Fifth Circuit Denies Immunity To Cops Who Beat And Tased An Unresisting Man To Death

from the is-the-Fifth-finally-reversing-its-pro-cop-course? dept

The Fifth Circuit is a bit infamous for allowing law enforcement to do what it wants without worrying about too much pushback from judges. This is due in part to the Supreme Court's increasing insistence lower courts take a hands off approach to qualified immunity by encouraging them to avoid determining whether any rights violation has occurred. Instead, the Supreme Court has pushed lower courts to only determine whether or not a similar rights violation has occurred in the past, and whether past precedent justifies the stripping of immunity.

The end result has been less precedent established, which results in fewer determinations officers should have known their actions violated people's rights. Fortunately, the Supreme Court seems to be slowly recognizing the damage it's done over the past forty years. And the Fifth Circuit Appeals Court is now the home of Judge Don Willett, who issued a scathing attack on qualified immunity in 2018 in an opinion dealing with an allegedly unconstitutional search of a doctor's office.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

Don Willett wrote this recent opinion [PDF] upholding the stripping of qualified immunity from officers who beat and tased an unresisting man as he suffered a mental health crisis. Here's how it opens, which gives you a good idea of where it's headed.

“What is the virtue of a proportional response?” an exasperated President Bartlet demands in a memorable scene from the first season of The West Wing. Anything more, the Chairman of the Joint Chiefs of Staff coolly advises, would be a “staggering overreaction . . . you’ll have doled out a $5,000 punishment for a fifty-buck crime.”

For those in positions of public trust—from Commanders in Chief (who must “take Care that the Laws be faithfully executed” ) to City of Gretna Police Officers (who “vow to protect life and property while safeguarding constitutional guarantees”)—proportional responses are good policy. We expect those charged with executing and enforcing our laws to take measured actions that ascend in severity only as circumstances require. A disproportionate response is unreasonable. And if it describes physical force inflicted by a police officer, it is unconstitutional.

After a middle school official reported a man "acting strange" near the school grounds, the "strange" man -- Kendole Joseph -- ran into a nearby convenience store and hid behind the counter. The two school resource officers were soon joined by twelve(!) Gretna police officers. Some of these 12 officers severely beat Joseph, ultimately ending his life.

The first officers went over the counter to "secure" Joseph. Somehow this involved multiple tasings and a nearly uninterrupted beating.

The convenience-store manager, who was behind the counter at the time, testified that Joseph looked scared and immediately “went face down.” Once on the ground, Joseph covered his face with his hands and assumed the fetal position. Seconds later, Officers Martin and Leduff followed Joseph over the counter. Officer Martin, weighing 300 pounds, immediately placed his full weight onto Joseph, who was still lying on the floor with his legs bent toward his chest. Officer Leduff began holding Joseph’s upper body down.

Apparently, this wasn't enough restraint. More force was deployed on the Joseph.

At that point, approximately thirty seconds after Officer Martin jumped over the counter, he ordered Joseph to put his hands behind his back and deployed his taser for eleven seconds.

As more officers poured into the store, the assault continued.

Officer Dugas handed a baton to Officer Martin, who jabbed it downward, striking Joseph at least twice with the pointed end.

Apparently nothing else was happening in Gretna that afternoon.

A few seconds later, Officers Varisco, Costa, and Rolland entered the store, followed shortly by Officer Faison. Officers Varisco and Faison observed from the front side of the counter, and Officers Costa and Rolland walked behind the counter. Officer Varisco reached over to offer his taser to the officers behind the counter. Officer Costa briefly observed from behind the counter, then entered the scrum, holding Joseph’s lower body down.

Yet another officer entered and the Taser was deployed again.

Officer Verrett then entered the store. Two seconds later, Officer Martin deployed his taser again, for three seconds.

The officers attempted to pull Joseph out from behind the counter. The methods used were… questionable.

Officers Martin, Thompson, Dugas, and Costa began attempting to drag Joseph from the narrower area behind the counter to the wider area, on the path to the door.

Officer Costa then kicked Joseph twelve to thirteen times while holding onto the counter. During this time, Officer Verrett entered the scrum. Officer Martin then punched Joseph in the head three times. Officers Martin, Thompson, Dugas, Costa, Faison, and Verrett resumed their efforts to drag Joseph toward the wider area, while Officer Leduff observed. Once in the wider area, Officer Martin punched Joseph in the face three times. Officer Bartlett then jumped over the counter and began holding Joseph down. Seconds later, Officer Costa punched Joseph in the head six times.

A little over three minutes later, the beaten man was in cuffs and lying prone in the backseat of a cop car, face down. Medical professionals noted Joseph was unresponsive and performed CPR. Two days later, Joseph died from injuries suffered at the hands of these officers. The injuries were extensive.

In total, Joseph endured twenty-six blunt-force injuries to his face, chest, back, extremities, scrotum, and testes.

And it doesn't appear any of them were justified.

Throughout the eight-minute encounter, Joseph was on the ground, experiencing acute psychosis, and continuously yelling. Officer Bartlett recalled Joseph “yelling random things” and pleading for someone to “call the police.” Officer Faison and the store manager recalled him pleading for someone to “call the real police.” Officer Leduff recalled Joseph calling for his mother and “saying all types of things,” including that he was “about to be killed.” The store manager recalled Joseph calling out for his mother and repeatedly yelling, “My name is Kendole Joseph,” and “I do not have a weapon.”

This isn't just the plaintiff's testimony. Joseph's health crisis and the officers' reactions were captured by the store's CCTV system.

[A]lthough Joseph may have disobeyed officer commands by entering the store, Joseph did not attempt to leave the store. Rather, he immediately dropped onto the floor in the fetal position. Joseph did not attempt to strike any officer; he flailed his legs and wiggled his body but made no contact with any officer. This version of the facts, the district court ascertained, was consistent with the video evidence. What is more, the district court observed, the video suggested that Joseph was not struggling against the officers at all “[f]or substantial portions” of the encounter.

Once a suspect is "subdued," force deployment needs to cease. This doesn't just mean once the suspect is cuffed and in the back of a squad car. As the Fifth Circuit points out, Joseph was "subdued" during pretty much the entirety of this encounter.

If the suspect lacks any means of evading custody—for example, by being pinned to the ground by multiple police officers—force is not justified. So even if Joseph failed to comply and struggled against the officers at certain points throughout the encounter, that resistance did not justify force indefinitely.

This is where you can tell it's Willett writing the opinion. There's a path the Fifth Circuit could have taken -- one wholly supported by Supreme Court rulings. But Willett decides he's not going to take the path of least resistance and simply search for on point precedent.

While we have discretion to leapfrog the merits and go straight to whether the alleged violation offended clearly established law, we think it better to address both steps in order to provide clarity and guidance for officers and courts.

The Fifth Circuit says the case must go to trial. There are potentially provable rights violations in the plaintiff's allegations. More importantly, the Fifth Circuit says it does not need a prior case on point to strip immunity. There's enough caselaw in the circuit that would have made officers aware severely beating a man who was both pinned to the ground and prevented from escaping by as many as 12 officers was unconstitutional.

On Plaintiffs’ facts, as Joseph lay on the floor behind the convenience-store counter in the fetal position, repeatedly asking for help and exclaiming that he was not armed, Officer Martin did not request compliance or warn Joseph before tasing him, using his baton on him, or punching him. Officer Costa did not command or warn Joseph before kicking or punching him. Officers Martin and Costa did not reserve their tasings, punches, and kicks as responses to active resistance. They put force first. The evidence here permits a finding that—unlike the proportionately responding officers in Pratt and, instead, like the disproportionately responding officers in Newman, Ramirez, and Cooper—Officers Martin and Costa violated clearly established law by failing to attempt less forceful alternatives and by continuing to inflict force despite Joseph committing no crime, posing no threat, and giving no active resistance.

To sum up:

We are entitled to count on law enforcement to use no more force than necessary. And we are entitled to enforce that standard as a matter of constitutional law when officers fail to honor it.

No qualified immunity will be standing between two officers and the trial awaiting them. And it's more precedent that puts cops on notice that excessive force won't be rewarded with judicial passes in the future.

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Filed Under: 5th circuit, duston costa, eddit martin, gretna, kendole joseph, police, qualified immunity


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  • icon
    That One Guy (profile), 25 Nov 2020 @ 2:57pm

    The rule stands: 'Only call the cops if you want someone dead'

    That this even needed to be said shows how utterly corrupt and horrifying the US legal system is. There is video evidence of half a dozen thugs with badges either beating, tasing and ultimately murdering someone suffering a psychotic break or sitting back and watching while that went on and it had to be explicitly ruled that no, that does not fall under acceptable police behavior which means that yes, they can be tried and potentially face consequences for their actions.

    Good on the judge for not falling for the legal abomination that is qualified immunity, but the fact that a case this damning even needed a circuit judge to rule on it shows just how utterly vile the law has become and how insanely privileged and protected police are from even the chance of consequences for their actions. With a corpse to point to, testimony of the store owner and video evidence of what took place this should have been the shortest murder trial in history, rather than something that higher courts needed to weigh in on and that still needs to go to court.

    reply to this | link to this | view in chronology ]

    • icon
      Another Kevin (profile), 25 Nov 2020 @ 4:27pm

      Re: The rule stands: 'Only call the cops if you want someone dea

      Is there a case on point that violent retaliation by police against jurors that convict a fellow officer is inappropriate police behaviour?

      The more outrageous the crime by police, the less likely that there will be a case on point - and therefore the more likely that they will be immunized.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Nov 2020 @ 6:58am

        Re: Re: The rule stands: 'Only call the cops if you want someone

        .. and therefore more likely that there will be retaliation, leading to more police violence ... rinse, repeat.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 25 Nov 2020 @ 6:07pm

      Re: The rule stands: 'Only call the cops if you want someone dea

      According to the quotes in the article, this "psychotic break" claim seems dubious at best.

      reply to this | link to this | view in chronology ]

    • identicon
      David, 26 Nov 2020 @ 9:34am

      Don't get overexcited

      That this even needed to be said shows how utterly corrupt and horrifying the US legal system is. There is video evidence of half a dozen thugs with badges either beating, tasing and ultimately murdering someone suffering a psychotic break or sitting back and watching while that went on and it had to be explicitly ruled that no, that does not fall under acceptable police behavior which means that yes, they can be tried and potentially face consequences for their actions.

      Two of them. The rest is not going to become the target of a wrist slap.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2020 @ 3:11pm

    Only two officers? It feels like more than that participating in whatever this horror show was.

    I can't believe officers seem to think this kind of response is okay, at any point did any officer say anything to the ones assaulting the man who was down?

    reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 25 Nov 2020 @ 4:52pm

      Re:

      These are people who want to be violent, and likely joined the police because they knew they would be provided both the opportunity to perform violence and protection from any consequences. The fact that additional officers kept joining in despite there being absolutely no need to shows they saw that opportunity and took it.

      reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 25 Nov 2020 @ 3:33pm

    Only one thing sucks about this ruling: It won’t bring back the man those cops killed.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 25 Nov 2020 @ 5:32pm

      Re:

      Two thing I'd say, it's not going to do much for the murdered man and it really should have involved every last person involved in the murder, not just two of them.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 25 Nov 2020 @ 6:42pm

      Four a day.

      It's a rough estimate, but about four people a day are killed by officer-involved violence. Mostly shootings.

      Most of these victims are unarmed and not resisting.

      Really, it's time to abolish the justice system, including law enforcement.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Nov 2020 @ 10:32am

        Re: Four a day.

        Abolish, no. Because while right now you've got four a day, abolish the entire system and suddenly you've got hundreds per day being killed by unchecked violence. Especially right now. Like it or not, the authority of law enforcement and the justice system is currently the only thing holding back numerous militias from taking violent action they consider right and just.

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 26 Nov 2020 @ 12:53pm

          The authority of law enforcement

          One of the problems we face comes from having serious problems and them being left to be solved by the bottommost rung of those who fall victim to it. Hence Occupy Wall Street not being taken seriously, not because the problem of wealth disparity is not real (it is and has gotten worse) but because they didn't have a solution.

          That said, yeah, abolishing the justice system in one day would probably disastrous, but I can't see it being more disastrous than not abolishing the police at all. We are in a fascist police state, and it's only going to continue to process marginalized groups, either exiled out into the wilds, or into mass graves.

          I'm sure there's a way to do it while adding in systems that can resolve conflicts without killing people. Granted, I'm not a statesman and don't know it, but neither do any of our statesfolk, and they seem to not be bothered they are so incapable.

          But it seems like the people are getting incrementally pissed at an establishment that disregards them. Taxation without representation and all that. So far their resistance has been mostly peaceful (intentionally so -- BLM organizers are taking their leads from specific scholars of non-violent resistance.) But it is only a matter of time before the people at large become so overwhelmed by rage and discontent that they (proverbially) march on Versailles.

          Or they can take cues from La Résistance and respond with a sabotage campaign.

          I'm sure the militias will be a problem. But they'll be a problem anyway, and the police don't actually slow them down. The nation is closely watching the Rittenhouse affair, to see if he actually gets full murder charges or they find a Twinkie defense by which to acquit him or lighten his sentence.

          If he does, that will send a message to those of us who are not real Americans™ that we voted illegally and are rights to life and liberty are not legal either.

          So yes, abolishing the justice system may require the collapse of the United States. But I'm not sure how that's any worse than the United States continuing to lumber toward a full-on holocaust, with no Allies in sight to rescue you and I.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 28 Nov 2020 @ 12:14pm

            Let’s be fair here — Occupy might have had ideas on how to make things better vis-á-vis financial institutions running roughshod over the American people, but they didn’t have a pithy, slogan-ready, “this will solve everything” solution that people could chant and put on T-shirts and whatnot. “Defund the police” is far catchier, far easier to remember, and far quicker to say/read than “divest funding from the police and put the money towards other social programs that could help people before they feel desperate enough to commit crimes”.

            The Occupy movement wasn’t ignored because it lacked a solution. It was ignored because it lacked a chant-ready “magic bullet” solution.

            reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 27 Nov 2020 @ 5:02am

          Re: Re: Four a day.

          "Because while right now you've got four a day, abolish the entire system and suddenly you've got hundreds per day being killed by unchecked violence."

          Probably not, given that for all intents and purposes vast areas of the US are already at a state where no resident willingly calls the police almost no matter what happens.

          However, let's assume, for a second, that what you say isn't hyperbole. That leaves us with the idea that the police killing four people a day for - very often - incredibly bad reasons is somehow acceptable because if the cops weren't murdering four people daily the US would turn into Venezuela.
          This is not a good look. It is, in fact a look I wouldn't normally expect to find in any G20 nation.

          "Like it or not, the authority of law enforcement and the justice system is currently the only thing holding back numerous militias from taking violent action they consider right and just."

          You need to read up on a fellow named Michael German. FBI special agent who infiltrated white supremacy movements and mapped their overlap with US law enforcement. The result were published.

          Suffice to say that dismantling the police will in many cases just mean a lot of those militias won't be patrolling the streets on daily basis while wearing a badge.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Nov 2020 @ 8:32pm

          Re: Re: Four a day.

          Wasn't there somewhere in the US where the police up and said "Fuck it, see how you cope without us" after a spot of (you guessed it) rioting after the police went ahead with more racial profiling-based enforcement? As I recall the town didn't go to shit after that. The assumption that a lack of police enforcement is going to let everything go to shit is pretty unfounded.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Nov 2020 @ 6:06am

          Re: Re: Four a day.

          "Because while right now you've got four a day, abolish the entire system and suddenly you've got hundreds per day being killed by unchecked violence. "

          Stopping police violence now equates to abolish the entire system?
          When did this occur?
          I suspect this is just another of the many exaggerations we have been subjected to, no actual substance to the claim.

          "authority of law enforcement and the justice system is currently the only thing holding back numerous militias from taking violent action they consider right and just."
          Am I supposed to be very afraid due to this ridiculous claim? Is this why the BillyBobBozos drive their silly trucks around with huge flags screaming at anyone in the vicinity?

          Stopping police violence is not going to result in the militia takeover of the world, even tho that is their wet dream - not gonna happen and you know it.

          Why do you want the police violence to continue unabated?

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 28 Nov 2020 @ 12:20pm

            exaggerations

            It's curious. The FBI has been required by congressional order to track every officer-involved homicide and report their findings to the BJS, which they've failed to do for decades. By 2014, when officer-involved violence became a forefront public concern during the Ferguson Unrest (much thanks to the rowdy, undisciplined behavior of the anti-riot police on site) a handful of NGOs had already started tracking officer-involved homicide incidents from local news and coroner reports. What they could find (which is different from what we estimate) was between 800 and 1800 incidents a year.

            After Ferguson a number of news agencies started contributing resources to tracking officer-involved shootings in the US. The Washington Post seems to find around 1000 a year, but has found that many districts do not have any requirement for precincts to report officer-involved incidents, and they don't. Humanitarian analysts have estimated the mortality of police-involved violence amounts between 1200-2000 a year

            (Yes, that's a huge error margin. Our precincts aren't cooperating. Again, the FBI is required by law to provide all this information and does not.)

            To amount to four a day, the police would have to kill 1461, which is on the generous side of the error threshold.

            Incidentally, in most incidents, the victim is unarmed and not resisting.

            And I get to it other posts, and there's plenty of material online, but the courts and prosecution are also corrupt and fuel the murder-without-consequence ring that law enforcement in the US enjoy. They also fuel the robbery racket that is asset forfeiture. And we've watched in plain sight the shenanigans over compromising SCOTUS loading it with Federalist Society justices who are obedient to masters other than their own consciences.

            So yeah, the need to rapidly, massively reform the justice system is a thing, and the resistance assured in the process warrants scuttling it all and finding alternatives.

            Unless you want civil war, in which case, carry on.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 28 Nov 2020 @ 2:24pm

              Re: exaggerations

              Agreed, massive reform is definitely needed.
              It can take a long time. Quick fixes like abolish and replace are usually flawed somehow.

              reply to this | link to this | view in chronology ]

              • icon
                Uriel-238 (profile), 28 Nov 2020 @ 2:42pm

                "Quick fixes are usually flawed somehow"

                Fixes are inevitably flawed. We can't achieve perfection and shouldn't strive for it, but for a system that is better than the one we have now.

                And as Trump has demonstrated to us, one tyrant can lay waste to generations of progress. This was one of the premises by which we tried to create a system that reduced tyranny. Incrementalism risks all that work getting undone in short time.

                The problem there, of course, is that systems will be hacked by those who want to preserve their power, and ours is a far cry from penetration-resistant.

                And to be fair, I'm not sure abolition of the justice system is even possible without violence. The police unions really like being allowed to murder whoever they want with impunity, and its white-nationalist subfactions do lean on the threat of nonwhite populations outgrowing white ones. When we take their powers away, they're probably going to respond by killing. A lot.

                So when I suggest we need to think of better solutions, I'm not being facetious. I really mean we need to work out a process to implement change that addresses (and doesn't accelerate) the growing destabilization.

                All this is to say I'm not a lawyer or an analyst, and we need a team of them to come up with some bright ideas.

                reply to this | link to this | view in chronology ]

                • icon
                  Upstream (profile), 28 Nov 2020 @ 3:23pm

                  Re: "Quick fixes are usually flawed somehow"

                  Unfortunately, for many lawyers and analysts, problems like those we are discussing equate to job security and profit. So they are often much more interested in perpetuating those problems than resolving them.

                  Ditto for politicians, many NGOs, charities, lobbyists, professional activists ... the list is long.

                  reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Nov 2020 @ 6:09am

        Re: Four a day.

        "it's time to abolish the justice system, including law enforcement."

        This sort of rhetoric does no one any good

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 28 Nov 2020 @ 11:59am

          "This sort of rhetoric does no one any good"

          Feel free to offer a better solution, not just to police violence, but to the corruption of judges and prosecutors as well as our law enforcement, but also our state and national prison systems which are comparable to Soviet gulags and German Konzentrationslager without hyperbole.

          We know the English solution and the French solution.

          Pretending that the problem can be ignored does no one any good. If you're wanting a non-violent resolution, you better get it out there soon: coalitions on both sides are fed up and arming up.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 28 Nov 2020 @ 2:29pm

            Re: "This sort of rhetoric does no one any good"

            Guess I just do not trust a whole lot.
            Someone trying to convince me to completely remove and replace an institution such as law enforcement is not going to get very far due to a huge lack of trust, not just me either.

            reply to this | link to this | view in chronology ]

            • icon
              Uriel-238 (profile), 28 Nov 2020 @ 2:46pm

              Re: Re: "This sort of rhetoric does no one any good"

              Yeah, I address this above.

              I don't know if the conflict can be defused without violent outbreak (or even a low body count). But I know Biden's prior back to normal rhetoric and ideas of incrementalism aren't going to cut it.

              And it's frustrating that the police can't seem to help themselves but keep shooting unarmed people, blacks and minorities in disproportionate numbers. It seems like the sort of thing a responsible institution should be able to not do.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 29 Nov 2020 @ 5:33am

                Re: Re: Re: "This sort of rhetoric does no one any good"

                Yup, and you made good points.

                I guess it will take a lot of people to actually give a shit, otherwise, as in the past nothing will be done to correct the problem(s).

                A place to start I suppose, is to no longer give leos a free steak dinner whenever they beat the shit outta some poor person. Removing incentives to terrorize the least capable of self defense may be too difficult for some, these people need to find a different career.

                reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 29 Nov 2020 @ 9:27am

            Re: "This sort of rhetoric does no one any good"

            Feel free to offer a better solution

            It's not a single solution, it's many things, because it's many problems.

            reply to this | link to this | view in chronology ]

            • icon
              Uriel-238 (profile), 29 Nov 2020 @ 1:25pm

              many things, many problems.

              I bet we have enough ink and paper. We even have some experts. All we need then is a coalition to hammer out the details, say in an online convention.

              If we could actually pull it off we might get a couple of musicals about the effort out of it.

              Granted, it could also go the way of the ERA and the NPVIC. So no promises.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 29 Nov 2020 @ 1:59pm

                Re: many things, many problems.

                … we might get a couple of musicals…

                Video released earlier this month: Judge Jennifer Elrod of the U.S. Court of Appeals for the Fifth Circuit and U.S. District Judge Charles Eskridge (S.D.Tex), along with other members of the bench performing, “We'll be back”, adapted from the hit musical Hamilton.

                This judicial performance has received online reviews. Some of those reviews do note the context within which the original version of the song appeared in the musical. Those reviews might be characterized as political commentary on the judicial performance.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 29 Nov 2020 @ 2:34pm

                  Re: Re: many things, many problems.

                  P.S. Btw & fwiw, you may notice that the instant case was heard before Elrod, Willett, and Oldham, Circuit Judges. In the video, Judge Jennifer Walker Elrod appears on the left side of the screen.

                  reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2020 @ 4:29pm

    "... and whether past precedent justifies the stripping of immunity"

    This makes it sound like immunity is the default condition, is this the case?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2020 @ 4:40pm

      Re:

      Unfortunately, the Supreme Court ruled that immunity applies until it can be proven that it doesn't.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2020 @ 5:36pm

      Re:

      This makes it sound like immunity is the default condition, is this the case?

      This makes it sound like you didn't read very much of Judge Willet's opinion, particularly the discussion of the applicable legal standards in part III, on pp.10-14.

      Is this the case?

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 25 Nov 2020 @ 5:22pm

    "Officer Bartlett recalled Joseph “yelling random things” and pleading for someone to “call the police.”

    Unfortunately, someone called the police...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2020 @ 5:28pm

    And it's more precedent that puts cops on notice that excessive force won't be rewarded with judicial passes in the future.

    ... in the 5th district. As a bonus, this likely serves as a circuit split.

    I am waiting, though for lawyers to use the "case on point" immunity requirement to prevent calling it a circuit split for the Supreme Court.

    "Nope, can't combine these cases. That case of immunity stripping involved alligators. This case involved crocodiles. They're obviously different, therefore you can't call them equivalent."

    Live by the quibble, die by the quibble.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2020 @ 7:43pm

      Re:

      Sorry, with this Court they make take up the split to reverse and opine that "Yes, this logic works". You've got a solid five-four split if you can connect God to it, bonus points if you throw a solid Trumpian curve on it. Speaking of God, may He help us all now that Sidney Powell, who in spite of all ethical and legal suicide attempts on her part, combined with two guilty pleas, managed to get her client off scot-free.

      reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 25 Nov 2020 @ 6:36pm

    It is still insufficient

    Aren't we still only talking about a civil trial, where even if the cops are found guilty (not at all a given) of violating Kendole Joseph's civil rights, the result will be merely a judgement of $$ to be paid by the City of Gretna taxpayers, or possibly by the city's insurance company, to the surviving plaintiffs?

    What really needs to happen is a murder trial for all 12 officers involved. And it needs to take place in a judicial, social, and political environment where, with the clear video evidence, physical evidence, and the testimony of the convenience store manager (and any other witnesses), a conviction is virtually assured, and these 12 cops are sentenced to (probably) life in prison.

    Getting rid of QI will be a good first step in the right direction, and we will be in a better position than we have been for a long time, but we will still be very far from where we need to be.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 26 Nov 2020 @ 2:50am

      Re: It is still insufficient

      "What really needs to happen is a murder trial for all 12 officers involved."

      This is the US of A we're talking about. The DA trying to bring those 12 officers up on charges can kiss his career goodbye and will be vilified for attacking Law and Order.

      Those officers could have strung Kendale up right there in the store and set him on fire chanting old dixie songs about burning the <N-word> and it's still doubtful the law of the land could touch them.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 26 Nov 2020 @ 3:39am

        If anything, them doing what you said they could do without repercussions would see them given honors by…oh, let’s call them a group of very fine people.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 26 Nov 2020 @ 4:45am

          Re:

          ...a group of very fine people odds are they're already part of.

          I mean, consider the way police union heads in the US so very often turn out to be associated with white supremacy movements...

          reply to this | link to this | view in chronology ]

      • identicon
        Bavo Bostoen, 26 Nov 2020 @ 7:20am

        Re: Re: It is still insufficient

        Wow, if this is true I find it shocking. How can law enforcement exert such power over a DA who is supposed to be independent? How do they organise this and why is it not exposed? I mean the facts speak for themselves. There is clearly less law and order with these criminals freely patrolling the streets.
        I really fail to understand how this passes...

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 Nov 2020 @ 10:24am

          Re: Re: Re: It is still insufficient

          It makes sense once you learn that police forces in the US began as forces for catching escaped slaves, and forces for busting worker unions.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 27 Nov 2020 @ 6:50am

          Re: Re: Re: It is still insufficient

          "Wow, if this is true I find it shocking. How can law enforcement exert such power over a DA who is supposed to be independent?"

          US District attorneys are usually elected. And no matter the state it's almost impossible to win an election if there's a perception you're being "soft on crime". The same holds true for judges - who are also elected, as are sheriffs.

          You need to watch a few attack ads sponsored by police union and GOP PAC's against "liberal" judges and DA's.

          "How do they organise this and why is it not exposed?"

          It's not organized because it doesn't need to be. Any judge or DA willing to prosecute police officers ends up targeted by the police unions in attack ads - so next election they're out in favor of the guy promising to have the back of Law and Order at all cost. Why do you think the George Floyd murder had the DA first trying to come out with a weak "third degree involuntary manslaughter" charge and then had to change his mind? He knew that even if there's multiple counts of photographic evidence of premeditated murder his career is gone once he levies an actual murder charge on the cop in Minneapolis.

          As to why this is not exposed? It is. It's been exposed again and again and again so very many times. It's like the gun lobby selectively targeting politicians who dare bring gun control to the table or pro-life PAC's organizing attack ads and mudslinging against liberal legislators.
          It's just not illegal for a state union representing the police forces to publicly imply the new DA candidate is a closet pedophile who gets his kicks out of getting murders and drug dealers back on the streets in return for some kickbacks in the form of money, drugs, and your kidnapped daughters.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 27 Nov 2020 @ 6:53am

          Re: Re: Re: It is still insufficient

          "There is clearly less law and order with these criminals freely patrolling the streets."

          ...ironically, yes.

          Looking at the crime statistics of ANY other nation in the G20 the US police in itself is responsible for a kill rate per capita higher than many other western nations have in actual murder rate caused by crime.

          You can slice that any way you like, it's not a good look for a "civilized" nation when its police officers kill more people per capita than the criminals do in other nations of - ostensibly - the same standard of development.

          reply to this | link to this | view in chronology ]

      • icon
        Gentleman Engineer (profile), 26 Nov 2020 @ 11:20am

        Re: Re: It is still insufficient

        This is the very reason why private prosecution is required (private individuals laying charges and prosecuting this charge upon approval by a judge).

        Placing the ability for bringing charges solely in one office invites abuse of discretion.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Nov 2020 @ 6:12am

          Re: Re: Re: It is still insufficient

          Private prosecution? You mean civil court?

          reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 29 Nov 2020 @ 9:31am

            Re: Re: Re: Re: It is still insufficient

            Private prosecution? You mean civil court?

            No.

            https://en.wikipedia.org/wiki/Private_prosecution

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 29 Nov 2020 @ 3:46pm

              Re: Re: Re: Re: Re: It is still insufficient

              Interesting, learned something new today.
              Too bad private prosecution is not allowed where I live, according to wikipedia.

              reply to this | link to this | view in chronology ]

              • icon
                Upstream (profile), 29 Nov 2020 @ 4:33pm

                Re: Re: Re: Re: Re: Re: It is still insufficient

                I once lived in a jurisdiction where private prosecutions were still allowed. I had a situation where I looked into the possibility of doing just that, since the government prosecutor was not interested in pursuing the case. I was advised by my lawyer that it was extremely risky, in that if I did not prevail (ie if the crook was not found guilty, or even if a conviction was overturned on appeal) that the crook could then sue me for false arrest, false imprisonment, malicious prosecution, etc, etc, and demand big $$ settlement. The crook could likely get a lawyer to take the case on a contingency basis (the 40% lawyers), but I would have to pay for my own defense (more big $$). I was told the odds of this happening, and me losing, were much greater than getting a conviction, and having it survive appeal. Of course, government prosecutors are covered by absolute immunity from such suits.

                Bottom line: If the government prosecutor does not want to prosecute, even if private prosecution is still technically allowed, you are still basically SOL, unless you are fabulously wealthy and can afford to take such risks. But if you are that rich, the government prosecutors will likely be on your side to begin with, so the question is moot.

                reply to this | link to this | view in chronology ]

  • identicon
    Bavo Bostoen, 26 Nov 2020 @ 7:13am

    For me this qualifies as murder

    I'm not a US citizen and no US law expert, buy I cannot even begin to understand the behavior of these cops and why they should be granted immunity in any way, shape or form. This is clearly homicide and all of them should stand trial on murder charges. Ethically there is no doubt whatsoever: why would courts prefer not to see this for wat it is?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Nov 2020 @ 8:18am

      Re: For me this qualifies as murder

      This is clearly homicide … why would courts prefer not to see this for what it is?

      So, if you were in Judge Willet's shoes, sitting as one judge of a three judge panel in the federal appellate court, and tasked with reviewing the decision of the federal district court below — if you were in Judge Willet's place — you would simply stand up and scream, “Homicide! Homicide, most foul!” …? That's what you'd do yourself? If you had judicial power?

      If we look down at the federal district court's decision, on pp.8-9, the plaintiffs had five claims against defendants in the case as of the summary judgment stage: Two federal claims, and three state law claims. Only the two federal law claims were at issue in the decision on summary judgement.

      Neither of those two 42 USC § 1983 civil claims can fairly be characterized as, “Homicide! Homicide, most foul!”

      So what should the law courts have done 'bout that? All the judges stand up and scream?

      reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 26 Nov 2020 @ 7:57am

    What caught my, outside of the obvious, was the note that a 300+lb. Officer was able to hike his considerable bulk over the counter to then sit on the victim.

    Somehow I very much doubt our cheeto chomper has the physique of a firefighter.
    Makes you wonder if there are any standards to become and remain employed as a cop.
    My conclusion is that there are none outside of supporting the Brotherhood no matter what.

    reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 26 Nov 2020 @ 11:42am

    Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered.

    This guy deserves to be nominated for insightful.
    This has been pointed out in comments several times, so it's a happy day when an actual judge actually states it in an actual court. (Yes, repetition is intended.)

    Also, whoever established that stupid rule in the first place should be tagged as inept to practice law and thrown out of court. I know it was the judge, but that shouldn't have stopped everyone else from kicking him out.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Nov 2020 @ 1:37pm

    First they'll try to de-legitimize you or your commenters...
    But after the lawsuit you won , you're prepared.

    reply to this | link to this | view in chronology ]


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