600 F.2d 52 (6th Cir. 1979), 77-1089, Garner v. Memphis Police Dept., City of Memphis, Tenn.

Docket Nº:77-1089.
Citation:600 F.2d 52
Party Name:Cleamtee GARNER, father and next of kin of Eugene Garner, a deceased minor, Plaintiff-Appellant, v. MEMPHIS POLICE DEPARTMENT, CITY OF MEMPHIS, TENNESSEE and Jay W. Hubbard and E. R. Hymon in their official capacities, Defendants-Appellees.
Case Date:June 18, 1979
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 52

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

Cleamtee GARNER, father and next of kin of Eugene Garner, a

deceased minor, Plaintiff-Appellant,

v.

MEMPHIS POLICE DEPARTMENT, CITY OF MEMPHIS, TENNESSEE and

Jay W. Hubbard and E. R. Hymon in their official

capacities, Defendants-Appellees.

No. 77-1089.

United States Court of Appeals, Sixth Circuit

June 18, 1979

Argued Feb. 14, 1979.

Page 53

Jack Greenberg, Charles Stephen Ralston, Steven L. Winter, New York City, Walter L. Bailey, Jr., D'Army Bailey, Memphis, Tenn., Avon N. Williams, Jr., Nashville, Tenn., for plaintiff-appellant.

Henry L. Klein, Memphis, Tenn., for defendants-appellees.

Before EDWARDS, Chief Judge and LIVELY and MERRITT, Circuit Judges.

MERRITT, Circuit Judge.

On the night of October 3, 1974, a fifteen year old, unarmed boy broke a window and entered an unoccupied residence in suburban Memphis to steal money and property. Two police officers, called to the scene by a neighbor, intercepted the youth as he ran from the back of the house to a six foot cyclone fence in the back yard. Using a 38-calibre pistol loaded with hollow point bullets, one of the officers shot and killed the boy from a range of 30 to 40 feet as he climbed the fence to escape. After shining a flashlight on the boy as he crouched by the fence, the officer identified himself as a policeman and yelled "Halt." He could see that the fleeing felon was a youth and was apparently unarmed. As the boy jumped to get over the fence, the officer fired at the upper part of the body, as he was trained to do by his superiors at the Memphis Police Department. He shot because he believed the boy would elude capture in the dark once he was over the fence. The officer was taught that it was proper to kill a fleeing felon rather than run the risk of allowing him to escape.

The District Court dismissed the suit of decedent's father brought against the City under 42 U.S.C. § 1983 (1976) to recover damages for wrongful death caused by claimed constitutional violations of the fourth, eighth and fourteenth amendments. In accordance with then existing law, the District Court held that a city is not a

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"person" subject to suit under § 1983; but Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), in which the Supreme Court so ruled, was overruled on this point last term by the case of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Following a bench trial, the District Court also dismissed the case against the officer and his superiors holding, in accordance with our decisions in Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972)...

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