Court Cites George Floyd Killing While Denying Immunity To Officers Who Shot A Black Man 22 Times As He Lay On The Ground

Legal Issues

from the scaling-back-an-extra-right dept

The killing of George Floyd by Minneapolis police officer Derek Chauvin has triggered a shock wave across the country. The nation has seen the full horror of law enforcement’s indifference to the lives of black people, this time personified by Officer Chauvin’s knee on Floyd’s neck. In full view of several citizens’ cameras, the officer choked Floyd to death, leaving his knee on his neck for nearly three minutes after another officer failed to detect a pulse.

Cities are responding to a fact they can no longer ignore. So are some police departments. And the courts are starting to take notice. The Fourth Circuit Court of Appeals has denied qualified immunity to police officers involved in another killing of a black man, pointing out that this pattern of violence against black citizens has not only been seen by the courts, but will weigh against officers in future civil rights lawsuits. (h/t Matthew Segal)

The opinion [PDF] starts with a concise recounting of the events leading to this lawsuit, delivered with a dryness that does nothing to eliminate the horrific aspects of the officers’ actions.

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.

There are more details about these officers’ actions in the decision, none of which lend themselves to a favorable ruling on their treatment of Wayne Jones.

Staub wrestled Jones to the ground and put him in “a choke hold, just to kind of stop him from resisting.” A loud choking or gurgling sound, which seems to be coming from Jones, is audible on Staub’s audio recorder at this time…

[…]

One officer can be heard loudly calling Jones a “motherf**ker.” At least one officer can be seen kicking Jones as he lay on the ground. Officer Neely tased Jones for a third time, and North then applied “a drive stun without any probes.”

Jones was carrying a knife, but not one he appears to have used against the officers. It was a small knife, rolled up in the sleeve of his shirt. This didn’t stop the cops from insisting Jones was trying to kill or injure them. The recordings seem to indicate Jones was legitimately confused by the officers’ questions and was only attempting to get some straight answers to the officers’ oblique questions. But too many cops seem to view citizens’ questions as a form of resistance and that’s how the officers received Jones’ queries. And they addressed his words with violence.

One homeless black man, carrying a knife in his sleeve — one he seemingly never held in his hands — was extrajudicially killed by a semi-circle of “reasonably scared” officers.

Having learned of the knife, the officers simultaneously drew back approximately five feet. As they moved back, Jones’s left arm dropped lifelessly. Jones was motionless on the ground, laying “with his right side on the ground” and his “right elbow . . . on the ground.” All five officers drew their firearms and formed a semi-circle around the recumbent Jones, who was between the officers and the bookstore wall. The officers ordered Jones to drop the weapon. Jones remained motionless and did not verbally respond. Lehman reported that Jones “did not make any overt acts with the knife towards the officers.” On the night of the incident, Staub similarly reported that as the officers stepped back, Jones “still had the f**king knife in his hand and he wasn’t f**king doing nothing.” Seconds later, the five officers fired a total of 22 rounds at Jones, causing 23 wounds, and killing him where he lay on the sidewalk. Neely fired the first shot, but the next rounds immediately followed. Most of the bullets entered Jones’s back and buttocks. Jones died shortly before midnight.

It appears at least one cop recognized they had overreacted. But there was no effort made to save Jones’ life. Instead, the officers decided to save their careers.

In the immediate aftermath on the scene, one or two of the shooting officers called for emergency medical services, but none of them rendered aid themselves. When searching Jones’s lifeless body, officers found a small fixed blade knife tucked into his right sleeve. After being told that state police were coming to investigate, officers can be heard saying that the incident would be a “cluster” and that they were going to “have to gather some f**king story.”

Although the cops testified one of them was stabbed by Jones, the court says the facts don’t exactly lend themselves to this testimony. And even if Jones had attacked one of them, he was still “secured” by the five officers, which means the force deployed by the officers was excessive.

Given the relatively inaccessible location of the knife, and the physical inability to wield it given his position on the ground, the number of officers on Jones, and Jones’s physical state by this time, it would be particularly reasonable to find that Jones was secured while still armed.

The obvious retort is that a suspect who stabs an officer is not secured. But even given that admission, there remains a genuine question of fact as to whether Jones was secured at any point after Staub felt the knife, and before the officers simultaneously backed away. Staub called out multiple times that Jones had a knife, and another officer yelled to get back, all before the officers retreated. To be sure, the incident moved quickly. But during all of this, Jones was still on the ground, with five officers on him. A jury could reasonably find that Jones was secured before the officers backed away, and that the officers could have disarmed Jones and handcuffed him, rather than simultaneously release him.

Nothing about the killing was justified.

[T]he fact that Jones did not move or respond corroborates that he was incapacitated, and the reasonable officer would have recognized that fact. Indeed, Lehman reported that Jones “did not make any overt acts with the knife towards the officers,” and Staub reported that Jones “wasn’t f**king doing nothing.” And yet five officers wasted no time, giving Jones mere seconds to comply before firing. The officers shouting “drop the knife” seconds before shooting him was, at best, farcical because it was impossible for an incapacitated person to drop a knife tucked into his sleeve.

The court also takes a moment to slam cop-speak — the mangling of English that turns absolutely nothing at all into justifications for searches, seizures, and the taking of citizens’ lives.

According to North, Jones’s hands were “about to go up,” and he “took that as [Jones] may try to assault him.” Unless he was clairvoyant, North could not have known that Jones’s hands were “about” to be raised.

The closing paragraph addresses the current civil unrest and its roots in cop behavior — something that has been deterred not at all by the routine application of qualified immunity to violent cops who escalate non-threatening situations until they feel deadly force can be deployed. The court’s message to the officers in this case extends to all law enforcement officers in its jurisdiction: this level of violence in response to minimal “threats” isn’t acceptable.

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.

Hopefully this points to a shift in the court’s thinking. Maybe the Fourth (and hopefully other circuits) will consider more than simply whether or not precedent has declared this particular violation of rights unconstitutional. This decision says the court is considering both prongs of the qualified immunity argument. If so, this will stop the steady creep of qualified immunity to cover nearly any action taken by cops. The other prong — whether or not the actions were reasonable — has been ignored too often for far too long. This decision places the officers’ actions in the context of today’s civil unrest and recognizes it is part of the problem.

Filed Under: 4th circuit, george floyd, qualified immunity