8 F.3d 358 (6th Cir. 1993), 92-6196, Garner v. Memphis Police Dept.

Docket Nº:92-6196.
Citation:8 F.3d 358
Party Name:Cleamtee GARNER, Father and next-of-kin of Edward Eugene Garner, a deceased minor, Plaintiff-Appellant, v. MEMPHIS POLICE DEPARTMENT; City of Memphis, Tennessee, Defendants-Appellees.
Case Date:October 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 358

8 F.3d 358 (6th Cir. 1993)

Cleamtee GARNER, Father and next-of-kin of Edward Eugene

Garner, a deceased minor, Plaintiff-Appellant,

v.

MEMPHIS POLICE DEPARTMENT; City of Memphis, Tennessee,

Defendants-Appellees.

No. 92-6196.

United States Court of Appeals, Sixth Circuit

October 22, 1993

        Argued April 29, 1993.

        Rehearing and Suggestion for Rehearing

        En Banc Denied Dec. 7, 1993.

Page 359

[Copyrighted Material Omitted]

Page 360

        Clyde E. Murphy (briefed), NAACP Legal Defense & Educational Fund, New York City, Walter Lee Bailey, Jr. (briefed), Anne B. Gullick (argued and briefed), Memphis, TN, for plaintiff-appellant.

        Arthur J. Shea, Henry L. Klein (argued and briefed), Apperson, Crump, Duzane & Maxwell, Memphis, TN, for defendants-appellees.

        Before: MERRITT, Chief Judge, and KEITH and SUHRHEINRICH, Circuit Judges.

        MERRITT, Chief Judge.

        This is a wrongful death action brought under 42 U.S.C. § 1983 which has now been to this court three times and once to the Supreme Court. It involves the fatal shooting by a Memphis police officer of a fifteen-year-old fleeing felony suspect under circumstances which this court and the Supreme Court have held violated the Fourth Amendment right to be free from unreasonable seizure. Garner v. Memphis Police Dept., 710 F.2d 240 (6th Cir.1983); Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The case was back before the district court on remand from the Supreme Court for consideration of whether the shooting occurred pursuant to municipal "policy" under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). On remand, the district court held that the Supreme Court's ruling in this case should not be applied retroactively to this case. Accordingly, the court entered summary judgment in favor of the defendants, and denied plaintiff's motion for partial summary judgment on the issue of liability. Plaintiff appeals both rulings. We reverse the district court's grant of summary judgment in favor of the defendants and its denial of plaintiff's partial summary judgment motion. We also remand for entry of an order granting plaintiff's motion for partial summary judgment and for a determination of damages.

       I.

        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, Elton Hymon and Leslie Wright, were called to the scene by a neighbor. The officers intercepted the youth as he ran from the back of the house to a six foot cyclone fence in the back yard. After shining a flashlight on the boy as he crouched by the fence, Officer Hymon 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 youth died of the gunshot wound. On his person was ten dollars worth of money and jewelry he had taken from the house.

        Officer Hymon had been taught that it was proper under Tennessee law to kill a fleeing felon rather than run the risk of allowing him to escape. A Tennessee statute provided that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly

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resist, the officer may use all the necessary means to effect the arrest." Tenn.Code Ann. § 40-7-108. 1 The Memphis Police Department's policy on use of deadly force was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. Tennessee v. Garner, 471 U.S. at 5, 105 S.Ct. at 1698. The Police Department's policy was promulgated by the Department's Director, with the consultation and approval of the Mayor.

        Decedent's father filed this action under 42 U.S.C. § 1983 to recover damages for wrongful death caused by claimed constitutional violations of the Fourth, Eighth and Fourteenth Amendments. The complaint named as defendants Officer Hymon, the Police Department, its Director, the City of Memphis, and the Mayor of Memphis. After a three day bench trial, the district court dismissed the claims against the Director and the Mayor for lack of evidence. It also dismissed the claims against Officer Hymon, holding that his actions were authorized by the Tennessee statute, which the court held was constitutional. In accordance with Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the district court also dismissed the claims against the City and the Police Department, holding that a city is not a "person" subject to suit under § 1983.

        On appeal, this court affirmed the district court's dismissal of the individual defendants, holding that they were protected by the doctrine of qualified immunity because they acted in good faith reliance on Tenn.Code Ann. § 40-7-108. Garner v. Memphis Police Dept., 600 F.2d 52 (6th Cir.1979) (Garner I ). We also remanded for reconsideration of the possible liability of the City and Police Department in light of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which had come down after the district court's decision.

        Because Monell held that a city may be liable in damages under § 1983 for constitutional deprivations that result from a "policy or custom" followed by the city, 436 U.S. at 694, 700-01, 98 S.Ct. at 2037, 2041, we instructed the district court to consider the following: (1) whether a municipality enjoys qualified immunity; (2) whether the use of deadly force was unconstitutional under the circumstances; (3) whether the use of hollow point bullets was unconstitutional; and (4) whether any unconstitutional municipal conduct flowed from a "policy or custom" under Monell. Garner I, 600 F.2d at 54-55.

        On remand, the district court ordered memoranda and oral argument on the issue of whether the trial should be reopened. Upon consideration of the parties' submissions, the court denied further hearings and dismissed the case on the merits, holding that the constitutional claims had already been fully adjudicated. Because there had been no constitutional violation, the holding of Monell that cities could be liable for violations occurring pursuant to a policy or custom of the city did not require a different result. Plaintiff's motion for reconsideration was granted and he was allowed to submit further briefs and make an offer of proof. The court considered the offer of proof and once again ruled against plaintiffs. It held that the wisdom of a statute permitting the use of deadly force against all fleeing felons was a matter of policy for the legislature rather than the judiciary, and that the Tennessee statute was not unconstitutional on its face, nor as applied by the police officer in this case.

        Addressing the question of the City's good faith immunity, the district court held that Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), prevented the City from claiming immunity from liability based on the good faith of its agent. Nevertheless, it found that it was still an open question whether the City might claim immunity if the City itself was relying in good faith on the Tennessee law as interpreted by the federal and state courts. The district court did not believe it necessary to address the constitutionality of the use of hollow point bullets, because it found that there was no causal connection between the use of hollow point bullets and Garner's death.

        We reversed and remanded, holding that Memphis' deadly force policy, as applied to

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this case, violated the Fourth Amendment right to be free from unreasonable seizures. Garner v. Memphis Police Dept., 710 F.2d 240, 246 (6th Cir.1983) (Garner II ). We held that police officers cannot resort to deadly force to apprehend fleeing felons unless they have "probable cause--an objective, reasonable basis in fact to believe that the felon is dangerous or has committed a violent crime." Id. The Supreme Court granted certiorari and affirmed. The Court held that the Tennessee statute "is invalid insofar as it purported to give Hymon the authority to act as he did." Tennessee v. Garner, 471 U.S. at 22, 105 S.Ct. at 1707. Eight years ago the case was remanded to the district court for resolution of the Monell issue, and there it languished.

        On remand, plaintiff filed a motion for partial summary judgment on the issue of the liability of the City and Police Department under Monell. Plaintiff attached two exhibits to the motion. The first was a copy of General Order No. 5-74, the Police Department policy statement authorizing use of deadly force in certain circumstances. The second exhibit was deposition testimony by the Mayor of Memphis, in which the Mayor states that he considered whether all types of burglary should be included on the list of felonies justifying use of deadly force, and concluded that they should. Defendants responded to the motion by asserting various legal arguments; they did not submit any additional evidence.

        Last year, the district court finally denied plaintiff's motion for partial summary judgment and granted summary judgment in favor of the defendants, holding that, under Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir.1988) (en banc), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 786 (1989), the Supreme Court's ruling in Tennessee v. Garner should not be applied retroactively to the parties. The court then dismissed the case. Plaintiff filed...

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