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Fleeing felon rule, Tennessee v. Garner, Fourth Amendment, Fourteenth Amendment, Eighth Amendment, Ninth Amendment, Monell v. Department of Social Services


Criminal Law


On October 3, 1974, officers Hymon and Wright of the Memphis Police Department responded to a call about a burglary in progress. When they arrived at the address, a woman standing in the door told the officers that she had heard glass breaking and that someone was breaking into the house next door. Officer Hymon went around the near side of the house. When he reached the backyard, he saw someone run from the back of the house. With his flashlight, he found a person crouched next to a fence at the back of the yard, some thirty to forty feet away. Hymon identified himself as a police officer and ordered the person to halt. The young man ignored the command and attempted to jump the fence. Hymon fired, striking him in the head; the young man fell, draped over the fence. The unarmed suspect, fifteen-year-old Edward Eugene Garner, died shortly thereafter on the operating table.

Officer Hymon was acting pursuant to both the law of Tennessee and the policy of the Memphis Police Department. A Memphis police officer is authorized, and instructed, to use deadly force to apprehend a fleeing felon after other reasonable means to apprehend that person have been exhausted. Police are taught to shoot to kill, rather than merely to wound. Thus, there is little doubt that Garner's death was not an accident.

In 1975, Garner's father filed a civil rights action against the Memphis Police Department, the City, the Mayor, the Director of Police, and Officer Hymon. The suit alleged that Hymon violated Eugene Garner's constitutional rights under the fourth, eighth, and fourteenth amendments when he shot and killed Garner. The other defendants were sued on the grounds that their failure to exercise due care in the hiring, training, and supervision of Hymon made them equally responsible for Garner's death.

Trial was held in August of 1976. At the close of the plaintiffs case, the district court granted a motion for a directed verdict in favor of the City and the Police Department. The court later found for the remaining defendants on all issues. On appeal, the Sixth Circuit affirmed that part of the district court's decision dismissing the case against each of the individual defendants. The court, however, remanded with respect to the City in light of Monell v. Department of Social Services, an intervening Supreme Court decision holding that municipalities could be subject to liability under the United States Code, title 42, section 1983. The district court was instructed to consider whether the municipality was entitled to qualified immunity because its policies had been set in accordance with state law, and if not, whether the use of deadly force to capture nondangerous fleeing felons was constitutionally permissible.

On remand, the district court found that the Tennessee deadly force statute was neither unconstitutional on its face nor as applied. Because the district court found that Garner had not been deprived of any constitutional right, it did not reach the immunity issue. An appeal again was taken to the Sixth Circuit. The appellate court determined that the Tennessee deadly force statute violated the fourth and fourteenth amendments of the Constitution. The United States Supreme Court granted certiorari in March 1984 and recently heard oral arguments.

Analysis of the deadly force rule in the context of the mandates of the fourth, eighth, and fourteenth amendments clearly indicates that the use of deadly force against a nonviolent fleeing felon is unconstitutional. In the event, however, the Court finds that the fleeing felon rule does not violate the fourth or fourteenth amendments and reverses the Sixth Circuit, opponents of deadly force will be left with two options: to accept the Court's ruling or find a new constitutional theory with which to attack the laws. An argument may be made that killing the fleeing felon who has not committed a crime of violence, and does not pose a threat of violence, violates the ninth amendment.

Publication Citation

John H. Blume, "Deadly Force in Memphis: Tennessee v. Garner", 15 Cumberland Law Review (1984)

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