                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                           On-Brief January 28, 2005

                        KEVIN K. MCCRARY v. CITY OF MEMPHIS

                      A Direct Appeal from the Circuit Court for Shelby County
                      No. CT-004385-02    The Honorable D'Army Bailey, Judge



                       No. W2004-01840-COA-R3-CV - Filed February 25, 2005


        City of Memphis challenges judgment of trial court finding the city liable, under the
Governmental Tort Liability Act, for negligence of a police officer that proximately caused injuries
to a criminal suspect who was being placed under arrest. City contends that the trial court erred in
admitting into evidence the statement of police officer taken during a police department internal
investigation; in finding that the officer’s actions were negligent instead of intentional; and in failing
to apply properly the correct standard of care. Finding no error, we affirm the judgment of the trial
court.

       Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Robert D. Meyers of Memphis for Appellant, City of Memphis

Samuel J. Muldavin of Memphis for Appellee, Kevin K. McCrary

                                                        OPINION

                                           I. PROCEDURAL HISTORY

       Both parties to this appeal have agreed upon the accuracy of the following Statement of the
Case, which appears in the appeal brief filed by the Appellant, the City of Memphis1:

         On August 2, 2002, Kevin K. McCrary (“Plaintiff”) filed suit against the City of
         Memphis (“Defendant”) pursuant to the Tennessee Governmental Tort Liability Act,


         1
                   W e omit one clause of a sentence with which the Appellee takes issue from our recitation of the
Statement of the Case. W e also omit citations to the technical record , hearing transcripts, trial transcripts, trial exhibits,
and de position transcripts.
         Tenn. Code Ann. § 29-20-101 et seq. (“GTLA”), in Shelby County Circuit Court. In
         his Complaint, Plaintiff maintains Memphis Police Department Officers Paul
         Giannini and Anthony Murdock (collectively “Officers”) used excessive force in
         effecting his arrest on August 6, 2001. Plaintiff alleges Defendant is liable both for
         the Officers’ negligence under respondeat superior and for its own negligence in
         failing to train its officers in the proper use of force.

                 Defendant moved for summary judgment on April 30, 2004, arguing that the
         Officers’ alleged actions, if they occurred, were an unforeseeable intentional act for
         which Defendant cannot be held liable under the GTLA. In support of this
         contention, Defendant noted Plaintiff’s deposition testimony that his alleged injuries
         were inflicted “purposely” rather than accidentally. Defendant also maintained that
         it could not be held liable for its training procedures, which reflect discretionary
         functions that are immune from suit.

                 On June 25, 2004, the trial court conducted a hearing on the motion. At the
         hearing, Plaintiff abandoned his “failure to train” claim for lack of proof, but argued
         in defense of his respondeat superior claims. [T]he lower court nonetheless found
         that a determination of fact remained as to whether the Officers’ conduct was
         intentional or negligent. Accordingly, the trial court denied Defendant’s motion on
         the respondeat superior claims.

                  On June 30, 2004, the lower court conducted a bench trial, sitting without a
         jury. During the trial, Plaintiff’s counsel offered the statement given by Officer
         Murdock to the Internal Services Bureau (“ISB”) during the course of an internal
         departmental investigation of the events at issue. In his statement, Officer Murdock
         stated, in relevant part, that “it’s a possibility” he stepped on Plaintiff’s face during
         the course of the arrest. The lower court admitted the statement over defense
         counsel’s opposition, ruling that the statement fits within the hearsay exception for
         statements against interest contained at Tenn. R. Evid. 803(1.2)(D). At the conclusion
         of the trial, the lower court found Office Murdock negligently used excessive force
         in arresting Plaintiff and ordered an award of damages against Defendant in the
         amount of $35,000. The trial court entered its order reflecting these findings on July
         8, 2004. Defendant then timely filed the instant appeal on July 21, 2004.

                                             II. FACTS
        The parties to this appeal have both agreed upon the accuracy of the following statement of
facts, which appears in the appeal brief of the Appellant, the City of Memphis2:



         2
                  W e omit two sentenc es with which the Appellee takes issue from this recitation of the Statement of
Facts. W e also omit citations to the technical record, hearing transcripts, trial transcripts, trial exhibits, and deposition
transcripts.

                                                             -2-
        On the evening of August 6, 2001, Plaintiff spent several hours at a female
friend’s apartment in southeast Memphis. Plaintiff does not remember the name of
the friend or any of the other guests in the apartment that evening. After spending
approximately five hours at the apartment, Plaintiff obtained a ride from a male
“associate” of one of the females who was at his friend’s apartment. Plaintiff only
knew the individual giving him a ride as “D.” “D” agreed to drive Plaintiff back to
another female friend’s residence in north Memphis in a black SUV.

        While “D” was driving Plaintiff to his female friend’s residence, a police
vehicle approached them from behind with its blue lights engaged and pulled the
vehicle over on I-240 near the Walnut Grove overpass. While the officer was pulling
over the black SUV, “D” informed Plaintiff that the vehicle was stolen. Once the
black SUV came to a stop, both “D” and Plaintiff exited the vehicle, ignored the
officer’s instructions to get back inside, and then fled. Plaintiff ran eastbound across
the interstate to Christian Brothers High School, where he hid in a dumpster.

        Officer Giannini, who had pulled over the black SUV for speeding, did not
pursue either suspect at the time, because he was uncertain if there was anyone
remaining in the vehicle. After running the license plate on the SUV, Officer
Giannini learned that it had been stolen in a carjacking. This led Officer Giannini to
fear that the fleeing suspects might be armed. Officer Giannini then sent out a call
over the radio informing other officers that two carjacking suspects were on foot in
the area surrounding I-240 and Walnut Grove. Officer Murdock, a “K-9 Officer,”
responded to the call, searching for the suspects with the aid of his trained dog.

        As Plaintiff hid in the dumpster, he was aware that the police were searching
for him. After several hours had elapsed, Officer Murdock discovered Plaintiff’s
hiding place and called Officer Giannini for help. Once Officer Giannini arrived at
the dumpster, Officer Murdock ordered Plaintiff several times to come out, but
Plaintiff refused to comply. Officer Murdock then reached into the dumpster and
pulled Plaintiff out, forcing him to lie down on his stomach. As Office Giannini
attempted to handcuff Plaintiff’s hands behind his back, Plaintiff began to kick and
flail. Officer Giannini then laid on Plaintiff’s legs to subdue his lower body, while
Office Murdock placed his foot on Plaintiff’s back and shoulders to pin down the
upper body....

        On August 13, 2001, Plaintiff filed an excessive force complaint with the
Memphis Police Department arising from his arrest on August 6. The departmental
investigation concluded with a finding that Officer Murdock violated DR-305, the
departmental policy prohibiting the use of excessive force. The investigation did not
specify whether Officer Murdock acted intentionally or negligently. Plaintiff
thereafter filed the instant suit ....



                                          -3-
                                           III. ISSUE
        Appellant, the City of Memphis, raises the following issues on appeal:

        I.      Whether the trial court erred in admitting Officer Murdock’s statement given
                during the course of the MPD’s internal investigation.

        II.     Whether the trial court erred in finding that Officer Murdock’s actions were
                negligent.

                A.      Whether the trial court erred in failing to give conclusive effect to
                        Plaintiff’s admission that Officer Murdock’s actions were intentional.

                B.      Whether the trial court erred in finding that Defendant is liable for
                        Officer Murdock’s intentional conduct.

        III.    Whether the trial court erred in failing to properly apply the correct standard
                of care.

                                  IV. STANDARD OF REVIEW

        Our standard of review in this non-jury case is de novo upon the record of the proceedings
below and there is no presumption of correctness with respect to the trial court's conclusions of law.
Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.1996) and Tenn. R.App. P. 13(d). The trial
court's factual findings are, however, presumed to be correct and we must affirm such findings
absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d
87 (Tenn.1993).

                                            V. ANALYSIS

I.      Whether the trial court erred in admitting Officer Murdock’s statement given during
        the course of the MPD’s internal investigation.

       The City of Memphis maintains that it was improper for the trial court to admit Officer
Murdock’s written statement, given pursuant to an investigation by the Memphis Police
Department’s Inspectional Services Bureau, that “it’s possible” that he stepped on Mr. McCrary’s
face while Officer Murdock was placing Mr. McCrary under arrest. Although the trial court
misstated the rule number of the rule of evidence upon which it was relying, it is clear from the
context, and it is uncontested by the parties to this appeal, that the trial court admitted the statement
under Tennessee Rule of Evidence 803(1.2)(D). Rule 803(1.2) reads in its entirety as follows:

        Admission by Party-Opponent. A statement offered against a party that is (A) the
        party's own statement in either an individual or a representative capacity, or (B) a
        statement in which the party has manifested an adoption or belief in its truth, or (C)


                                                  -4-
       a statement by a person authorized by the party to make a statement concerning the
       subject, or (D) a statement by an agent or servant concerning a matter within the
       scope of the agency or employment made during the existence of the
       relationship under circumstances qualifying the statement as one against the
       declarant's interest regardless of declarant's availability, or (E) a statement by a
       co-conspirator of a party during the course of and in furtherance of the conspiracy,
       or (F) a statement by a person in privity of estate with the party. An admission is not
       excluded merely because the statement is in the form of an opinion. Statements
       admissible under this exception are not conclusive.

(Emphasis added.) Part D of Rule 803(1.2)(D) sets out three requirements for admissibility: the
statement a party seeks to admit must: (1) concern a matter within the scope of the agency or
employment; (2) be made during the existence of a the agency or employment relationship; and (3)
be made under circumstances qualifying the statement as one against declarant’s interest. It is clear
that requirements (1) and (2) are met: the matter described in Officer Murdock’s statement, the arrest
of Mr. McCrary, was within the scope of Officer Murdock’s agency or employment, and Officer
Murdock was employed by the City of Memphis at the time he made the statement. The City’s
challenge to the admission of this statement focuses upon requirement (3): whether the statement
qualifies as one against Officer Murdock’s interest at the time it was made. The City contends that
since Officer Murdock was immune from suit under the Governmental Tort Liability Act (GTLA),
the statement could not have been against his interest.

        We agree with Mr. McCrary that the City’s reading of the phrase, “statement ... against the
declarant’s interest,” is too narrow. The statement at issue was taken as part of an internal
disciplinary proceeding that could have (and, indeed, did) result in disciplinary action against Officer
Murdock. This disciplinary proceeding had the potential to affect Officer Murdock’s eligibility for
continued employment and promotions. Consequently, we conclude that the statement was against
Officer Murdock’s interest and was properly admitted by the trial court.

       Moreover, it was uncontested at trial that Officer Murdock was deceased. Because he was
deceased and unavailable to testify, we conclude that his statement would also be admissible under
Tennessee Rule of Evidence 804(3), which provides for the admission of statements against interest
when the declarant is unavailable to testify. Rule 804(3) reads, in its entirety:

       Statement Against Interest. A statement which was at the time of its making so far
       contrary to the declarant’s pecuniary or proprietary interest, or so far tended to
       subject the declarant to civil or criminal liability or to render invalid a claim by the
       declarant against another, that a reasonable person in the declarant’s position would
       not have made the statement unless believing it to be true.

For the reasons stated supra, we conclude that Officer Murdock’s statement was so far contrary to
his pecuniary interest that a reasonable person would not have made the statement unless it were
true. Furthermore, we believe that his statement that his foot was on Mr. McCrary’s neck and his


                                                  -5-
acknowledgment that his foot might have slipped onto Mr. McCrary’s face, could have exposed him
to criminal prosecution for assault and battery. For all of these reasons, we conclude that Officer
Murdock’s statement would be admissible under Rule 804(3).
        The City of Memphis cites the case of Dailey v. Bateman, 937 S.W.2d 927, 930 (Tenn. Ct.
App. 1996), in support of its position that Officer Murdock’s statement should not have been
admitted into evidence as an admission against his personal interest. In Dailey, plaintiffs sued the
defendant city under the GTLA for causing an automobile accident by failing to maintain a stop sign
at an intersection. Id. at 928. The plaintiffs claimed the city had notice of this condition, yet failed
to correct it. Id. at 928-9. The plaintiffs and another witness offered testimony that a police officer,
Sgt. Owens, had spoken to them shortly after the accident and told them that the stop sign “had been
laying in the ditch for several days and that they knew that it was.” Id. at 929. The trial court
admitted this testimony as a statement against interest under Tenn. R. Evid. 803(1.2)(D). The Court
of Appeals reversed, holding that Sgt. Owen’s statement did not constitute an admission against the
defendant city “because we are unable to see how the statement was against his personal interest
when it was made.” Id.

        The situation in Dailey bears no relevant resemblance to the facts of the case at bar. In
Dailey, there is no indication that the officer’s statements were made in the course of a disciplinary
proceeding or that the officer was placing his employment status, salary, or opportunities for
promotion in jeopardy by making the statement. By contrast, in the present case Officer Murdock’s
statements were made in the context of a disciplinary proceeding that could have serious
repercussions for his continued employment and income. Clearly Officer Murdock’s admission that
“it’s possible” that his foot slipped onto Mr. McCrary’s face could expose him to disciplinary action
for negligence, and thus the statement was against his personal interest. We conclude that the
statements were properly admitted as statements against the personal interest of Officer Murdock.

II.    Whether the trial court erred in finding that Officer Murdock’s actions were negligent.

       A.      Whether the trial court erred in failing to give conclusive effect to Plaintiff’s
               admission that Officer Murdock’s actions were intentional.

        The City of Memphis contends that the trial court erred in failing to give conclusive effect
to an “admission” by the Plaintiff that Officer Murdock’s actions were intentional. The City points
to deposition testimony given by Plaintiff in the course of this litigation. Plaintiff testified, in
relevant part, as follows:

       Q.      ... Sub-paragraph (a) [of the Complaint] says: Defendant’s employees
               negligently, carelessly, and recklessly used excessive, unnecessary and
               unwarranted force in effecting the arrest of the plaintiff.

                       My question to you is, was this an accident, or did the officers do this
               to you intentionally?



                                                  -6-
        A.      No, this was done purposely.

        Q.      So the officer didn’t – his foot didn’t slip or anything, he purposely put his
                foot on your face and ground it into the pavement?

        A.      Yes.

        Q.      That’s what you are telling me?

        A.      That’s exactly what I am saying.

         The City argues that this testimony should be given “conclusive effect” as an admission that
Officer Murdock acted intentionally. In support of this argument the City cites two cases in which
“plaintiffs have made statements negativing their negligence claims,” Diviney v. Vineyard, No. 01-
A-01-9012-CV00458, 1991 WL 66480 (Tenn. Ct. App. May 1, 1991), and Cherry v. Rollins, No.
88-12-11, 1988 WL 49993, at *6 (Tenn. Ct. App. May 20, 1988). In both cases the plaintiffs
testified unequivocally as to the actions of the defendants, and the testimony was uncontradicted by
other evidence, with the effect that the trial courts recognized that any possibility that the defendants
had acted negligently was eliminated.

          In his appeal brief, Mr. McCrary argues that Diviney and Cherry are inapplicable here: “In
each of the cited cases, the plaintiff was in a position to know with certainty the facts and
circumstances leading up to and resulting in their respective accidents and to testify with authority
regarding such facts and circumstances. Unlike the plaintiffs in the cited cases, plaintiff in the instant
case was not in a position to know with any specificity, particularity, or certainty how Officer
Murdock caused the complained of injuries.” We agree with Mr. McCrary. In Diviney and Cherry,
the plaintiffs testified to actions they observed by the defendants and the conditions in which the
accidents took place. The actions of the defendants which were observed by the plaintiffs removed
any possibility of negligence, and this testimony was uncontradicted by other evidence. In the case
at bar, the situation is quite different. The supposed “admission” to which the City believes the trial
court should have given conclusive effect concerns the mental state of Officer Murdock, not Officer
Murdock’s actions. We conclude that Mr. McCrary was not in a position to know with certainty
whether Officer Murdock’s actions were negligent or intentional. Mr. McCrary’s position during the
arrest procedure, face-down on the pavement, makes it unlikely that Mr. McCrary would be capable
of observing Officer Murdock’s behavior closely or carefully enough to know for sure whether the
officer’s application of his foot to Mr. McCrary’s head was negligent or intentional. Furthermore,
the other evidence adduced at trial serves to contradict Mr. McCrary’s statement that Officer
Murdock’s behavior was intentional. For example, Officer Murdock stated that “it’s possible” that
he stepped on Mr. McCrary’s face while he was placing Mr. McCrary under arrest. The City argues
that this “statement only goes to the issue whether his foot came in contact with Plaintiff’s face. It
in no way informs a determination whether such contact was negligent, intentional, or merely
accidental.” We disagree with the City on this point; the implication of Officer Murdock’s statement
is that, if his foot did in fact come into contact with Mr. McCrary’s face, it did so accidentally in the


                                                   -7-
course of the struggle. Furthermore, Officer Giannini, the officer who assisted Officer Murdock in
the arrest of Mr. McCrary, testified that he never saw Officer Murdock kick or strike Mr. McCrary.

        Because Mr. McCrary was not in a position to know, with certainty, what Officer Murdock’s
mental state was during the events at issue here, and because other evidence (the statement of Officer
Murdock and the testimony of Officer Giannini) contradicts the assertion that the action was
intentional, we conclude that the trial court did not err in failing to give conclusive effect to Mr.
McCrary’s opinion testimony that Officer Murdock’s action was intentional.

       B.      Whether the trial court erred in finding that Defendant is liable for Officer
               Murdock’s intentional conduct.

       Because we conclude that the trial court did not err in finding that Officer Murdock’s conduct
was negligent, we pretermit any discussion of this issue.

III.   Whether the trial court erred in failing to properly apply the correct standard of care.

        The City of Memphis next argues that the trial court erred in failing to apply the proper
standard of care in analyzing Mr. McCrary’s negligence claim. The City points to the language used
by the court at trial: “[N]either side has given me any expert proof as to the propriety or lack of
propriety of Mr. Murdock putting his foot on the suspect’s back and shoulder and neck, possibly
face, but [I will be] using a reasonably necessary standard under the circumstances.” The City states,
“[i]t appears from this language the trial court employed a ‘reasonably necessary’ standard to
determine whether Officer Murdock acted negligently.”

        The City contends that a “reasonably necessary” standard is not the correct standard to use
in evaluating the propriety of a police officer’s use of force. Citing Graham v. Connor, 490 U.S. 386
(1989), the City argues that the “reasonably necessary” standard it contends was used by the trial
court departs from the standard enunciated in Graham in several ways. First, the City argues that
Graham “does not require an officer’s use of force to be necessary, nor must it be the most prudent
of available alternatives.” The City offers the following quote from Graham:

       [A]ll claims that law enforcement officers have used excessive force—deadly or
       not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen
       should be analyzed under the Fourth Amendment and its “reasonableness” standard...
       The “reasonableness” of a particular use of force must be judged from the perspective
       of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight
       ... the “reasonableness” inquiry in an excessive force case is an objective one...

Id. at 395-96. Thus, the City asserts that the court erred in focusing on the necessity of the use of
force, and the City insists instead that the court should have focused solely on whether the use of
force seemed objectively reasonable at the time. The City points in particular to this statement by the
court at trial as evidence of this erroneous standard: “Mr. Giannini had a sufficient element of control


                                                  -8-
[over Plaintiff’s person] ... as to call into question the reasonableness and necessity of [Officer
Murdock’s] foot on the suspect’s back, neck and/or face considering other reasonable alternatives
available to Mr. Murdock to assist such as was necessary in the safe apprehension of the suspect.”
The City points out that the U.S. Supreme Court has stated that the use of force need not be
necessary, to be reasonable, citing Saucier v. Katz, 533 U.S. 194, 204 (2001), for this proposition.

       The City further argues that the trial court failed to consider the correct factors set forth in
Graham v. Connor, such as “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The City argues that the trial court’s
analysis failed to place proper weight on the exigent circumstances facing Officers Murdock and
Giannini.

         A third argument advanced by the City is that the trial court impermissibly shifted the burden
of proof to the Defendant. “Rather than requiring Plaintiff to show that Officer Murdock’s use of
force was objectively unreasonable—or, under the rubric of the lower court’s standard, reasonably
unnecessary—the court instead phrased its decision in terms of Defendant’s inability to affirmatively
prove the reasonableness of Officer Murdock’s conduct.” The City argues that “[t]he court should
... ask of Plaintiff why Officer Murdock’s conduct was unreasonable.”

        We first consider the City’s claim that the court’s use of a “reasonably necessary” standard
was in error. It is true that courts must ask, when evaluating whether the use of force applied by law
enforcement officers was excessive, whether such force was “objectively reasonable.” However, a
review of authorities on this question persuades us that the trial court did not err in analyzing the
question in the case at bar. A leading treatise explains the proper standard as follows:

       The measure of force permissible in making an arrest is that which an ordinary,
       prudent, and intelligent person with the same knowledge, and in the same situation
       as, the arresting officer would have deemed necessary, or such force as the officer in
       the exercise of a reasonable judgment believes it necessary. The officer is not
       required to determine at his or her peril the precise amount of force necessary in each
       instance and to use that much and no more; rather, the officer may be guided by the
       reasonable appearances and the nature of the case in determining the amount of force
       to be used.

6A C.J.S. Arrest § 53 (2004). The standard articulated in this treatise demonstrates that the court
must indeed apply an “objectively reasonable” standard, as the City asserts—but whether a given
amount of force is “objectively reasonable” depends upon whether such force, in the reasonable
judgment of the officer, seems necessary. This standard has been approvingly cited by the 6th Circuit
in several cases. See Miller v. Cate, 86 Fed.Appx. 830, 833 (6th Cir. 2004); Anderson v. Antal, 191
F.3d 451, **6 (6th Cir. 1999); Edwards v. U.S., 38 F.3d 1215, **3 (6th Cir. 1994). Therefore, we
conclude that the trial court did not err in applying a “reasonably necessary” standard in its analysis
of the excessive force claim of Mr. McCrary.


                                                  -9-
         With respect to the next two arguments advanced by the City—that the trial court failed to
consider the exigent circumstances facing the officers when they arrested Mr. McCrary, and that the
trial court impermissibly shifted to the City the burden of proof concerning the reasonableness of the
officers’ conduct—we find it helpful to quote at length from trial court’s remarks as found in the trial
transcript. In these remarks, the trial court explains its finding that Officer Murdock acted negligently
in using excessive force against Mr. McCrary:

        [I]t is the court’s view that Mr. Murdock acted negligently. Now, the standard that
        I have to use in this case is not to be absolutely clear as to what happened out there
        that night, but the only responsibility that Mr. McCrary has is to persuade the court
        by the barest tipping of the scale between the two versions, that is, the plaintiff’s
        version and the defense’s version of what happened. And neither side has given me
        any expert proof as to the propriety or lack of propriety of Mr. Murdock putting his
        foot on the suspect’s back and shoulder and neck, possibly face, but using a
        reasonably necessary standard under the circumstances. You have got Mr. Giannini
        there who helps to pull this man out, actually appears that what happened was that
        Mr. Giannini—Mr. Murdock ran around, came around to the other side and grabbed
        him and pulled him out. Now whether he was going to come out or not—of course,
        Mr. Giannini and Mr. Murdock say that he wasn’t. But apparently he made some
        effort to move. He stood up, according to Mr. Murdock, and froze. So Mr. Murdock
        doesn’t say that he was making any threatening move after standing up in the
        dumpster. Of course Mr. Murdock, as I have already noted, had good reason to be
        apprehensive as to whether this man was armed. So they pull him out of the dumpster
        and threw him on to the ground. That’s what seemed to be undisputed. And Mr.
        Giannini lands on his legs. And while there is no testimony, if he is trying to
        handcuff him, then I’m assuming by this time he must have put his gun back in his
        holster. It is hard to imagine him trying to handcuff the suspect with a gun in one
        hand and handcuffs in the other if the suspect, as both officers testified, was flailing
        about with his legs. But from the testimony of Mr. Giannini—and he was, outside
        the plaintiff, he is our only live witness in this trial that was on the scene. We don’t
        have any of the other officers, although apparently most of them came up after Mr.
        McCrary was handcuffed.

                But I can’t understand why it would have been reasonable if Mr. McCrary—if
        Mr. Giannini is on his legs, he’s landed on his stomach, presumably one or both
        hands are either to the side or behind him if Mr. Giannini is trying to cuff him, why
        it was reasonable for Mr. Murdock to use his foot on the suspect’s back, neck or
        shoulder as opposed to using his hands and body perhaps to subdue the suspect which
        certainly would have given him more control. And there is no suggestion at this point
        from Mr. Giannini, who was here to testify live, that there was any apprehension at
        that point in time, number one, about Mr. McCrary being armed or, even, about the
        risk of Mr. McCrary grabbing one of their pistols. And so it would appear to me that
        putting his foot on a man who is already being laid on by one officer who—in the


                                                  -10-
hand area of the suspect, because he is the one trying to handcuff the suspect. Mr.
Murdock is standing, presumably, and he is attempting to exert his control with his
foot, and that’s all we know as far as his control effort.
        I wondered, because the dog was there—Mr. Murdock said, well, the dog was
there, whether maybe he was using his foot because one hand was occupied holding
the dog, but then when I looked back at Mr. Murdock’s testimony he says that
apparently he held the dog in abeyance by commands. There was no indication that
he didn’t have both hands available to use. Mr. Giannini testified today that he did
not detect Mr. McCrary moving from the waist up. Now, it doesn’t mean that he—of
course Mr. McCrary testifies that he wasn’t moving and Mr. Giannini says that he
didn’t detect him moving from the waist up.

        Now, Mr. Murdock, when he was asked whether he stepped on Mr.
McCrary’s face—I already referenced this—he said it is a possibility while he was
struggling and I’m trying to hold his neck down. Now I don’t know what kind of
struggling he is talking about. If you think of what Mr. Giannini said, I don’t know
whether he is talking about the struggling which Mr. Giannini said, that that is, his
legs were kicking and he laid on his legs—that’s Mr. Giannini.

        Mr. Murdock, the only kind of struggle he is specific about is the power
struggle to get his handcuffs on him. The question asked Mr. Murdock “Was Mr.
McCrary resisting you in any way?”

       “Answer: He was struggling at that time to keep from being handcuffed.”

       “Question: Was he given verbal commands?”

       “Answer: He was given verbal commands, which he ignored.”

       “Who actually handcuffed Mr. McCrary?”

       “Officer Giannini.”

        Well now if Mr. Giannini is the one struggling to handcuff him, and does
handcuff him but doesn’t see any struggling of the upper part of his body, then I have
to reasonably conclude that the definition or description of the struggle given us by
Mr. Giannini is by a preponderance of the evidence the more reasonable
characterization of the struggle. But that being the case, then it would appear that at
least Mr. Giannini had a sufficient element of control in laying on the suspect in
trying to handcuff him and finally handcuffed him as to call into question the
reasonableness and necessity of the foot on the suspect’s back, neck and/or face
considering other reasonable alternatives available to Mr. Murdock to assist such as
was necessary in the safe apprehension of the suspect.


                                         -11-
               Now, in looking at the Exhibit 2, the two photographs of the suspect’s left
       jaw, it looks to me ... at least looking at this photograph, that the nature of these
       abrasions on the side of the face of the plaintiff are more likely to have come from
       the face being rubbed or ground somewhat onto the pavement from external pressure
       versus a bruising that would come if you were thrown to the pavement where his face
       would hit the pavement, because the bruises or abrasions are both on the cheekbone,
       above the cheekbone and below the cheekbone. And, of course, the cheekbone, it
       appears, in looking at this man, has the most exterior or protrusive of the facial—the
       face, so that it would be the first to hit. But to have the abrasions both below and
       above the cheekbone would quite probably, in the court’s mind, be something more
       than just a flush strike of the face against the pavement but would require some
       agitation of the face on the pavement, and the only way I can, again, by the
       preponderance of the evidence, conceive that under the circumstances of this arrest,
       would be from pressure of Mr. Murdock’s feet or foot with some probable movement
       of that foot on the face or head of the suspect.

                I do not think that the conduct of Mr. Murdock, when given the assessment
       of whether it was negligent or willful, as we discussed in legal questions—obviously
       there is a certain willfulness in the movements of a person and activities of a person
       even when that willfulness constitutes negligence in the final conduct. The question
       is whether it was willful use of excessive force. And I don’t have any—between the
       two choices, between whether or not it was making unreasonable or less-than-
       reasonable choices as to how to properly handle the suspect it would appear to the
       court that that would be the case as opposed to willful misuse of force in the
       apprehension of the suspect. He made a poor choice of the choices available to him
       as to how he could assist and apprehend this suspect, and he made a negligent choice.

These remarks persuade us that the trial court properly considered the exigent circumstances facing
the officers as they arrested Mr. McCrary. We note that, in these remarks, the trial court explains
how it reviewed the key evidence brought forth at trial concerning the incident—including Officer
Murdock’s statement, the testimony of Mr. McCrary, and the testimony of Officer Giannini—and
how it determined which account of the struggle is more credible. Further, we note that the trial court
acknowledges in its remarks that Officer Murdock “had good reason to be apprehensive as to
whether this man was armed.” It is clear, then, that the court fully considered the exigent
circumstances of this arrest. Moreover, based on the trial court’s statement that “Mr. McCrary has
... to persuade the court by the barest tipping of the scale between the two versions [that] the
plaintiff’s version and the defense’s version of what happened,” we conclude that the trial court
properly recognized that the burden of proof was on Mr. McCrary. Therefore, we conclude that the
trial court did not err in its analysis of Mr. McCrary’s negligence claim against the City of Memphis.

                                        VI. CONCLUSION




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       For all the foregoing reasons, the trial court’s judgment is affirmed. Costs in this appeal are
assessed against the City of Memphis, and its surety.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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