'This Has to Stop': US Appeals Court Revives Claims Against Police in Shooting Death | National Law Journal - Law.com

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Thousands march in Washington, D.C., protesting police brutality and the police-involved death of George Floyd in Minnesota. Credit: Diego M. Radzinschi / ALM

In a case about five police officers who shot a homeless black man 22 times as he was motionless on the ground, a panel of the U.S. Court of Appeals for the Fourth Circuit on Tuesday, echoing recent national protests, intoned: “This has to stop.”

The panel, led by Judge Henry Floyd who was joined by Chief Judge Roger Gregory and Judge Stephanie Thacker, reversed a lower court’s award of qualified immunity to the five officers of the city of Martinsburg, West Virginia, police department.

“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,” Floyd wrote.

The panel’s ruling comes as the U.S. Supreme Court is considering a raft of petitions asking the justices to revise, restrict or abolish their qualified immunity doctrine. The doctrine involves a two-step inquiry: whether a constitutional violation occurred and whether the right was “clearly established” at the time of the violation.

The petitions at the Supreme Court involve a number of different fact patterns. The justices could decide as soon as Monday whether they will agree to hear and decide any of them. Cross-ideological organizations have joined to support abolishing the doctrine. Several members of Congress have introduced legislation to do that as well.

In the Fourth Circuit case Estate of Wayne Jones v. City of Martinsburg and the five named law enforcement officers, Floyd noted that Jones was killed over one year before police in Ferguson, Missouri, fatally shot Michael Brown, whose death “would once again draw national scrutiny to police shootings of black people in the United States.”

Henry F. Floyd during his Senate Judiciary Committee confirmation in April 2011. Photo by Diego M. Radzinschi/ ALM

“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,” Floyd continued. “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.”

One police officer in Minneapolis has been charged with second-degree murder in the death of George Floyd, who was handcuffed on his stomach when an officer, for more than eight minutes, had his knee on Floyd’s neck. The arrest was recorded on video, and Floyd at various points yelled out “I can’t breathe.”

Floyd’s death has spurred nationwide protests in cities small and large, as demonstrators call for greater accountability at law enforcement agencies. Justices at the top courts in several states have issued statements in recent days broadly condemning the death of Floyd in police custody and calling on lawyers and judges to confront racism and injustice in society.

“We must continue to remove barriers to access and fairness—to address conscious and unconscious bias, and yes, racism. All of us, regardless of gender, race, creed, color, sexual orientation or identity, deserve justice,” California Chief Justice Tani Cantil-Sakauye said Monday.

Qualified immunity in civil cases often shields police officers from liability when, based on “clearly established law,” they “could reasonably believe that their actions were lawful.”

The Fourth Circuit panel had previously held that a jury could find that the Martinsburg officers violated Jones’ Fourth Amendment right to be free from excessive force and so the appeal turned on whether that right was clearly established. The panel on Tuesday ruled it was clearly established at the time of Jones’ death that officers may not shoot a secured or incapacitated person.

Jones initially was stopped by police for walking in the street instead of on the sidewalk. The judges found that Jones, although armed with a small knife up his sleeve, had been secured by the officers immediately before he was released and shot; and, although armed, Jones was incapacitated at the time he was shot.

Before he was shot, Jones had been hit with a Taser four times, kicked and placed in a choke hold, at which point gurgling can be heard in the video, the appeals court said.

“A jury could reasonably infer that Jones was struggling to breathe,” Floyd wrote. “He lay on his side and stomach on the concrete with five officers on him. And, viewing the evidence in the light most favorable to the estate, Jones was not even wielding the knife when the officers shot him; it was pinned under the right side of his body, which was on the ground, and tucked into his sleeve.”

Read more:

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