Garner v. Memphis Police Dept., 81-5605

Citation710 F.2d 240
Decision Date16 June 1983
Docket NumberNo. 81-5605,81-5605
PartiesCleamtee GARNER, Plaintiff-Appellant, v. MEMPHIS POLICE DEPARTMENT, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Steven L. Winter (argued), New York City, Walter L. Bailey, Jr., Memphis, Tenn., for plaintiff-appellant.

Arthur Shea, Asst. County Atty., Henry L. Klein (argued), Memphis, Tenn., for defendants-appellees.

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

MERRITT, Circuit Judge.

The principal question before us concerns the constitutionality of Tennessee's fleeing felon statute, T.C.A. Sec. 40-808 (1975) under the Fourth, Eighth and Fourteenth Amendments. The Tennessee statute, as interpreted by the District Court and by other federal and state courts, authorizes police officers to use deadly force in order to capture unarmed suspects fleeing from nonviolent felonies. The statute reads: "If ... the defendant ... either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." In the present action for wrongful death under 42 U.S.C. Sec. 1983 (1976), a Memphis police officer shot an unarmed boy fleeing from the burglary of an unoccupied house. We hold the Tennessee statute unconstitutional because it authorizes unnecessarily severe and excessive, and therefore unreasonable, methods of seizure of the person under the Fourth and Fourteenth Amendments.


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. 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, using a 38-calibre pistol loaded with hollow point bullets, 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 under Tennessee law to kill a fleeing felon rather than run the risk of allowing him to escape. The youth died of the gunshot wound. On his person was ten dollars worth of money and jewelry he had taken from the house.

The District Court dismissed the suit brought by decedent's father against the City under 42 U.S.C. Sec. 1983 (1976) to recover damages for wrongful death caused by claimed constitutional violations of the Fourth, Eighth and Fourteenth Amendments. In accordance with Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the District Court held that a city is not a "person" subject to suit under Sec. 1983. Before we heard the first appeal, Monroe was overruled on this point by Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). 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), cert. denied, 409 U.S. 1114, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973); Qualls v. Parrish, 534 F.2d 690 (6th Cir.1976); and Wiley v. Memphis Police Department, 548 F.2d 1247 (6th Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977), that the officers acted in good faith reliance on Tennessee law which allows an officer to kill a fleeing felon rather than run the risk of allowing him to escape apprehension.

On appeal, a panel of this Court consisting of Chief Judge Edwards and Judges Lively and Merritt affirmed the District Court's holding that the individual defendants were protected by the doctrine of qualified immunity because they acted in good faith reliance on T.C.A. Sec. 40-808. Garner v. City of Memphis, 600 F.2d 52 (6th Cir.1972). We reversed and remanded the case against the City of Memphis, however, for reconsideration by the District Court in light of Monell v. Department of Social Services, supra. Because Monell held that a city may be liable in damages under Sec. 1983 for constitutional deprivations that result from a "policy or custom" followed by the city, 436 U.S. at 694 and n. 66, 98 S.Ct. at 2037-2038 and n. 66, we instructed the District Court to consider the following questions:

1. Whether a municipality has qualified immunity or privilege based on good faith under Monell?

2. If not, is a municipality's use of deadly force under Tennessee law to capture allegedly nondangerous felons fleeing from nonviolent crimes constitutionally permissible under the Fourth, Sixth, Eighth and Fourteenth Amendments?

3. Is the municipality's use of hollow point bullets constitutionally permissible under these provisions of the Constitution?

4. If the municipal conduct in any of these respects violates the Constitution, did the conduct flow from a "policy or custom" for which the City is liable in damages under Monell?

600 F.2d 52, at 54-55.

On remand, Judge Wellford ordered memoranda and oral argument on the issue of whether the trial should be reopened. By order dated February 29, 1980, he 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 Judge considered the offer of proof and once again ruled against plaintiffs in a written opinion dated July 8, 1981. He 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. Judge Wellford did not believe it necessary to address the constitutionality of the use of hollow point bullets, because he found that there was no causal connection between the use of hollow point bullets and Garner's death.


We consider the Fourth Amendment question first because, unlike the other more general constitutional provisions raised, the Fourth Amendment is specifically directed to methods of arrest and seizure of the person. The question under the Fourth Amendment is one of first impression in this Circuit. The narrow question presented is whether a state law authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape, constitutes an unreasonable seizure of the person.

The Fourth Amendment provides for the "right of the people to be secure in their persons ... against unreasonable ... seizures." The Amendment also provides that where a warrant is necessary it must describe "the person to be seized." When an officer "accosts an individual and restrains his freedom to walk away," the Fourth Amendment comes into play. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). "[A] person is 'seized' ... when, by means of physical force or a show of authority, his freedom of movement is restrained." United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Killing the individual is the most decisive way to make sure that he does not "walk away," a method "unique in its severity and irrevocability." Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976). It is plainly a "seizure" of the "person." The question therefore becomes whether this method of capturing suspects is "reasonable" under the Fourth Amendment.

Tennessee courts have interpreted their statute regarding the capture of fleeing felons to create a jury question on the issue of the "reasonableness" and the "necessity" of using deadly force. But the "reasonableness" and "necessity" of the officer's action must be judged solely on the basis of whether the officer could have arrested the suspect without shooting him. Purporting to follow the rule developed in England at common law allowing the use of deadly force against suspects fleeing from any felony, Tennessee courts have interpreted their statute to mean that once it is determined that the officer probably could not have captured the person without firing, the jury should find the police action reasonable under the statute. Scarbrough v. State, 168 Tenn. 106, 110, 76 S.W.2d 106 (1934) (officer may kill automobile thief "as a last resort" to prevent escape and the question of "necessity of killing" is one for jury); see also to the same effect Love v. Bass, 145 Tenn. 522, 238 S.W. 94 (1921) and State v. Boles, 598 S.W.2d 821 (Tenn.App.1980) and the cases cited in those opinions. It makes no difference that the felony was nonviolent or that the felon was unarmed and not dangerous to the physical safety of others.

It is true that the common law permitted the killing of a felon who resists arrest without regard to the nature of the felony. But it did so at a time when all of the small number of felonies then in existence were capital crimes. Since any felon at large...

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