North Carolina Lawyers Weekly
“This has to stop.”
With just four words, the 4th U.S. Circuit Court of Appeals has laid down a marker.
The court was reviewing the case of a black homeless man in West Virginia who was stopped by a police officer for walking beside, not on, a sidewalk. The man, Wayne Jones, ended up dead with 22 bullets in him. The case was granted summary judgment three times in U.S. District Court. Each time the 4th Circuit sent it back.
In the most recent appeal, the district had found that five police officers involved in the shooting were entitled to qualified immunity. A 4th Circuit panel delivered a resounding “no” to that ruling and sent the case back yet again.
Judge Henry F. Floyd, a South Carolinian appointed by President George W. Bush, wrote the opinion, joined by Chief Judge Roger L. Gregory and Judge Stephanie Thacker.
State law, local ordinance
There is a state law in West Virginia that requires pedestrians to walk on a sidewalk when one is available; a local ordinance in the city of Martinsburg, where this incident took place, has a similar requirement.
In March 2013, Jones was wandering in a street when a police officer saw him and followed him for a minute. The officer, Lehman, stopped Jones and asked for identification. Jones had none. Lehman asked if Jones had any weapons; Jones, who had been diagnosed with schizophrenia, was confused and did not know how to answer the question. He asked what that meant—Jones, who had a small knife up his sleeve, acknowledged that he did have “something.”
Lehman called for backup and the incident escalated. He ordered Jones to put his hands on the car, but the man kept asking what he had done wrong.
Lehman pulled out a taser and tased Jones. Another officer arrived, also tasing Jones. The jolts appeared to have no effect. He scuffled, knocking Lehman’s hat into his eyes.
Jones ran. Another officer arrived. Two officers caught Jones and put him in a choke hold. The sound of gurgling was clear on an officer’s audio recorder.
On the ground
Jones was on the ground, now, with five officers around him. William Staub, the officer on the ground with the choke hold, felt a sharp poke in his side. He jumped up, shouting, “He’s got a knife!”
The five officers pulled back. Jones was motionless on the ground. He did not respond to an order to drop the knife, nor did he make any move toward the officers. Seconds later, 22 shots rang out, and Jones was dead.
A suit was filed by his estate, and this was the third appeal of the case, Floyd noted. The first two dismissals pertained to inadvertent admissions in discovery. The estate had failed to timely object to certain factual matters, mostly pertaining to his possession of a knife.
This appeal dealt with qualified immunity to the excessive force claim. One of the key questions raised was whether Jones was secured or not. Under law, an officer cannot use force, especially deadly force, on a secured suspect, Floyd wrote.
Also at issue for a jury to determine was whether Jones was incapacitated at the time of the shooting. Floyd wrote that a jury could determine Jones was struggling to breathe, given the gurgling sounds on audio. He was lying on the ground. His arm fell lifeless when Staub jumped up after sensing a sharp poke.
Also under law, at least since a 2011 4th Circuit case, an officer cannot use force, especially deadly force, on an incapacitated suspect, the judge said. Finding qualified immunity for the officers was an error by the district court, Floyd concluded.
But he wasn’t finished. The opinion closes with a powerful passage that frames the Jones case in the light of current events:
“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,” Floyd wrote, as the court remanded the case to the West Virginia district court.
