Federal appellate court speaks out on qualified immunity

It didn't take long for the effect of the Black Lives Matter protests to reach the courts.

Only a little more than a week after the protests started, a panel of the 4th U.S. Circuit Court of Appeals issued an opinion on the use of excessive force by the police against a homeless black man that included the exhortation, "[t]his has to stop." Estate of Jones by Jones v. City of Martinsburg, W. Virginia, 18-2142 (4th Cir. June 9, 2020), as amended (June 10, 2020).

The facts of Estate of Jones, like most of these kinds of cases, are tragic. The 4th Circuit panel summed it up this way: "In 2013, Wayne Jones, a black man experiencing homelessness, was stopped by law enforcement in Martinsburg, West Virginia for walking alongside, rather than on, the sidewalk. By the end of this encounter, Jones would be dead. Armed only with a knife tucked into his sleeve, he was tased four times, hit in the brachial plexus, kicked, and placed in a choke hold. In his final moments, he lay on the ground between a stone wall and a wall of five police officers, who collectively fired 22 bullets." To get a more complete picture, I recommend reading the whole opinion.

Jones' estate sued the city and the officers under 42 U.S.C. Section 1983, alleging a Fourth Amendment claim against the officers and a "Monell" claim against the city. The estate had been "kicked out of district court three times," with the most recent being a ruling granting summary judgment to both groups of defendants. The basis of summary judgment for the individual officers was qualified immunity, a controversial doctrine that is receiving renewed scrutiny because of public events.

Qualified immunity is a judicially created doctrine that can largely be traced back to two U.S. Supreme Court cases: Pierson v. Ray, 386 U.S. 547 (1967), and Harlow v. Fitzgerald, 457 U.S. 800 (1982). Under the current formulation, qualified immunity shields officials from civil liability so long as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).

This test has two components: (1) whether a constitutional violation occurred; and (2) whether the right was clearly established at the time of the violation. This first prong of the test usually not that difficult for plaintiffs in excessive force cases to overcome since excessive force is well understood to be a Fourth Amendment violation. It is the second prong, the "clearly established" requirement, that has created a nearly insurmountable roadblock to success.

The problem is that the Supreme Court has repeatedly upped the ante for what constitutes "clearly established," to the point that now plaintiffs essentially need a reported judicial decision finding the specific actions involved in their cases unlawful. And this analysis cannot be done at an abstract level of generality. In one of the most recent qualified immunity cases, the court said, "[t]oday, it is again necessary to reiterate the longstanding principle that 'clearly established law' should not be defined 'at a high level of generality.'" White v. Pauly, 137 S. Ct. 548, 552 (2017). Instead, "[a]s this Court explained decades ago, the clearly established law must be 'particularized' to the facts of the case." Id.

Indeed, the Supreme Court has driven this message home by reversing a number of federal court opinions in qualified immunity cases, finding that the prohibition on the acts in question was not clearly established at the time.

Given the obviously infinite variety of ways an excessive force scenario can play out, this has become a real problem for plaintiffs. Absent a decision addressing near identical circumstances, the defendant officers will be entitled to qualified immunity.

That brings us back to Estate of Jones. In that case, the 4th Circuit reversed summary judgment for the officers on qualified immunity grounds for two reasons. First, viewing the evidence in the light most favorable to the estate, Jones was secured before he was shot. "A reasonable jury viewing the videos could find that Jones was secured when he was pinned to the ground by five officers." And the right to be free from further use of force once secured was clearly established when this incident took place.

The court did admit that Jones somehow managed to stab an officer with a small knife hidden in his sleeve but said there is a genuine issue of fact whether Jones was secured after that incident.

Second, even if a jury found Jones was not secured, a jury could still reasonably find that he was incapacitated by the time he was shot. Jones had been tased four times, hit in the brachial plexus, kicked and placed in a choke hold, at which point gurgling can be heard in the video. A jury could reasonably infer that Jones was struggling to breathe. He lay on his side and stomach on the concrete with five officers on him. And when the officers got up and backed away, viewing the evidence in the light most favorable to the estate, the officers saw his left arm fall limply to his body.

Yet, despite this, officers ordered Jones to drop the weapon and when he did not respond, they shot him 22 times. On the officers' qualified immunity, the court has this to say: "Unsurprisingly, it was clearly established in 2013 that officers may not use force against an incapacitated suspect."

The 4th Circuit closed with this statement, which is worth setting out fully: "Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court's grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated." 