Tennessee v. Garner resolved important fourth amendment questions. However, Garner’s attorneys raised a significant theoretical and operational issue that was not reached by either the United States Supreme Court or by the United States Court of Appeals for the Sixth Circuit.

Garner argued that the Memphis Police Department’s application of theTennessee law permitting police to use deadly force to apprehend nondangerous, fleeing felony suspects not only violated the due process clause, by allowing punishment without trial, but also resulted in a disproportionate and racially motivated impact on blacks. Quoting Yick Wo v. Hopkins, Garner’s brief to the Supreme Court stated that:

The Memphis policy [of authorizing police to use deadly force to apprehend non-dangerous, fleeing felony suspects] runs afoul of the Constitution in another fundamental way not discussed by the court of appeals. The breadth of discretion that it confers upon individual officers is susceptible to racially motivated abuse; the materials in the offer of proof depict the policy “in actual operation, and the facts establish an administration…with an evil eye and an unequal hand” against blacks.

Rulings by the court of appeals and the Supreme Court on the issue of racially motivated police abuse were not necessary to achieve the results sought by Garner. Still, the issue is noteworthy because it involves the extent to which the delegation to police of broad discretion may result in overt dis-crimination. If broad discretion in exercise of the most critical police power-the authority to take lives-translates into discrimination at the operational level, it follows that discrimination in application of deadly force and other police powers may be reduced or eliminated by carefully delineating an officer’s discretion.

This article discusses the evidence offered in support of Garner’s equal protection arguments. It then points out the need for future assessment of the differential racial effects of the Garner decision and associated changes in the shooting discretion of Memphis police officers.