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.

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

Supreme Court Reverses Decision Granting Qualified Immunity To Guards Who Threw An Inmate Into A 'Feces-Covered' Cell

from the maybe-SCOTUS-will-roll-back-even-more-of-its-own-terrible-QI-advice dept

Late last year, the Fifth Circuit Appeals Court reached a truly horrendous decision. Judge Don Willett's scathing takedown of the "rigged game" that is qualified immunity -- delivered in a different opinion -- failed to move the dial in the Fifth Circuit, which found this doctrine could still cover a host of abusive behavior by government employees.

Making it easier to arrive at this dismal conclusion was the Supreme Court's qualified immunity related efforts over the years. The nation's top court has continuously tilted the scales in favor of misbehaving government employees, removing any common sense reading of the Constitution in favor of discussions about "clearly established" rights violations. This made it tougher to create precedent as plaintiffs had to show government employees were clearly aware their violations of rights were actually rights violations. The end result was more dismissals and less precedent.

Riding this lack of precedent to its illogical conclusion was this decision by the Fifth Circuit, handed down in late December of last year. Here's what the inmate suing prison officials and guards had to deal with:

Taylor stayed in the first cell starting September 6, 2013. He alleged that almost the entire surface—including the floor, ceiling, window, walls, and water faucet—was covered with “massive amounts” of feces that emitted a “strong fecal odor.” Taylor had to stay in the cell naked. He said that he couldn’t eat in the cell, because he feared contamination. And he couldn’t drink water, because feces were “packed inside the water faucet.” Taylor stated that the prison officials were aware that the cell was covered in feces, but instead of cleaning it, Cortez, Davison, and Hunter laughed at Taylor and remarked that he was “going to have a long weekend.” Swaney criticized Taylor for complaining, stating “[d]ude, this is [M]ontford, there is shit in all these cells from years of psych patients.” On September 10, Taylor left the cell.

A day later, September 11, Taylor was moved to a “seclusion cell,” but its conditions were no better. It didn’t have a toilet, water fountain, or bunk. There was a drain in the floor where Taylor was ordered to urinate. The cell was extremely cold because the air conditioning was always on. And the cell was anything but clean.

[Trent] Taylor alleged that the floor drain was clogged, leaving raw sewage on the floor. The drain smelled strongly of ammonia, which made it hard for Taylor to breathe. Yet, he alleged, the defendants repeatedly told him that if he needed to urinate, he had to do so in the clogged drain instead of being escorted to the restroom. Taylor refused. He worried that, because the drain was clogged, his urine would spill onto the already-soiled floor, where he had to sleep because he lacked a bed. So, he held his urine for twenty-four hours before involuntarily urinating on himself.

And here's the conclusion reached by the Appeals Court:

The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005–06 (finding no violation partly because the defendant stayed in the cell for only three days). That dooms Taylor’s claim.

The decision quoted the Supreme Court, which previously held that it wasn't "intolerably cruel" to house prisoners in "filthy" cells for "a few days." Fortunately, the Supreme Court [PDF] has reversed the Fifth Circuit's inexplicable decision, finding that this was a clear violation of rights.

The Fifth Circuit erred in granting the officers qualified immunity on this basis. “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U. S. 194, 198 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.

[...]

The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration.

The Supreme Court says there appears to be deliberate indifference on the part of at least a couple of the guards, given their remarks to Taylor.

[O]ne officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was “going to have a long weekend” [...] another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would “f***ing freeze”...

Of course, this never would have reached this stage if it wasn't for the Supreme Court's deliberate indifference towards plaintiffs suing over rights violations. But this at least upends one terrible decision from a lower court and suggests the nation's top court might finally be willing to start undoing the damage it's done.

Filed Under: 5th circuit, qualified immunity, supreme court

Supreme Court Rejects Appeals Court's Revival Of Anonymous Cop's Stupid Lawsuit Against BLM Activist

from the duty-to-not-be-a-litigious-dumbass-still-not-litigated-yet dept

Early last year, the Fifth Circuit Court of Appeals (which has more than its fair share of inexplicable decisions) released an inexplicable decision. The appeal arose from a lower court's dismissal of an injured cop's lawsuit against multiple parties over injuries he sustained when a protester threw a chunk of concrete at him.

The pseudonymous cop sued a number of entities, including "Black Lives Matter," a Twitter hashtag, and activist DeRay Mckesson. His claims against the social movement and the social media sorting mechanic didn't survive. But the Fifth Circuit Court felt it was plausible -- under Louisiana state law -- that Mckesson was somehow responsible for the injuries sustained by the cop.

According to the court, Mckesson should have known that leading protesters onto a highway would "provoke" a "confrontation" with law enforcement. Being aware of this potential provocation was enough for the court to revive Officer John Doe's idiotic attempt to hold Mckesson personally responsible for an act of violence committed by another person.

That ridiculousness has now been undone by the Supreme Court. The nation's top court rolls back [PDF] the Fifth Circuit's inexplicable resurrection of the cop's misguided claims and sends it back down the judicial food chain. Allowing this decision to stand would do damage to the First Amendment and invite similarly misguided lawsuits from plaintiffs like this one -- people seeking to bleed the biggest litigation target, rather than the person who perpetrated the injurious act.

The Supreme Court says the Fifth Circuit was right to recognize the issue, but was less correct in its handling of it.

As the Fifth Circuit recognized at the outset, Louisiana law generally imposes no “‘duty to protect others from the criminal activities of third persons.’” But the panel majority held that a jury could plausibly find that Mckesson breached his “duty not to negligently precipitate the crime of a third party” because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto the highway. 945 F. 3d, at 827. The dissent would have demanded something more—a “special relationship” between Mckesson and Officer Doe—before recognizing such a duty under Louisiana law.

It goes back to the courts, but not the Fifth Circuit. This one is being shipped to the Louisiana state Supreme Court, which needs to clarify the law -- and the alleged duty supposedly owed by Mckesson.

The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit. But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.

This isn't a win for Mckesson yet. But it most likely will end up that way. Reading the law the way the Fifth Circuit seemed inclined to would turn First Amendment-protected expression -- like Mckesson's attendance and participation in a protest -- into an enabler of frivolous lawsuits that would introduce a chilling effect on protests and demonstrations. Allowing random people to be sued for actions perpetrated by violent outliers would dissuade a great number of people from exercising their First Amendment rights. Hopefully, the state Supreme Court will recognize the collateral damage allowing these claims to continue would produce.

Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, louisiana, police, protests, supreme court

When It Comes To Qualified Immunity, Where Your Rights Were Violated Matters More Than The Fact Your Rights Were Violated

from the more-evidence-the-Fifth-Circuit-is-the-worst-circuit dept

Your rights are more protected in some areas of the country than in others. That's the conclusion reached by Reuters and its examination of qualified immunity cases across the country.

Reuters' first report on qualified immunity showed we have the Supreme Court to blame for the high bar plaintiffs must leap to hold police officers accountable for rights violations. The doctrine was created by the court back in 1967. Subsequent decisions have made it easier for cops to escape judgment by limiting the lower courts' ability to hand down precedent on rights violations. Fewer precedential decisions means fewer cops "know" their violation of citizens' rights was wrong, leading to more dismissals at summary judgment where all an officer has to do is raise the qualified immunity defense. If no case is on point, the cop wins and the victim loses.

But courts can interpret Supreme Court precedent differently, leading to some very noticeable variations in qualified immunity cases. This report shows the worst place to sue a police officer is the Fifth Circuit. This circuit covers Texas, Louisiana, and Mississippi. If you're a terrible cop, the best place to work is Texas, where the Appeals Court will side with you more often than in any other state.

Plaintiffs fared worst in [...] the 5th U.S. Circuit Court of Appeals, where judges habitually follow precedents that favor police.

The court granted 64% of police requests for immunity in excessive force cases.

If you're going to get brutalized by a cop, try to do it in California and deal with Ninth Circuit judges who have far less patience and sympathy for bad apples.

By contrast, the 9th Circuit has set a higher bar for police. The appellate judges there granted immunity in just 42% of police requests for immunity in excessive force cases.

But having your rights violated in California is no guarantee you'll ultimately succeed. The Supreme Court appears to have little patience for the Ninth Circuit's above-average defense of citizens and their rights.

The Supreme Court has repeatedly rebuked the 9th Circuit for its willingness to deny cops immunity, and especially for applying, as the high court wrote in a 2011 ruling, “a high level of generality” when analyzing the question of clearly established precedent.

The Fifth Circuit, on the other hand, rarely delivers decisions that will ultimately annoy the Supreme Court justices. And that's despite appeals court judges (well, Judge Don Willett anyway) calling out qualified immunity as the loaded dice in a rigged game plaintiffs almost always seem to lose.

There's more to it than just the qualified immunity doctrine. There's Supreme Court precedent that pretty much lets judges sidestep juries and decide for themselves whether an officer's assertions about "fear for their safety" was "reasonable" under the circumstances. This doctrine is derived from a 1989 decision (Graham v. Connor) where cops decided Graham, who was suffering from a diabetic attack, was drunk and proceeded to beat him into compliance, breaking his bones and bruising his body. All the while, cops ignored Graham's pleas for them to look in his wallet for his diabetes ID card.

The Supreme Court said this was fine because it was objectively reasonable for cops to assume Graham was drunk and possibly involved in a convenience store robbery that never actually occurred. Here's how Jeff Gamso breaks it down at the (sadly defunct) legal blog Fault Lines:

[T]he test is objective, so there’s a correct answer that any observer would know. (Graham wins.) Except, the test is also (you might want to sit down for this) subjective.

"The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."

So, to be clear, it’s an objective test that’s altogether subjective.

It’s also a test that explains why cops are free to shoot whoever they want. The only question is whether the shooting was reasonable. Whether it was reasonable is determined from the point of view of the cop who did the shooting. He thought it was. That’s all there is to it.

If a cop says their reaction was reasonable, it's taken to be objectively reasonable. The correct way to handle this is to allow the lawsuit to move forward to the trial stage, where members of the public can weigh the evidence and decide what's reasonable. But this step is almost always ignored and qualified immunity cases dismissed long before anyone besides the court weighs in on it.

The disparity in decisions across circuits isn't good for America or the public. This is just more unequal justice. Where your rights are violated matters more than the fact your rights were violated. In more plaintiff-friendly courts, it's the cops who have a higher bar to reach for dismissal.

A cop was denied immunity in Indio, California, after fatally shooting Ernest Foster Jr three times in the back during a foot chase at a shopping plaza, even though police recovered a gun from the scene.

An officer was denied immunity in Denver, Colorado, after shooting Michael Valdez in the back, severely injuring him, though the cop himself had been shot during the preceding car chase.

In other circuits, it's the plaintiff who's asked to surmount a bar set so high it's a wonder anyone can reach it.

[I]n Houston, a cop was granted immunity after fatally shooting Gerrit Perkins in the back while Perkins crouched in a closet holding a cordless phone. Perkins was unarmed.

And in Bradley County, Arkansas, an officer was granted immunity after shooting Davdrin Goffin in the back, partially paralyzing him, even though he had already been patted down for weapons. He, too, was unarmed.

This isn't the way it's supposed to work. Americans should have access to equal justice. The Supreme Court's deference to law enforcement officers has allowed qualified immunity to become the justice-destroying monster it is today. It could start reeling in the long leash it's given cops over the past 50 years by taking up any number of appeals sent its way by plaintiffs following appellate rejection. But it doesn't. It appears to be more interested in reversing lower decisions finding for plaintiffs whose rights have been violated than establishing precedent that might result in fewer rights violations in the future. That's a problem. Here in America, where a person lives matters more than the abuse they've suffered.

Filed Under: 5th circuit, 9th circuit, circuit split, police accountability, qualified immunity, supreme court

Appeals Court Says Parents Can Continue Suing The Three Mesquite Police Officers Who Helped Kill Their Son

from the wheels-of-justice-continue-inching-forward dept

It has been nearly seven years since 18-year-old Graham Dyer died due to injuries he sustained while riding in the back of Mesquite (TX) Police car. Dyer, all of 5'4" and 110 pounds, was picked up by Mesquite officers while experiencing a bad acid trip. Dyer had no idea what was happening to him or where he was. As the officers transported him to jail, he thrashed around in the back of the patrol car, ultimately slamming his head into the seat, window, and metal bars forty-six times.

The officers never bothered to restrain him. But they did stop the car to head into the back seat to tase him, including one prolonged burst (eight seconds) delivered directly to Dyer's testicles. Dyer's parents had no idea what had happened to their son, who was picked up in good health (bad trip notwithstanding) but was dead less than 24 hours later. The Mesquite PD refused to release any records of this arrest to Dyer's parents. The Dyers finally obtained some records, but from the FBI, which had been called in to investigate the in-custody death.

Armed with these records, the Dyers sued the officers and paramedics who handled the arrest and the less-than-adequate care their son received. The paramedics have been dismissed from the lawsuit, but most of the allegations against the officers survive. Two of the three officers involved are still facing the Dyers' lawsuit. And the Fifth Circuit Appeals Court has just thrown the third officer back into the mix, stripping the qualified immunity the lower court awarded him.

The Appeals Court says the lower court made the right call for two of the officers, who are facing deliberate indifference claims for apparently not caring at all the arrestee they were delivering to jail was possibly seriously injured. From the decision [PDF]:

The district court correctly found a genuine dispute concerning whether Gafford and Heidelburg were deliberately indifferent to the serious medical needs of a detainee in their custody. A reasonable trier of fact could find that those Officers were aware that Graham, in the grip of a drug-induced psychosis, struck his head violently against the interior of Heidelburg’s patrol car over 40 times en route to jail and thereby sustained severe head trauma. Both Officers told Graham to stop hitting his head and Heidelburg even pulled his patrol car over in an effort to stop him. Gafford acknowledged that, during his encounter with Graham, he knew “[t]here could be some inherent dangers” associated with head trauma; Heidelburg testified that what Graham was doing “certainly could” cause a head injury. Yet the Officers sought no medical care for Graham when they arrived at the jail. Nor did they alert jail officers (who had no way of knowing what had happened en route to the jail) of the possibility that Graham had seriously injured himself. The record instead reflects that the jail sergeant was “[i]nformed by [the] transport officers [that] Dyer had been medically cleared at the scene.”

As the court noted there, "no officer" informed jail staff about Dyer's possible injuries. That includes Officer Zachary Scott, who was also aware of Dyer's unrestrained thrashing in the back of the patrol car, but similarly chose to say nothing about it.

The district court found the Dyers “failed to present evidence that [Scott was] aware of facts indicating a risk of injury and inferred a risk of injury to Graham.” True, Scott’s affidavit stated he “never observed anything or any action by anyone which might cause a head injury on the part of [Graham],” nor did he “observe[] anything to indicate [Graham] might have any serious injury.” But his deposition testimony was quite different. Scott testified he assumed Heidelburg pulled the patrol car over because Graham “was banging his head.” Scott also testified he tried “to prevent [Graham] from banging his head on the back of the car.” Lastly, Scott stated he did not tell the jail sergeant about Graham slamming his head, nor did he recall hearing anyone else report it.

None of the officers seemingly cared if Dyer lived or died or even got a second look from jail medical staff. Dyer died and now all three officers will face deliberate indifference claims from Dyer's parents.

[I]n this case a reasonable jury could find that (1) Graham violently bashed his head against the interior of Officer Heidelburg’s patrol car over 40 times while en route to jail; (2) Officers Heidelburg, Gafford, and Scott were fully aware of Graham’s actions and of their serious danger; (3) the Officers sought no medical attention for Graham; and (4) upon arriving at jail, the Officers failed to inform jail officials what Graham had done to himself, telling them only that Graham had been “medically cleared” at the scene. From this evidence, a reasonable jury could conclude that the Officers “were either aware or should have been aware, because it was so obvious, of an unjustifiably high risk to [Graham’s] health,” did nothing to seek medical attention, and even misstated the severity of Graham’s condition to those who could have sought help.

Let's hope the jury is reasonable, because everything about these officers' actions isn't. The officers chose to handle a small teen's horrific drug reaction by subjecting him to further horrors, including several tasings. The audio from the in-car camera caught one officer telling the traumatized Dyer, "Motherfucker, I'm going to kill you." And so he did. Maybe not immediately, but that was the end result of these officers' actions -- actions that included choosing not to inform anyone about the multiple head injuries Dyer suffered while in their "care."

Filed Under: 5th circuit, graham dyer, mesquite, police, qualified immunity, texas

Appeals Court Says No Immunity For Cops Who Shot A Man Standing Motionless With His Hands In The Air

from the try-being-actually-reasonable-for-once,-officers dept

Federal judges continue to trip over themselves in their hurry to extend qualified immunity to law enforcement officers. No matter how egregious the violation -- and how simply wrong it appears to reasonable human beings -- cops can usually escape judgment by violating rights in new ways, ensuring there's no precedent that would make them aware they shouldn't do things like destroy someone's house after they've been given permission (and a key!) to enter.

This decision [PDF] from the Fifth Circuit (and the Fifth Circuit can be the worst about protecting the government from citizens it has aggrieved, stinging dissents from Judge Willett notwithstanding) involves officers who shot a man holding a knife. Given that judges seem to believe any weapon real or perceived that "threatens" an officer makes ensuing homicides wholly justifiable, this refusal by the court to bless the actions of reasonably-scared cops is more surprising than it should be.

The description of the events leading up to the shooting would seem to be laying groundwork for a QI-based dismissal:

In 2015, after a domestic dispute between Flores and his wife at Flores’s mother’s home, Flores’s mother called 9-1-1 for assistance. According to the 9-1-1 call transcript, Flores’s mother told the dispatcher that Flores beat up his wife and had “gone crazy”. Deputies Vasquez and Sanchez were dispatched to the residence in separate vehicles. While in route, dispatch advised Vasquez and Sanchez that Flores was upset, and that Flores wanted to commit “suicide by cop.” Vasquez was also informed that Flores had a knife.

The next paragraph, however, points to subverted expectations:

Twelve minutes elapsed between Vasquez’s arrival and the officers’ fatal shots at Flores. During those twelve minutes, the deputies had a number of encounters with Flores, and ultimately deescalated the situation. It was only after Flores was standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds that the officers looked at each other and then decided to shoot Flores. The officers each fired a shot, and Flores fell to the ground.

The Fifth Circuit says too many factual disputes remain unresolved. And one of the disputed facts is the officers' own testimony, which says something a cellphone camera recording of the incident does not: that officers were in danger of being attacked when they decided to shoot Flores as he stood motionless thirty feet away with his hands in the air.

Most significantly, the officers assert that “Deputies Vasquez and Sanchez were in imminent fear of death or serious bodily injury by the actions of Gilbert Flores at the time of the fatal shots.”

But the officers can't explain how they were in "imminent fear" when nothing about Flores' actions at the point he was shot indicated he was an imminent threat.

Flores had a knife, not a gun; was several feet away from the officers, the house, and the vehicle; had his hands in the air in a surrender position; and stood stationary in the officers’ line of sight. Under these facts taken in the light most favorable to Plaintiffs, we conclude that the district court correctly identified material factual disputes as to whether the officers violated Flores’s Fourth Amendment rights.

There is no automatic grant of qualified immunity because these officers should have known killing someone in a situation like this would be unlawful.

A reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.

With this rejection, there's probably a settlement on the horizon for the survivors of the shooting victim. The district court refused to dismiss the suit and the Fifth Circuit Appeals Court says the lower court's reasoning is sound and the right of citizens to not be killed by cops when they don't pose a threat is clearly established. Chalk up a win for the citizens, who, far too often, come out on the losing end when qualified immunity is in play.

Filed Under: 5th circuit, immunity, police shooting, qualified immunity

Not Clearly Established A Jailer Can't Spray A Prisoner In The Eyes With Pepper Spray For No Reason, Says Fifth Circuit

from the this-is-pretty-clearly-some-bullshit dept

A recent decision [PDF] by the Fifth Circuit Court of Appeals once again highlights the utter absurdity of qualified immunity. To qualify for immunity, all a law enforcement officer needs to do is show they violated someone's rights in a new way -- one not previously considered by the court. Since there's no on-point precedent, it was not "clearly established" that this violation of rights was actually a violation of rights the officer should have been aware of, so the officer walks away from the lawsuit unscathed.

"On-point" means this exact thing happened before. If a cop shoots an unarmed person who happened to walk by a window rather than through a door, and it's only been established that shooting an unarmed person walking through a door is a Constitutional violation, the window shooting is good to go and qualified immunity is handed to the officer. Even when it should be apparently clear shooting an unarmed person through a window would violate their right to be free of bullets when walking past their own windows while inside their own home, it somehow isn't clear to cops. Nor is it to the courts, that only consider established precedent when deciding whether or not an officer's actions were "reasonable" in this situation.

This case involves the actions of a corrections officer. Prince McCoy was sprayed in the face with pepper spray by a guard referred to in the lawsuit only as "Mr. Alamu."

Here's McCoy's side of the story:

On that day in 2016, Alamu came by McCoy’s cell block. As Alamu approached the cell of Marquieth Jackson, one of McCoy’s neighboring inmates, Jackson threw some water on Alamu. Alamu radioed a sergeant, “who dealt with the matter.” About an hour and a half later, Alamu returned to conduct a roster count. Again, Jackson doused Alamu with water. Angered, Alamu grabbed his chemical spray and yelled “where you at?” repeatedly at Jackson. McCoy’s fellow inmates screamed “you can’t spray him!” But because Jackson had blocked the front of his cell with sheets, Alamu couldn’t do anything. Two minutes passed. Alamu re-holstered the spray and walked toward McCoy’s cell, asking for McCoy’s name and prisoner number. As McCoy approached the front of the cell to inform him, Alamu “sprayed [McCoy] directly in the face with his [chemical] spray for no reason at all.”

And here's Mr. Alamu's:

He states that after being “chunked with an unknown liquid” by Jackson, he “immediately . . . ran away from the cell for cover.” As he approached McCoy’s cell, he “went blank” after McCoy threw “an unknown weapon” at him, striking him in the face. Feeling that his “life was in danger,” “the next thing that crossed [his] mind was to use” the spray. He characterized his panicked reaction as an “involuntary action.” Documents in the record suggested that the “weapon” was a “piece of rolled toilet paper.” McCoy denies throwing anything.

It's refreshing to know correctional officers feel it's acceptable to "go blank" when (allegedly) being hit in the face with a "piece of rolled toilet paper." "Going blank" is great -- especially when tied to "life in danger" -- because it can be used to justify every bit of excessive force that happens after that. This doesn't work for civilians. Assaulting someone after "going blank" and supposedly acting in self-defense tends not to sway juries when the end result is an unarmed, assaulted victim.

The prison's Use of Force report determined Alamu's pepper spraying of McCoy was unnecessary and inconsistent with policy. Alamu was placed on three month's probation. The Fifth Circuit is far more sympathetic to Alamu's use of unnecessary force. It does find Alamu violated McCoy's rights by spraying him with pepper spray because a different prisoner had thrown water on Alamu.

Alamu has two main responses, but neither saves him. First, he contends that he reasonably perceived a threat because McCoy threw a wad of toilet paper at him. But even if that factual contention might persuade a jury, it does not justify summary judgment. McCoy denies throwing anything at Alamu and supports his denial with competent evidence. Relatedly, Alamu suggests that the spray was justified because the undisputed facts showed that Jackson had twice thrown liquids on Alamu. But the conclusion doesn’t follow: Alamu sprayed McCoy, not Jackson. McCoy should not bear the iniquities of his fellow inmate.

Second, Alamu appears to contend that McCoy cannot show a violation because his injuries were de minimis. But unfortunately for Alamu, the Supreme Court has rejected that line of reasoning. “Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins, 559 U.S. at 38. Accordingly, because a reasonable jury could conclude that Alamu’s use of force was excessive, McCoy meets his burden at the first QI prong.

But that's the end of the good news. Although McCoy cited previous cases pretty much on point dealing with the assault of prisoners who posed no threat to officers, the court decides those cases just aren't "on point" enough.

Above, we held that the spraying crossed that line. But it was not beyond debate that it did, so the law wasn’t clearly established. This was an isolated, single use of pepper spray. McCoy doesn’t challenge the evidence that Alamu initiated the Incident Command System immediately after the spray, nor that medical personnel promptly attended to him and provided copious amounts of water. Nor does he provide evidence to contest the Use of Force Report’s finding that Alamu used less than the full can of spray… [O]n these facts, it wasn’t beyond debate that Alamu’s single use of spray stepped over the de minimis line. For that reason, the law wasn’t clearly established.

The dissent asks the questions that need to be asked -- the ones that aren't addressed by the majority. Why is it still OK to pepper spray someone when it's been clearly established assaulting a prisoner in the same position with fists, batons, or Tasers isn't? As the dissent points out, pepper spray is arguably more dangerous than anything else on this list.

Although the majority purports to recognize that the instrument of force does not matter in a “no provocation” case, its grant of immunity ultimately turns on the fact that the guard used pepper spray instead of a fist, taser, or baton. It relies on the absence of law clearly establishing that wantonly spraying a prisoner with a chemical agent involves more than a de minimis use of force. The same could have been said in Newman about tasing. Unexplained in the majority opinion is why tasing is a more serious use of force than pepper spraying. The use of pepper spray is no small thing. The chemical agent, which temporarily blinds its recipients, is—unlike tasers—banned for use in war.

As for the majority's inability to find a case on point to deny QI, the dissent says its willingness to abandon common sense in favor of precedent does not reflect well on it.

The majority neglects that the gratuitous tasing in Newman was deemed an “obvious” case of excessive force, 703 F.3d at 764, a label that also fits the pepper spraying of McCoy “for no reason.” Qualified immunity is often a game of find-that-case, but not always. Common sense still plays a role; when the violation of constitutional rights is “obvious,” there is no immunity. [...] That knowledge of illegality necessarily exists when an officer commits an obvious constitutional violation. That’s what obvious means.

Our rights are supposed to protect us from our government. But somehow, these rights are only vaguely established when they're violated by government employees. Years of jurisprudence hasn't brought us any closer to a "reasonable" ideal that actually reflects reasonable thought, much less common sense. The only thing "clearly established" is that law enforcement officers can violate rights with almost no fear of reprisal.

Filed Under: 5th circuit, clearly established, police, prince mccoy, qualified immunity

Appeals Court Revisits Its Terrible New Orleans Protest Decision, Changes Nothing About Its Rejection Of First Amendment Protections

from the where-is-the-1st-amendment? dept

Earlier this year, the Fifth Circuit Appeals Court inexplicably allowed an anonymous police officer to continue suing activist DeRay McKesson for the injuries he sustained when someone (not DeRay McKesson) threw a chunk of concrete at him during a protest in New Orleans.

Never mind the First Amendment, said the court. What about the duty of care McKesson somehow inherited when he chose to organize a protest? Since the protest deliberately broke the law by blocking traffic, the court decided McKesson was at least indirectly responsible for any violence resulting from the inevitable clash between protesters and law enforcement.

Given the intentional lawlessness of this aspect of the demonstration, Mckesson should have known that leading the demonstrators onto a busy highway was most nearly certain to provoke a confrontation between police and the mass of demonstrators, yet he ignored the foreseeable danger to officers, bystanders, and demonstrators, and notwithstanding, did so anyway. By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

If a protest results in unlawful actions, the people organizing the protest bear the collective guilt of every unlawful action engaged in by other protesters. It's an authoritarian's wet dream come true, courtesy of one of the most conservative appellate courts in the land.

The Appeals Court has revisited this decision. Don't bother holding your breath. The retake [PDF] changes nothing in the majority opinion. The replacement opinion is the same opinion, restating the things the court said last time when it decided McKesson's "negligence" makes him responsible for the injuries sustained by a cop attacked by another protester.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

The table is pounded once more for emphasis:

We iterate what we have previously noted: Our ruling at this point is not to say that a finding of liability will ultimately be appropriate. At the motion to dismiss stage, however, we are simply required to decide whether Officer Doe’s claim for relief is sufficiently plausible to allow him to proceed to discovery. We find that it is.

McKesson may ultimately be cleared, but it's going to cost him even more time and money. This isn't the way this should have worked out. The only thing worth reading in this opinion is Judge Don Willett's addition. In it, Willett reverses his original position, which agreed with the majority's conclusion that the First Amendment didn't cover McKesson's actions. It opens with an apology of sorts:

I originally agreed with denying Mckesson’s First Amendment defense. But I have had a judicial change of heart. Further reflection has led me to see this case differently, as explained below. Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Willett says the case should be remanded to Louisiana's Supreme Court for it to decide whether there is actually a "duty of care" present in situations like these, and if so, is it still recognized when there is no direct relationship between McKesson and the protester who assaulted the unnamed police officer? Willett points out that if there's no "duty of care," there's no case. And if there's no case, the First Amendment escapes unscathed.

The appeals court's decision, however, does do damage to free speech rights.

Even assuming that Mckesson could be sued under Louisiana law for “negligently” leading a protest at which someone became violent, the First Amendment “imposes restraints” on what (and whom) state tort law may punish. Just as there is no “hate speech” exception to the First Amendment, “negligent” speech is also constitutionally protected.

Willett says the facts of the case shouldn't allow it to proceed any further. There's no "there" there and it seems highly unlikely Officer Doe could sufficiently amend his complaint to clear this initial hurdle.

Doe strings together various unadorned contentions—that Mckesson was “present during the protest,” “did nothing to calm the crowd,” “directed” protestors to gather on the public street in front of police headquarters, and “knew or should have known . . . that violence would result” from the protest that Mckesson “staged.” Even taking these impermissibly conclusory allegations as true, the complaint lacks sufficient factual detail to state a claim for negligence, much less to overcome Mckesson’s First Amendment defense.

At best, the officer's allegations are still the worst.

Indeed, the lone “inciteful” speech quoted in Doe’s complaint is something Mckesson said not to a fired-up protestor but to a mic’ed-up reporter—the day following the protest: “The police want protestors to be too afraid to protest.” Tellingly, not a single word even obliquely references violence, much less advocates it. Temporally, words spoken after the protest cannot possibly have incited violence during the protest. And tacitly, the majority opinion seems to discard the suggestion that Mckesson uttered anything to incite violence against Officer Doe.

Willett notes the Supreme Court of the United States has recognized First Amendment protections for speech far more inciting than anything McKesson uttered. Bypassing this precedent in favor of vague state-level law is the wrong call, especially if the Appeals Court isn't going to let the state's highest court weigh in on the issue.

This second take is being appealed by McKesson. That's more money and time being spent to defend against a lawsuit composed mostly of boilerplate cribbed from one of Larry Klayman's more outlandish efforts. And yet the case still lives and still threatens to undermine the First Amendment. As Garrett Epps points out for The Atlantic, time is of the essence and only the nation's top court can stop the bleeding.

Earlier this month, Mckesson, represented by the ACLU, asked the Supreme Court to review the case. If the Court is serious about its First Amendment jurisprudence, it should grant the petition and, in a one-line opinion, summarily reverse the Fifth Circuit. If it’s unwilling to do that, it should stay the trial below and hear the case now.

What it should not do is deny the petition and allow a civil trial against Mckesson, then review the First Amendment issue if Mckesson loses. The danger of cases like this is not simply the possibility of local juries turning their ire on unpopular defendants; it is the certainty that this type of lawsuit will impose crippling litigation costs on those defendants. Appellate vindication years later will be of little use; they will likely be bankrupt by then.

Until (or if) SCOTUS takes this up, the ruling stands. Being at the same protest as people who attack law enforcement is now the problem of protest organizers, at least in the state of Louisiana. Officer Doe may not ultimately prevail, but someone engaged in supposedly-protected activity still has to defend himself against the cop's ridiculous claims.

Filed Under: 1st amendment, 5th circuit, black lives matter, deray mckesson, free speech, new orleans, protests

Court: It's Cool If The (Federal) Government Searches A Phone The (Local) Government Seized Illegally

from the Fifth-Circuit's-bizarre-vendetta-against-the-Constitution-continues dept

The Fifth Circuit Court of Appeals has decided it's OK if a government agency searches a phone that should never have been seized in the first place… so long as it's not the same government agency that illegally seized it. The illegality of the original seizure -- which should have provoked some discussions of poisonous trees and their harmful fruit -- is pretty much discarded in favor of the good faith exception.

The backstory is this: Charles Fulton Jr. was targeted by the Galveston (TX) Police Department -- working in tandem with the FBI -- for sex trafficking and prostitution of teens. He was ultimately found guilty on four sex trafficking charges, prompting this appeal of the district court's refusal to toss out the evidence pulled from his seized phone.

Here's how the seizure and very eventual search went down, taken from the court's decision [PDF]. (Some emphasis added for reasons that will become apparent momentarily.)

In February 2015, Galveston police obtained a search warrant on the Avenue L house where the prostitution was based. The warrant, though, was due to a separate investigation into Fulton’s narcotics activities. Fulton’s cellphone was seized. Nine days later, police obtained a second warrant to examine its contents but were unable to bypass the phone’s security features. Around this same time, the FBI agent assisting with the Fulton sex-trafficking investigation learned that the Galveston police had the phone. The agent acquired it to determine if the FBI could access the phone’s data. Three weeks later, that agent obtained a federal warrant to search the phone. Still, it took a year before the data on the phone was accessed. The FBI discovered evidence that helped piece together Fulton’s involvement with the minor victims.

Recovered from the phone were text messages and photographs linking Fulton to the five minor victims he was trafficking. Fulton challenged the original seizure of the phone by the Galveston PD, hoping that a finding in his favor would eliminate the evidence pulled from the phone by the FBI.

The appeals court agrees with Fulton that the phone's seizure was illegal. The warrant makes no mention of seizing phones or other electronics. And yet, that's exactly what was seized. The government tried to claim Fulton's phone was pretty much the equivalent of something else actually mentioned in the warrant.

This narcotics warrant did not mention cellphones. The alleged equivalent was a reference to “ledgers,” which is a “book . . . ordinarily employed for recording . . . transactions.” Ledger, OXFORD ENGLISH DICTIONARY (2d ed. 1989). The government argues that is enough, because this court has held that a cellphone that is “used as a mode of both spoken and written communication and containing text messages and call logs, served as the equivalent of records and documentation of sales or other drug activity.”

The government quoted precedent allowing the word "ledger" to stand in for "computers, disks, monitors" and other hardware that might contain the equivalent of a ledger. The court says all that would be fine if the government made any mention of ledger equivalents in its warrant. But it didn't.

We do not see the same factors involved in the present case. There was nothing in the Galveston warrant suggesting that anything similar to computers or even electronics was to be seized. Moreover, the officer in this case was a veteran of the Galveston Police Department’s narcotics unit, and he indicated at the suppression hearing that he knew cellphones are used in the drug trade. Though a ledger can serve one of the myriad purposes of a cellphone, we do not extend the concept of “functional equivalency” to items so different, particularly one as specific, distinguishable, and anticipatable as a cellphone.

The government says the good faith exception should apply to the FBI's search of the illegally-seized phone. This argument wasn't even addressed by the lower court, which found other grounds to grant the government's use of this evidence.

The appeals court does take a swing at this argument, though, but not to the benefit of Fulton and others similarly-situated in the circuit. Good faith it is.

We conclude that viewed objectively, an FBI agent who obtained a search warrant in these circumstances would not have had reason to believe the seizure and continued possession of the cellphone by the Galveston police were unlawful.

The (federal) government gets this win even though the (local) government has just been handed a loss. Despite the fact the two agencies worked "in tandem" on this investigation, the court still decides the reasonably ignorant FBI agent had no way of knowing the phone handed to them by their investigation partner had been seized illegally.

And I suppose that's possibly true. The FBI assists in many investigations instigated by local agencies once there's a possibility that federal charges may be the end result. But a decision like this just encourages everyone in a joint investigation to be as blissfully ignorant as possible to obtain the best possible chance at securing a good faith ruling. In this case, an agent was working directly with the Texas agency and found out the Galveston PD had seized a phone, but didn't take a look at the PD's paper trail before crafting an affidavit of their own. That's the exact opposite of "good faith." That's bad faith -- the least amount of knowledge and effort combining to allow for law enforcement rule-bending and access to pre-made judicial excuses molded from years of slack-cutting precedent.

Filed Under: 4th amendment, 5th circuit, charles fulton jr., fbi, federal government, illegal searches, local government