A Fourth Circuit panel on Tuesday upended a West Virginia federal court's decision to cite the doctrine of qualified immunity in granting a quick victory to the city of Martinsburg in a case over an allegedly wrongful police killing, with the appellate judges declaring, "This has to stop."
Civil rights attorneys such as John L. Burris, who helped beating victim Rodney King win a $3.8 million verdict in a suit against the Los Angeles Police Department, said the Fourth Circuit's decision and other recent rulings by federal appeals courts reviving excessive force suits against police give them hope that a change in jurisprudence may be on the horizon.
"I hope this is the wave of the future and the U.S. Supreme Court will be more aggressive in looking at these qualified immunity cases," Burris told Law360. "Qualified immunity is really a get-out-of-jail-free card for these officers and gives them unnecessary protections."
The Fourth Circuit highlighted the unrest over police violence that is sweeping the nation in the wake of the killing of George Floyd in Minneapolis police custody as it handed down its decision in a suit brought by the estate of Wayne Jones, a black homeless man whom Martinsburg police officers shot 22 times as he lay motionless on the ground in 2013.
"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," the panel said. "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," referring to officers' fear for their safety.
The qualified immunity doctrine was adopted by the Supreme Court in 1967, and the scope of immunity was significantly expanded in a 1982 case called Harlow v. Fitzgerald
. That decision required a plaintiff to prove a constitutional rights violation under "clearly established" law. As a result, as long as there is no precedential court decision involving the same context and conduct, an officer is immune from liability for actions on the job, according to civil rights attorneys.Mahesha P. Subbaraman of Subbaraman PLLC, an attorney representing nonprofit civil rights group Restore the Fourth, said the decision serves as a "hopeful sign" that federal courts are beginning to pay attention to how the Supreme Court-created doctrine affects the lives of Americans in the broader context.
"[The Fourth Circuit] is essentially saying, 'Enough is enough. We can't allow fear to drive grants of immunity, and we have to recognize that everyone is deserving of dignity,'" he said. "The lives of people have to be factored into this equation and the judiciary can't continue to rubber-stamp these cases."
Colin Ram of McLeod Law Group, a personal injury and civil rights plaintiffs attorney whose Charleston, South Carolina, practice lies within the Fourth Circuit's jurisdiction, said the federal appeals court's approach to the case was significant because it looked at it from the individual's point of view rather than the police perspective.
"That struck me as a turning point," he said. "The Fourth Circuit and courts across the country are recognizing that whatever justified the creation of the doctrine of qualified immunity is no longer justified."
The Fourth Circuit's ruling was sandwiched between two other federal appellate court reversals of summary judgment decisions in favor of police accused of excessive force.
On June 8, the Fifth Circuit issued an unpublished opinion that revived a suit accusing two Rio Grande City, Texas, police officers of excessive force when they used a Taser on a teenage girl. On June 10, the Ninth Circuit said a jury should decide whether a California police officer used excessive force when he shot at a car nine times and killed a passenger in a driving-under-the influence traffic stop.
The U.S. Supreme Court adopted the qualified immunity doctrine in part to prevent the second-guessing of law enforcement agents who often have to make quick, on-the-spot decisions in tense circumstances, according to Ram. However, the doctrine has evolved over time and today, unless a case has nearly identical circumstances as those in previous cases, qualified immunity is generally applied, he said.
"You see that in the George Floyd case. You have police officers on a public street in broad daylight taking almost nine minutes to extinguish someone's life," he said. "That's not a split-second decision that was made, which was the Supreme Court's underlying concern in creating the doctrine. We're no longer in that place."
Subbaraman said it was notable that the Fourth Circuit took the time to parse out the facts of the Jones case.
"They could've just narrowly focused on the issue of incapacitation. Instead, they had a discussion about a person being secured," he said. "That's a discussion they didn't need to engage in, but by taking additional steps, the court developed much-needed law in this area. That's more of the kind of thinking we need if the fundamental rights of the Fourth Amendment are to be preserved."
However, it remains to be seen whether the issue will be revisited by the Supreme Court in the near future. Gregory Sisk, a professor at the University of St. Thomas School of Law in Minneapolis, said the high court has a long-standing practice of upholding the qualified immunity doctrine, so to reverse course would represent a significant shift.
"They have given [qualified immunity cases] a privileged place in their docket and are constantly taking qualified immunity cases and reversing, sending a powerful message to the lower federal courts to be very hesitant to second-guess police officers," he said. "There may well be three or four members of the court [in favor of overturning the doctrine], but to come up with five would be difficult."
However, McLeod Law Group's Ram said he believes there is a good chance the justices take on the issue because the current pool of pending qualified immunity cases have ideal circumstances and facts for overturning the doctrine. The justices are expected to make a decision on whether to grant certiorari for the cases on June 15, according to court records.
"I think it's very likely the Supreme Court will grant cert in these groups of cases," he said. "These particular cases that the Supreme Court has collected represent the appropriate vehicles to make the change and abrogate the doctrine."
In addition, the Supreme Court has requested additional briefings from some of the parties in the pending cases, which Ram said is somewhat unusual.
"Seeing them collect the cases for a single conference, looking at the underlying facts of the cases, and then seeing how the court is procedurally asking for additional briefing signals to a lot of practitioners that they are willing right now to take up those cases and address the core question of whether the doctrine can continue to stand or whether it should be abrogated," he said.
U.S. Circuit Judges Roger L. Gregory, Henry F. Floyd and Stephanie D. Thacker sat on the panel for the Fourth Circuit.
The estate of Wayne Jones is represented by Christopher E. Brown of The Brown Firm PLLC.
The city of Martinsburg is represented by Philip W. Savrin of Freeman Mathis & Gary LLP.
The case is Estate of Wayne A. Jones v. City of Martinsburg, W.Va., case number 18-2142, in the U.S. Court of Appeals for the Fourth Circuit.
--Additional reporting by Mike LaSusa and RJ Vogt. Editing by Jill Coffey and Breda Lund.