determine 
whether a suspect should live or die, opens the door for 
unending discrimination against any race or class of peo­
ple, thus, nullifying the right to equal protection under 
the law. See id. at 362. The common law fleeing felon 
statutes impose no guidelines or standards on police officers 
discretion in using deadly force to effect an arrest. See 
Tenn. Code Ann. §40-7-108; Accord, Florida Stat. Ann. 
§776.05 (1983):

A law enforcement officer, or any person whom he has 
summoned or directed to assist him, need not retreat 
or desist from efforts to make a lawful arrest because 
of resistance or threatened resistance to the arrest. 
He is justified in the use of force which he reasonably

R. 1076-1077 citing National Center for Health Statistics 
(N C H S), Division of Vital Statistics (U.S. Public Health Service) 
(1978).

R. 1079-1080. The author also notes that in 1964 when blacks 
accounted for less than thirty percent of arrests for major crimes 
— homicides, rape, robbery, aggravated assault, burglary, theft 
and auto theft— “blacks constituted 51 percent of civilian deaths.”



9

believes to be necessary to defend himself or another 
from bodily harm while making the arrest or when 
necessarily committed in retaking felons who have 
escaped or when necessarily committed in arresting 
felons fleeing from justice, (emphasis added)

These statutes and others which codify the common law 
allow law enforcement officers to use diverse methods, in­
cluding deadly force, to effect an arrestd^ Lack of stan­
dards permit a host of factors, including race, to play a 
part in which suspects are shot and which are arrested 
by some less destructive alternative. Statistics bear out 
the fact that left to their own discretion, a significantly dis­
proportionate number of black suspects will be fatally shot 
by police.

Prevailing case law clearly embraces the proposition that 
racial discrimination can be inferred from the historical 
background underlying the decision. Arlington Heights v. 
Metropolitan Housing Corp., 429 U.S. 252, 266-267 (1977). 
Historical discrimination within the Memphis Polce De­
partment is a fact. The number of blacks and minorities 
employed within the department at the time of Garner’s 
death was less than 6 percent.^® This number was signif­
icantly lower than the racial distribution of the entire 
population of Memphis: 61 percent white, 39 percent black.̂ ®

A  look at Furman v. Georgia, 408 U.S. 238, 256-257 (1972) 
(Douglas, J., concurring) reveals “ . . . discretionary statutes are 
unconstitutional in their operation. They are pregnant with dis­
crimination, and discrimination is an ingredient not compatible 
with the idea of equal protection of the laws . . . ”

A. Bent, The Politics of Law Enforcement 95 (1974). The 
racial distribution of policemen in the sample is approximately 
the same found throughout the entire police department (Table 
5-4). The author was an assistant professor of political science at 
Memphis State University and a consultant to the Memphis Police 
Academy of the Memphis Police Department Training Division at 
the time of this publication.

1® Id. at 92.



10

As late as 1968, “ recruitment, selection and promotion in 
the department was essentially political.” Discrimination 
was recognized by the public, police officials and sociolo­
gists. The tension that existed between white officers and 
black citizens had led to the creation of programs to im­
prove police-community relations. However, in Memphis, 
police liaisons with the black community rarely relayed 
these citizens concerns about police brutality and shoddy 
police service. Even local politicians dared not “give in” 
to the numerous requests of the black community because 
it would be detrimental to their political careers. '̂^

Sociologists recognized that most major urban cities are 
torn along racial lines over the administration of the law 
and the enforcement of order. Policemen are seen as 
products of a white environment. They experience fear, 
anger, confusion and frustration when patrolling black 
communities.^^

This consistent pattern of racial discrimination on the 
part of Memphis police officials, politicians, and street-level 
officers clearly shows a violation of the Equal Protection 
Clause.̂ '*

In addition, the highly discretionary policy in effect at 
the time Garner was killed contributes to the pattern of

Id. at 113.

Id. at 113. For example, Claude Armour, vice-mayor and com­
missioner of both fire and police, was aware of problems in the 
black community, but rarely acceded their requests.

Id. at 42 (footnote omitted), citing D. Perry and P. Sornoff, 
“Politics at the Street-Level: The Select Case of Police Adminis^ 
tration and the Community,” (a paper prepared for delivery at 
the annual meeting of the American Political Science Association, 
Washington, D.C., September 5-9, 1972), P. 37. See also R. 1828- 
1829. As late as 1972 blacks perceived the police as their enemies 
in the City of Memphis.

Compare Washington v. Davis, 426 IJ.S. 229 (1976). Unlike 
the Appellees in the case at bar, the officers in Davis were unable 
to show a history of discriminatory actions, or a single adminis­
trative action taken for “invidious” purposes.



11

racial discrimination on the part of police officers. The 
policies are subject to the individual’s perception of the 
circumstances at the time he apprehends a fleeing felon. 
Individual interpretations lead to the application of the 
common law in a non-systematic manner within one single 
police department.^® These interpretations are influenced 
by the values of the department and the society that sup­
ports them. Thus, use of deadly force in apprehending 
fleeing felony suspects will vary considerably among the 
numerous departments despite the similarities codified in 
the state statutes.

The common law policy does not preclude invidious dis­
crimination of any racial classification. Thus, because the 
statute is not applied in the same manner, some officers 
are apt to discriminate on the basis of race, in violation 
of the equal protection clause of the Fourteenth Amend­
ment.̂ ^

As in jury selection cases, where disproportionate im­
pact on a specific racial class is coupled with a system of 
selection that is discretionary or easily subject to abuse, 
discriminatory intent may be inferred. See Castaneda v. 
Partida, 430 U.S. 482, (1977); Hernandez v. Texas, 347 
U.S. 478 (1945), Atkins v. Texas, 325 U.S. 398 (1945).

A similar analysis can be employed to show a violation 
of equal protection has occurred in the context of fleeing

Harper, Accountability of Law Enforcement Officers In The 
Use of Deadly Force, 7 Black L.J. 347 (1981) advocates instituting 
a “defense of life” policy which would eliminate arbitrary actions 
and result in greater accountability on the part of the police in 
their use of deadly force.

21 See infra p. 2-6, text shows that the majority of officers in­
volved in police homicides are wffiite. Despite suggestions in R. 
1086 that black officers kill black suspect’s this does not undermine 
the denial of equal protection argument. See Casteneda v. Partida, 
supra, 430 U.S. 482. It is conceivable that a black officer wishing 
to be promoted may shoot black suspects to curry favor with high 
level officers or be considered “one of the boys” . Thus, it is of 
very little relevance whether the assailant is a member of a ma­
jority or minority group.



12

felon cases. In Memphis blacks accounted for 70.6 per­
cent of those arrested for property crimes between 1969 
and 1976, and 88.4 percent of these suspects were shot 
by the Memphis police. Appellee’s Brief, supra, at 27. 
Of those suspects fatally wounded 50 percent were un­
armed and nonassaultive. Id. at 28. “ Memphis police 
killed 2.6 unarmed, non-assaultive blacks for each armed, 
assaultive white” Id. (citation omitted). These differences 
are as great as those deemed significant in the jury selec­
tion c a s e s . T h e  discretionary aspect of the common law 
statutes result in an unreasonable and totally dispropor­
tionate number of blacks and minorities being killed by 
police officers.̂ ® These results clearly question whether 
police officers treat all similarly situated non-violent fleeing 
felons in the same manner. Murdering a significantly dis- 
proportional number of blacks bears no rational relation­
ship to a state objective to preserve the peace within a 
community and apprehend all felony suspects.

In the instant case, appellee provided the United States 
District Court for the Sixth Circuit with enough evidence 
to prove the City of Memphis policy on deadly force was 
motivated by racial animosity. This evidence was errone­
ously deemed insufficient to set forth a prima facie case 
to prove the existence of racial discrimination in police

In Casteneda v. Partida, supra, of the 79.1 percent Mexican 
Americans in the general population only 39 percent were sum­
moned for grand jury duty over an 11 year period; Turner v. 
Fouche, 396 U.S. 346 (1970) (60 percent Negroes in the total 
population, only 37 percent on the grand jury lists). Whitus v. 
Georgia, 385 U.S. 545 (1967) (21.7 percent Negroes in the gen­
eral population, only 9.1 percent on grand jury venire).

23 In Pyfe, Blind Justice : Police Shootings In Memphis, 73, 
Grim. L. & Criminology 707 (1982), one alternative explanation 
for the great volume disparity in the number of black shooting 
victims compared with whites is that police practice a policy of 
using “one trigger finger for whites and another for blacks” . 
Id. at 708. Racism, as encouraged by officers and administrators, 
results in “shooting blacks in situations which they would ordi­
narily refrain from shooting whites” Id.



13

homicides. However, the equal protection claim in Garner, 
buttressed by City and Nationwide data serve to show that 
the Tennessee policy was racially motivated.

ARGUMENT II

A State Statute Allowing Law Enforcement Officers to 
Shoot Fleeing Felon Suspects, Whom the Officers Rea­
sonably Assume to Be Unarmed and Engaged in Non- 
Violent Property Crimes, Violate the Suspects’ Due 
Process of Law.

Appellee correctly asserted that the Due Process Clause 
of the Fourth Amendment prohibits police officers from 
using deadly force to arrest an unarmed person suspected 
of committing a non-violent property crime.̂  ̂ Relying on 
Terry v. Ohio, 392 U.S. 1 (1968) and Jenkins v. Averett, 
424 F.2d 1228 (4th Cir. 1970), the Sixth Circuit Court of 
Appeals found that the method of applying deadly force to 
secure the arrest and seizure of a nonviolent fleeing felon 
by police constituted an unreasonable seizure of young 
Garner.

Unlike in the case at bar, the defendant in Terry v. Ohio 
had a concealed weapon and sought to have the same sup­
pressed. Terry argued that since he was not engaged in

It has been suggested that the 4th Amendment due process 
test is easier to apply than the 14th Amendment test because it 
eliminates inquiries into compelling state interests, and produces 
the same results. Under this test the suspect’s fundamental right 
to life is of paramount importance, and an officer may only use 
deadly force to protect the safety of the public or in self-defense. 
See Note, Tennessee Code Section 40-7-108 authorizing the use of 
deadly force hy police officers against an unarmed suspect of a 
nonviolent felony is unconstitutional under the Fourth and Four­
teenth amendments— Garner v. Memphis Police Department, 710 
F.2d 240, 52 Univ. Cin. L. Rev. 1155, 1168 (1983) ; See also Note, 
The Unconstitutional Use of Deadly Force Against Nonviolent 
Fleeing Felons: Garner v. Memphis Police Department, 18 Georgia 
L. Rev. 137 (1983).



14

any criminal activity the police had no reason to arrest 
and search him on the suspicion of being an armed and 
dangerous character. Id. at 9. Yet, although confirming 
Terry’s conviction, this Court still maintained the proposi­
tion that the Constitution forbids unreasonable searches 
and seizures.

When the arresting officer proceeded to apprehend young 
Garner to effect an arrest, it was incumbent upon the of­
ficer to act in a reasonable manner. An arrest is no less 
than a “ seizure” of the person. United States v. Watson, 
123 U.S. 408 (1976); therefore, arrestees are entitled to 
the protection of the Fourth Amendment against unreason­
able seizures of their persons. See Terry v. Ohio, supra; 
Cupp V. Murphy, 412 U.S. 216 (1973). To kill an appar­
ently unarmed person just to insure that he does not walk 
away is a method “unique in its severity and irrevocability.” 
Garner v. Memphis Police Dept., 710 F.2d at 243, quoting 
Gregg v. Georgia, 428 U.S. 153, 187 (1976). In the case 
at bar, the police officer, by his own testimony, confessed 
that he believed young Garner not to be armed, yet he 
shot Garner in the head because Garner was running to 
climb a fence in an attempt to get away. Surely, the police 
officer and his companion officer could have used a reason­
able manner of apprehending young Garner short of seiz­
ing the boy’s life.

The Tennessee Fleeing Felon Statute, Tenn. Code Ann 
<§40-7-108, which the Sixth Circuit ruled unconstitutional, 
clearly gave police officers complete discretion to use deadly 
force against any and all felons to effect an arrest. Ruling 
that Tennessee’s Fleeing Felon Statute is unconstitutional 
was not something done blindly by the Sixth Circuit, nor 
was it the first time the statute came before that Court or 
any other Court.

In Wiley v. Memphis Police Dept., 548 F.2d 1247, 1253 
(6th Cir. 1977), based in part on the fact that guns were 
found nearby, the court found the use of deadly force rea­



15

sonable under the circumstances concluding the act of flee­
ing from the scene of the burglary constituted a continuous 
commission of the burglary. See also the concurring opinion 
of Judge McCree in Wiley, supra, at 1256.

During 15th Century England and 18th Century America, 
law enforcement officers were widely permitted to use 
deadly force in arresting a felony suspect because all fel­
onies were punishable by death therefore, “the use of 
deadly force was seen as merely accelerating the penal 
process” without the inconvenience of a trial.̂ ®

The 18th Century American view of the common law 
rule was weakened in the second half of the 19th Century 
because although the number of crimes classified as fel­
onies increased, the number of capital punishment crimes 
decreased.^  ̂ Thus, as of 1976, in the twenty odd states 
who codified the common law deadly force rule, police of­
ficers, were authorized to use deadly force in many more 
situations than was authorized at common law.̂ ® Conse­
quently, boys like Garner who may have ordinarily re­
ceived a minimum sentence term or probation are facing 
the maximum sentence of death without a judge or jury. 
More than thirty states have already recognized the in­
justices of the common law deadly force rule, and the 
Sixth Circuit should be applauded for doing the same in 
Tennessee.

In Rochin v. People of California, 342 U.S. 165 (1951), 
this Court was faced with whether the sheritfs violated

2® Comment, Deadly Force to Arrest: Triggering Constitutional 
Review, 361, 11 Harv. C.V. R.— Civ.L. L. Rev. at 365. Felonies 
include murder, rape, manslaughter, robbery, sodomy, mahem, 
burglary, arson, prison break, and larceny.

26 Id., at 365.

Id., at 366; See also W .  LaFave & A. Scott, Handbook on 
Criminal Law §56 (1972) (Because a number of felonies are no 
longer punishable by death, the police officers’ right to use deadly 
force should be limited).

26 Id., at 368, 366.



16

the accused’s right to due process when the sheriffs, hav­
ing some information that the accused was selling nar­
cotics, entered an open door to the dwelling, forced open 
the door to the accused’s bedroom and forcibly attempted 
to extract capsules from the accused’s mouth; and when 
that didn’t work, directed a doctor to pump the accused’s 
stomach against the accused’s will and therefrom extracted 
two capsules containing morphine. Id. at 206. In looking at 
the Due Process question, this Court acknowledged that 
the administration of criminal justice is predominantly 
committed to the care of the States. Id. at 168. However, 
this Court further went on to say that

“the requirements of the Due Process Clause” inescap­
ably imposes upon the Court an exercise of judgment 
upon the whole course of the proceedings [resulting 
in a conviction] in order to ascertain whether they 
offend those canons of decency and fairness which ex­
press the notions of justice of English-speaking peoples 
even toward those charged with the most heinous of­
fenses. Id. at 169, citing Malinsky v. New York, 324 
U.S. 401, 416-417 (1945).

In the case at bar, to uphold the constitutionality of the 
common law deadly force statute would be sanctioning 
questionable police policies and tactics that not only re­
sult in honest mistakes, but deliberate violations of the 
right to human life. Chief Justice Burger’s dissent in 
Bivens v. Six Unknown Named Agents of Federal Bureau 
of Narcotics, was well taken when he said

I wonder what would be the judicial response to a 
police order authorizing “ shoot to kill” with respect 
to every fugitive. It is easy to predict our collective 
wrath and outrage. We, in common with all rational 
minds, would say that the police response must relate 
to the gravity and need; that a “ shoot” order might 
conceivably be tolerated to prevent the escape of a



17

convicted killer but surely not for a car thief, a pick­
pocket or a shoplifter. 403 U.S. 388, 411 (1971).

The Court has stated that “ it would be a stultification 
of the responsibility which the Court of constitutional his­
tory has cast upon this Court to hold that in order to 
convict a man the police cannot extract by force what is 
in his mind, but can extract what is in his stomach. Rochin, 
supra, at 173. Yet, would it not be a greater stultification 
for this Court to say an unarmed person cannot be sen­
tenced to death for committing a nonviolent property crime 
by a judge or jury, but that same person can be killed, and 
in effect sentenced to death, for running from the scene of 
a nonviolent property crime by a police officer even though 
the fleeing victim was not placing anyone’s life in danger, 
but, apparently, his own.

Therefore, justice dictates that this Court affirm the Sixth 
Circuit Court of Appeals holding that the Tennessee Stat­
ute as well as other state common law statutes on deadly 
force, violates the Due Process Clause of the Constitution, 
and is, therefore, unconstitutional.



18

CONCLUSION

It is respectfully submitted that the judgment of the 
Sixth Circuit Court of Appeals should be affirmed.

Florida Chapter of the National 
Bar Association 

on behalf of
The National Bar Association 

Prepared by:

Pamela A. Brown, Esq. 
1399 Hendren Drive 
Orlando, Florida 32807 
305 277-3287

Evett L. Simmons, Esq.
380 S.Campbell Street 
Daytona Beach, Florida 32014 
904 255-6573





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