By Tim Cushing
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.