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Excessive Use of Force, the Fourth Circuit and In re Jones: This One’s Going to Leave a Mark.

I read numerous judicial opinions. I’ve read thousands (really, thousands). But sometimes an opinion stops me in my tracks, and I have to read it over again because I know it’s a ripple in the sea of judicial restraint. These ripples are few and far between. These ripples are a little blip. But they are a blip that is meant to grow and catch a wave, turning into or joining a tsunami of change. And that is what I found in Estate of Jones v. The City of Martinsburg, et al., Cause No. 18-2142 (4th Cir. Jun. 10, 2020).

In 2013, Mr. Wayne Jones, a black man experiencing homelessness was walking on the sidewalk when he was stopped by law enforcement. Immediately, the encounter escalated and never stopped. By the end of this encounter, Mr. Jones would be dead: “Armed only with a knife tucked into his sleeve, [Mr. Jones] 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.” A police officer asked him whether had a weapon. Jones asked what a weapon was. He was told, by the officer, a list of examples (knife, gun, etc.). Mr. Jones answered he might have “something.” He did. A small blade tucked in his right sleeve.

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Black Lives Matter Protestor, December 2014 — photo by Robert Stribley

Mr. Jones tried to leave. The first officer, Lehman, tased Mr. Jones. He also called for backup. The second officer arrived as Mr. Jones was being tased and for good measure, tased him as well. Mr. Jones broke away, apparently struck an officer in the face, and got away. The second officer, North, chased after him and thinking that Mr. Jones’ hands were “about to go up” and that he was “about to” be assaulted, North struck Mr. Jones in the brachial. In its analysis of events, the Fourth Circuit here introduces a zinger—a small sign of things to come—writing, “[u]nless he was clairvoyant, North could not have known that Jones’s hands were “about” to be raised.” Don’t think that’s a big deal? It is. Police officers usually receive huge reverence in their interpretation of what is “about to” happen and what they “think” will happen. But not this time.

After North hit Mr. Jones, another officer, Staub, arrived. He too ran towards Mr. Jones, who was now cornered. He raised his hands so Staub and North grabbed Mr. Jones’ hands. They did so with such violence that the three of them tumbled down the stairs. At that juncture, Staub put Mr. Jones in a chokehold, “[a] loud choking or gurgling sound, which seems to be coming from Jones, is audible on Staub’s audio recorder at this time.” Two more officers arrived, Neely and Herb, brining the count to five officers against one 165 lbs man. Mr. Jones was on the ground doing kicking movements with his legs. One officer called Mr. Jones a “mothef**ker.” At least one officer began kicking Mr. Jones while he was on the ground. The officers then tased Mr. Jones two more times, brining the total to four times. Mr. Jones was still in a chokehold.

The officers then claim that one of them felt a “stab” and all of them “saw a blade.” The five officers then stepped back, five feet, and encircled Mr. Jones. They yelled at him to drop the weapon, but Mr. Jones was motionless, his arm limp along his side. Mr. Jones laid there, motionless. So the officers stood around him and unloaded 22 rounds at Mr. Jones, causing 23 bullet wounds. He died shortly thereafter.

Upon searching the body, the officers found a small blade in Mr. Jones’ right sleeve. After the incident, the officers can be heard saying that it would be a “cluster” and that “they were going to ‘have to gather some f**king story.’”

Mr. Jones’ estate lost the case, repeatedly. They lost once on summary judgment and the decision was reversed on appeal. Mr. Jones lost again on summary judgment and appealed the case again. The district court then granted summary judgment against Mr. Jones a third time, based on qualified immunity. The district court found that because there was no other fact pattern matching this one, the officers did not violate clearly established law and could not have known that their actions were unconstitutional. This is qualified immunity and is the reason for which the doctrine must be discarded. In this case, the district court found that Mr. Jones was not “secured” under clearly established law and so the officers’ conduct was not governed by that line of cases. The fact that actions so egregious would have gone unaddressed is repugnant. Thankfully, though, the Fourth Circuit took a leap and, issuing its third appellate decision in this matter, took a stand.

First, the Fourth Circuit held that Mr. Jones could reasonably have been viewed as being “secured” when he was pinned to the ground by five officers. The Fourth Circuit reminded that handcuffs are not necessary to “secure” an individual, “so too could five officers pinning a 162-pound Jones secure him.” Given that, the Fourth Circuit found that tasing an individual who longer poses a threat, and who is secured as Mr. Jones was, is excessive force. Based on this, the Fourth Circuit concluded, “If Jones was secured, then police officers could not constitutionally release him, back away, and shoot him.”

Second, the Fourth Circuit reasoned that even if Mr. Jones was not secured, by the time he was shot 22 times, he was incapacitated. The Fourth Circuit laid out the facts that Mr. Jones had been tased four times, hit in the brachial plexus, and held in a chokehold. At that point, “[a] jury could reasonably infer that Mr. Jones was struggling to breathe.”

Third, the officers claimed Mr. Jones should just have “complied” and dropped the knife. The Fourth Circuit responded that, “the fact he did not move or respond corroborates that he was incapacitated, and the reasonable officer would have recognized that fact.” Again, a zinger building up to the final paragraph, “The officers shouting ‘drop the knife’ second 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 could have stopped there, but it didn’t. The few paragraphs of this twenty-one-page opinion are a crescendo of indignation, which culminates in one of the most beautiful paragraphs I’ve read in a judicial opinion. The court began its launch as follows, “Having zoomed in on the precise moments before Jones’s death, we pull back for context.” That context ends up encompassing the entire United States and current events. This rarely happens. The court draws one bright line, “Non-cooperation with law enforcement has never given officers carte blanche to use deadly force against a suspect; luckily for many of us, neither has being ‘armed’ with a small knife.” This may be the law, but it’s not always a given. The court, though, leaves no doubt. It keeps going: the officers escalated the situation.

“Instead, Officer Lehman quickly escalated the encounter.” This escalation, over which Mr. Jones had no control, took his life: “What we see is a scared man who is confused about what he did wrong, and an officer that does nothing to alleviate that man’s fears. That is the broader context in which five officers took Jones’s life.” What does this mean, though? How do we make sense of this? The court takes us over the finish line. I would only butcher the language if I tried to paraphrase it so here it is, in all its glory, bolding the sentences that hit me in the gut and brought tears to my eyes:

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.

This opinion is going to leave a mark, folks; a good one and a much needed one. Read it in full here.

Written by NDH Attorney Maria-Vittoria Carminati

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