Fourth Circuit Confronts Issues of Race and Policing

2020 has so far seen several court opinions addressing racial discrimination in criminal cases in one way or another. A majority of the U.S. Supreme Court in Ramos v. Louisiana, 590 U.S. ___ (2020), struck down Louisiana’s practice of allowing non-unanimous jury verdicts, pointing to the law’s racist origins (Emily Coward blogged about the decision here). In State v. Bennett, ___ N.C. ___, 843 S.E.2d 222 (June 5, 2020) and State v. Hobbs, ___ N.C. ___, 841 S.E.2d 492 (May 1, 2020), the North Carolina Supreme Court sent back Batson claims for merits hearings at the trial court (before those decisions, Emily discussed the cases in part here). In State v. Copley, 374 N.C. 224 (April 3, 2020), the N.C. Supreme Court grappled with the issue of race in closing argument (Emily also wrote about the Court of Appeals opinion in that case here). Additionally, the court recently ruled in favor of two capital defendants in the Racial Justice Act litigation. See State v. Ramseur, ___ N.C. ___, 843 S.E.2d 106 (June 5, 2020) (holding repeal of RJA was unconstitutional as an ex post facto violation and granting evidentiary hearing on the merits of claims) and State v. Burke, ___ N.C. ___, 843 S.E.2d 246 (June 5, 2020) (same).

Turning to policing, the Court of Appeals recently weighed in on civil liability and the police, with a divided panel finding excessive force claims against the officer could proceed and affirming the trial court. See Bartley v. City of High Point, ___ N.C. App. ___, ___ S.E.2d ___ (July 7, 2020). Although the case did not involve allegations of racial bias, it focused on immunity issues that are common in such cases. At the Fourth Circuit, two recent decisions directly addressed issues of race and policing. The first case involved the denial of qualified immunity for officers involved in the fatal shooting of a black suspect; the second dealt with warrantless pedestrian stops. Both cases raise interesting and relevant concerns in the conversation on racial justice and police reform. The excessive force case is Estate of Wayne A. Jones v. City of Martinsburg, 961 F.3d 661 (June 9, 2020) and the warrantless stop case is U.S. v. Curry, ___ F.3d ___, 2020 WL 3980362 (July 15, 2020) (en banc). Today’s post examines the excessive force decision.

The Decision in Estate of Wayne A. Jones v. City of Martinsburg. In Jones, the Fourth Circuit reversed a grant of summary judgment and dismissal in a case stemming from five officers shooting an allegedly secured and incapacitated man in West Virginia. Jones, the decedent, was a 51-year old homeless black man with schizophrenia, initially stopped by police for walking in the road instead of on the sidewalk. (I summarized the facts in detail last week here.) Simply put, the encounter quickly escalated, and Jones was assaulted and eventually placed in a choke hold on the ground. While Jones was being held down, other officers tased, kicked, and cursed him. The officer holding Jones down “felt ‘like a scratch on [his] hand’” and few seconds later felt a “sharp poke in [his] side.” The officer stated that he saw a knife in Jones’ right hand and announced its presence to the other four officers. Jones was released from the chokehold and all the officers backed up to around five feet away. Jones was face down on the ground laying on his right side and not moving. He did not respond in any way to commands to drop his weapon. After five seconds, officers fired 22 rounds into Jones, killing him. A small fixed blade knife was found in Jones’ right sleeve. Officers could be heard discussing their need to get their story together in response to the shooting. One officer called it a “cluster.”

The decedent’s estate sued for civil rights violations based on excessive force under the Fourth Amendment (among other claims). The district court dismissed the case twice before this appeal and the Fourth Circuit reversed each time. On remand from the second appeal, the district court found that the officers were protected by qualified immunity and again dismissed the case. The Fourth Circuit again reversed, finding that the law was clearly established at the time of the shooting that officers may not use deadly force on a secured or incapacitated person. The court found that the plaintiff credibly alleged that Jones was either secured and under control of the officers at the time of the shooting or that Jones was already incapacitated at the time of the shooting (or both), so that he was no longer a threat (despite being armed with the knife). The case was remanded for trial against the individual officers.

Judge Floyd wrote the unanimous opinion, joined by Chief Judge Gregory and Judge Thacker. The court placed the case within the national context of protests over law enforcement tactics. The language used by the court is striking:

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. Jones slip op. at 20.

Those are powerful words from a federal appellate court, echoing calls for policing reforms that are being heard in the streets of communities across the nation.

Qualified Immunity. The case highlights the barrier that the doctrine of qualified immunity presents for people seeking relief for harms suffered at the hands of the police. Qualified immunity is a court-created and court-administered doctrine. It protects officers from civil liability unless they violate clearly established law—there must be a clear constitutional right that was violated, and the manner in which the right was violated must be clearly illegal. See Pierson v. Ray, 386 U.S. 547 (1967). What counts as “clearly established” is litigated a lot and isn’t always intuitive. See, e.g., Haze v. Harrison, 961 F.3d 654 (4th Cir. 2020) (finding the right of pretrial detainee to be free from unreasonable searches of his legal mail not clearly established). Critics of the doctrine argue it should be abolished for a number of reasons—it imposes too-high of a burden for plaintiffs trying to prove police misconduct, it fails to adequately hold police accountable for wrongdoing, and fails to deter such misconduct—among other critiques. See, e.g., Joanna Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1814 (Aug. 2018); see also Ziglar v. Abbasi, 582 U.S. ___, 137 S.Ct. 1843 (2017) (Thomas, J., dissenting) (arguing for repeal of qualified immunity on originalist grounds).

A Legislative Fix? Many had hoped that the U.S. Supreme Court would take a qualified immunity case last term and take a closer look at its application. That did not happen—the Court declined review in all eight petitions on the issue it considered this summer. While there is therefore no doctrinal shift on qualified immunity to report, the topic has entered mainstream consciousness in a big way. Various proposals to reform the doctrine are being debated and discussed in the U.S. Congress (although the future of any bill is far from certain) and in state legislatures, as well as in the media (see, e.g., here and here).

Qualified, but not Absolute. The Jones opinion signals that even without revision, the Fourth Circuit (which has jurisdiction to hear lawsuits involving violations of federal constitutional rights arising in North Carolina) will closely scrutinize claims of qualified immunity and will not allow the doctrine to transform into “absolute immunity.” To be sure, the plaintiff in Jones still must prove its case at trial. But other recent Fourth Circuit decisions send a similar message, denying officers qualified immunity in cases involving claims of apparently unjustified police shootings. See Ray v. Roan, 948 F.3d 222 (Jan. 2020) (shooting of a leashed dog at a residence); Betton v. Belue, 942 F.3d 184 (Nov. 2019) (unannounced entry and shooting in residence). The Jones opinion recognizes that policing is difficult and often dangerous work, but it warns officers that the court will not tolerate “fear-based” policing that fails to respect “the dignity and worth of black lives.”

Final Word. Curry, the other case on warrantless stops from the Fourth Circuit referenced above, is another important decision in the area of police reform and racial justice (as well as for Fourth Amendment jurisprudence). While the holding of the case deals with exigent circumstances and pedestrian stops, there’s robust discussion among members of the court on the role of so-called “predictive” or “hot spot” policing practices and the racial justice implications thereof for residents living in high-crime areas. I may cover it in detail soon (and will summarize it as a part of the July Fourth Circuit case summaries). It’s a massive 99-page set of opinions decided 9-6 in favor of the defendant with 4 separate opinions concurring with the majority and two dissents. The court was divided, and not just on the Fourth Amendment issues. It’s worth reading if you have a chance.