This is how District Judge Carlton W. Reeves began his August 4, 2020 order in Jamison v. McClendon, which you can read for yourself.
The main text, in the Times typeface, and all the footnotes are Judge Reeves’.
My comment are indented in the Helvetica typeface.
____________________
No. 3:16-CV-595-CWR-LRA
CLARENCE JAMISON, Plaintiff
v.
NICK MCCLENDON,
In his individual capacity, Defendant.
____________________
ORDER GRANTING QUALIFIED IMMUNITY
____________________Before CARLTON W. REEVES, District Judge.
Clarence Jamison wasn’t jaywalking.1
He wasn’t outside playing with a toy gun.2
He wasn’t outside playing with a toy gun.2
He didn’t look like a “suspicious person.”3
He wasn’t suspected of “selling loose, untaxed cigarettes.”4
He wasn’t suspected of passing a counterfeit $20 bill.5
He didn’t look like anyone suspected of a crime.6
He wasn’t mentally ill and in need of help.7
He wasn’t assisting an autistic patient who had wandered away from a group home.8
He wasn’t suspected of “selling loose, untaxed cigarettes.”4
He wasn’t suspected of passing a counterfeit $20 bill.5
He didn’t look like anyone suspected of a crime.6
He wasn’t mentally ill and in need of help.7
He wasn’t assisting an autistic patient who had wandered away from a group home.8
He wasn’t walking home from an after-school job.9 He wasn’t walking back from a restaurant.10
He wasn’t hanging out on a college campus.11
He wasn’t standing outside of his apartment.12
He wasn’t inside his apartment eating ice cream.13
He wasn’t sleeping in his bed.14
He wasn’t sleeping in his car.15
He wasn’t hanging out on a college campus.11
He wasn’t standing outside of his apartment.12
He wasn’t inside his apartment eating ice cream.13
He wasn’t sleeping in his bed.14
He wasn’t sleeping in his car.15
He didn’t make an “improper lane change.”16
He didn’t have a broken tail light.17
He wasn’t driving over the speed limit.18
He wasn’t driving under the speed limit.19
No, Clarence Jamison was a Black man driving a Mercedes convertible.
He didn’t have a broken tail light.17
He wasn’t driving over the speed limit.18
He wasn’t driving under the speed limit.19
No, Clarence Jamison was a Black man driving a Mercedes convertible.
____________________
1 That was Michael Brown. See Max Ehrenfreund, The risks of walking while black in Ferguson, WASH. POST (Mar. 4, 2015).
2 That was 12-year-old Tamir Rice. See Zola Ray, This Is The Toy Gun That Got Tamir Rice Killed 3 Years Ago Today, NEWSWEEK (Nov. 22, 2017).
2 That was 12-year-old Tamir Rice. See Zola Ray, This Is The Toy Gun That Got Tamir Rice Killed 3 Years Ago Today, NEWSWEEK (Nov. 22, 2017).
3 That was Elijah McClain. See Claire Lampen, What We Know About the Killing of Elijah McClain, THE CUT (July 5, 2020).
4 That was Eric Garner. See Assoc. Press, From Eric Garner's death to firing of NYPD officer: A timeline of key events, USA TODAY (Aug. 20, 2019).
5 That was George Floyd. See Jemima McEvoy, New Transcripts Reveal How Suspicion Over Counterfeit Money Escalated Into The Death Of George Floyd, FORBES (July 8, 2020).
6 That was Philando Castile and Tony McDade. See Andy Mannix, Police audio: Officer stopped Philando Castile on robbery suspicion, STAR TRIB. (July 12, 2016); Meredith Deliso, LGBTQ community calls for justice after Tony McDade, a black trans man, shot and killed by police, ABC NEWS (June 2, 2020).
7 That was Jason Harrison. See Byron Pitts et al., The Deadly Consequences When Police Lack Proper Training to Handle Mental Illness Calls, ABC NEWS (Sept. 30, 2015).
8 That was Charles Kinsey. See Florida policeman shoots autistic man’s unarmed black therapist, BBC (July 21, 2016).
4 That was Eric Garner. See Assoc. Press, From Eric Garner's death to firing of NYPD officer: A timeline of key events, USA TODAY (Aug. 20, 2019).
5 That was George Floyd. See Jemima McEvoy, New Transcripts Reveal How Suspicion Over Counterfeit Money Escalated Into The Death Of George Floyd, FORBES (July 8, 2020).
6 That was Philando Castile and Tony McDade. See Andy Mannix, Police audio: Officer stopped Philando Castile on robbery suspicion, STAR TRIB. (July 12, 2016); Meredith Deliso, LGBTQ community calls for justice after Tony McDade, a black trans man, shot and killed by police, ABC NEWS (June 2, 2020).
7 That was Jason Harrison. See Byron Pitts et al., The Deadly Consequences When Police Lack Proper Training to Handle Mental Illness Calls, ABC NEWS (Sept. 30, 2015).
8 That was Charles Kinsey. See Florida policeman shoots autistic man’s unarmed black therapist, BBC (July 21, 2016).
9 That was 17-year-old James Earl Green. See Robert Luckett, In 50 Years from Gibbs-Green Deaths to Ahmaud Arbery Killing, White Supremacy Still Lives, JACKSON FREE PRESS (May 8, 2020); see also Robert Luckett, 50 Years Ago, Police Fired on Students at a Historically Black College, N.Y. TIMES (May 14, 2020); Rachel James-Terry & L.A. Warren, ‘All hell broke loose’: Memories still vivid of Jackson State shooting 50 years ago, CLARION LEDGER (May 15, 2020).
10 That was Ben Brown. See Notice to Close File, U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV. (Mar. 24, 2017), available at https://www.justice.gov/crt/case- document/benjamin-brown-notice-close-file; see also Jackson State Univ., Center for University-Based Development, The Life of Benjamin Brown, 50 Years Later, W. JACKSON (May 11, 2017).
11 That was Phillip Gibbs. See James-Terry & Warren, supra.
12 That was Amadou Diallo. See Police fired 41 shots when they killed Amadou Diallo. His mom hopes today's protests will bring change., CBS NEWS (June 9, 2020).
13 That was Botham Jean. See Bill Hutchinson, Death of an innocent man: Timeline of wrong-apartment murder trial of Amber Guyger, ABC NEWS (Oct. 2, 2019).
14 That was Breonna Taylor. See Amina Elahi, 'Sleeping While Black': Louisville Police Kill Unarmed Black Woman, NPR (May 13, 2020).
15 That was Rayshard Brooks. See Jacob Sullum, Was the Shooting of Rayshard Brooks 'Lawful but Awful'?, REASON (June 15, 2020).
10 That was Ben Brown. See Notice to Close File, U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV. (Mar. 24, 2017), available at https://www.justice.gov/crt/case- document/benjamin-brown-notice-close-file; see also Jackson State Univ., Center for University-Based Development, The Life of Benjamin Brown, 50 Years Later, W. JACKSON (May 11, 2017).
11 That was Phillip Gibbs. See James-Terry & Warren, supra.
12 That was Amadou Diallo. See Police fired 41 shots when they killed Amadou Diallo. His mom hopes today's protests will bring change., CBS NEWS (June 9, 2020).
13 That was Botham Jean. See Bill Hutchinson, Death of an innocent man: Timeline of wrong-apartment murder trial of Amber Guyger, ABC NEWS (Oct. 2, 2019).
14 That was Breonna Taylor. See Amina Elahi, 'Sleeping While Black': Louisville Police Kill Unarmed Black Woman, NPR (May 13, 2020).
15 That was Rayshard Brooks. See Jacob Sullum, Was the Shooting of Rayshard Brooks 'Lawful but Awful'?, REASON (June 15, 2020).
16 That was Sandra Bland. See Ben Mathis-Lilley & Elliott Hannon, A Black Woman Named Sandra Bland Got Pulled Over in Texas and Died in Jail Three Days Later. Why?, SLATE (July 16, 2015).
17 That was Walter Scott. See Michael E. Miller et al., How a cellphone video led to murder charges against a cop in North Charleston, S.C., WASH. POST (Apr. 8, 2015).
18 That was Hannah Fizer. See Luke Nozicka, ‘Where’s the gun?’: Family of Sedalia woman killed by deputy skeptical of narrative, KANSAS CITY STAR (June 15, 2020).
17 That was Walter Scott. See Michael E. Miller et al., How a cellphone video led to murder charges against a cop in North Charleston, S.C., WASH. POST (Apr. 8, 2015).
18 That was Hannah Fizer. See Luke Nozicka, ‘Where’s the gun?’: Family of Sedalia woman killed by deputy skeptical of narrative, KANSAS CITY STAR (June 15, 2020).
19 That was Ace Perry. See Jodi Leese Glusco, Run-in with Sampson deputy leaves driver feeling unsafe, WRAL (Feb. 14, 2020).
____________________
Clarence Jamison, driving a Mercedes convertible eastbound through Mississippi, was stopped by Officer Nick McClendon, and held beside the highway for nearly two hours.
The issue Judge Reeves illuminates in his 72-page order is that current law gives him no option to granting Qualified Immunity to Officer McClendon, not because Officer McClendon exercised good faith law enforcement but because the claim is for all practical purposes prejudged.
Judge Reeves narrates the the one-hour-50-minute traffic stop of Mr. Jamison from the record. He then rewinds to trace the relevant law from its post-Civil-War origins to the present day.
It’s not a pretty picture of Lady Justice.
Judge Reeves, writing for an audience of nine on the US Supreme Court, frames the issue as clearly as anyone I’ve read: If we mean to extend equal justice to Black Americans, Indigenous Americans — to all people of color in the US — the path necessarily passes through an unwinding of the perversion of justice embodied in how the doctrine of Qualified Immunity has come to shield wrongdoers from the consequences of doing wrong.
I’m persuaded there is nothing about this call for renewed justice that in any way targets honest cops, honest attorneys, and honest judges.
In fact, I’m convinced that setting all this right can and must remove the cloud of misgivings and fear that is generated by bad actors, but overshadows honest officers of the court as well, through no fault of their own.
Picking up with Judge Reeves at page 30:
____________________
A review of our qualified immunity precedent makes clear that the Court has dispensed with any pretense of balancing competing values. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog;117 prison guards who forced a prisoner to sleep in cells “covered in feces” for days;118 police officers who stole over $225,000 worth of property;119 a deputy who body-slammed a woman after she simply “ignored [the deputy’s] command and walked away”;120 an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping;121 an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”;122 and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.123
If Section 1983 was created to make the courts “guardians of the people’s federal rights,’” what kind of guardians have the courts become? 124 One only has to look at the evolution of the doctrine to answer that question.
Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”
This “clearly established” requirement is not in the Constitution or a federal statute. The Supreme Court came up with it in 1982.125 In 1986, the Court then “evolved” the qualified immunity defense to spread its blessings “to all but the plainly incompetent or those who knowingly violate the law.”126 It further ratcheted up the standard in 2011, when it added the words “beyond debate.”127 In other words, “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law.”128 An officer cannot be held liable unless every reasonable officer would understand that what he is doing violates the law.129 It does not matter, as the Fifth Circuit has explained, “that we are morally outraged, or the fact that our collective conscience is shocked by the alleged conduct . . . [because it] does not mean necessarily that the officials should have realized that [the conduct] violated a constitutional right.”130 Even evidence that the officer acted in bad faith is now considered irrelevant.131
116 Harlow v. Fitzgerald, 457 U.S. 800, 800 (1982).
117 Corbitt v. Vickers, 929 F.3d 1304, 1323 (11th Cir. 2019), cert. denied, No.
19-679, 2020 WL 3146693 (U.S. June 15, 2020).
118 Taylor v. Stevens, 946 F.3d 211, 220 (5th Cir. 2019).
119 Jessop v. City of Fresno, 936 F.3d 937, 942 (9th Cir. 2019), cert. denied No. 19-1021, 2020 WL 2515813 (U.S. May 18, 2020).
120 Kelsay v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019), cert. denied, No. 19-682, 2020 WL 2515455 (U.S. May 18, 2020).
121 Dukes v. Deaton, 852 F.3d 1035, 1039 (11th Cir. 2017).
122 Baxter v. Bracey, 751 F. App’x 869, 872 (6th Cir. 2018), cert. denied, 140 S. Ct. 1862 (2020).
123 Willingham v. Loughnan, 261 F.3d 1178, 1181 (11th Cir. 2001), cert. granted, judgment vacated, 537 U.S. 801 (2002).
124 Haywood, 556 U.S. at 735 (citation omitted).
125 See Harlow, 457 U.S. at 818; see also William Baude, Is Qualified Immunity Unlawful?, 106 CAL. L. REV. 45, 81 (2018). Previously, the Court had used “clearly established” as an explanatory phrase to better understand good faith. See, e.g., Wood v. Strickland, 420 U.S. 308, 322 (1975) (finding compensatory damages “appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.”).
126 Malley, 475 U.S. at 341; see also Pamela S. Karlan, Foreword: Democracy and Disdain, 126 HARV. L. REV. 1, 61 (2012). Malley was also the first time “objectively unreasonable” appeared in a Supreme Court qualified immunity decision.
127 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted) (emphasis added).
128 McCoy v. Alamu, 950 F.3d 226, 233 (5th Cir. 2020) (citation omitted). That leads us to another rabbit hole. A district court opinion doesn’t clearly establish the law in a jurisdiction. Id. at 233 n.6 (citation omitted). Nor does a circuit court opinion, if the judges designate it as “unpublished.” Id.Only published circuit court decisions count. See id. Even then, the Supreme Court has “expressed uncertainty” about whether courts of appeals may ever deem constitutional law clearly established. Cole, 935 F.3d at 460 n.4 (Jones, J., dissenting) (collecting cases).
129 al-Kidd, 563 U.S. at 741. As Professor John Jeffries explains, “[t]he narrower the category of cases that count, the harder it is to find a clearly established right.” John C. Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 859 (2010) [hereinafter What's Wrong with Qualified Immunity?]. This restrictive approach bulks up qualified immunity and makes its protections difficult to penetrate. When combining the narrow view of relevant precedent to the demand for “extreme factual specificity in the guidance those precedents must provide, the search for ‘clearly established’ law becomes increasingly unlikely to succeed, and ‘qualified’ immunity becomes nearly absolute.” Id.
130 Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (quotations and citation omitted).
131 See Mullenix v. Luna, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting) (“an officer’s actual intentions are irrelevant to the Fourth Amendment’s ‘objectively reasonable’ inquiry”) (citing Graham v. Connor, 490 U.S. 396, 397 (1989)).
Again, I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society. Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of “separate but equal,” so too should it eliminate the doctrine of qualified immunity.
Earlier this year, the Court explained something true about wearing the robe:
"Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right."288
Let us waste no time in righting this wrong.
288 Ramos, 140 S. Ct. at 1408.
If Section 1983 was created to make the courts “guardians of the people’s federal rights,’” what kind of guardians have the courts become? 124 One only has to look at the evolution of the doctrine to answer that question.
Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”
This “clearly established” requirement is not in the Constitution or a federal statute. The Supreme Court came up with it in 1982.125 In 1986, the Court then “evolved” the qualified immunity defense to spread its blessings “to all but the plainly incompetent or those who knowingly violate the law.”126 It further ratcheted up the standard in 2011, when it added the words “beyond debate.”127 In other words, “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law.”128 An officer cannot be held liable unless every reasonable officer would understand that what he is doing violates the law.129 It does not matter, as the Fifth Circuit has explained, “that we are morally outraged, or the fact that our collective conscience is shocked by the alleged conduct . . . [because it] does not mean necessarily that the officials should have realized that [the conduct] violated a constitutional right.”130 Even evidence that the officer acted in bad faith is now considered irrelevant.131
____________________
116 Harlow v. Fitzgerald, 457 U.S. 800, 800 (1982).
117 Corbitt v. Vickers, 929 F.3d 1304, 1323 (11th Cir. 2019), cert. denied, No.
19-679, 2020 WL 3146693 (U.S. June 15, 2020).
118 Taylor v. Stevens, 946 F.3d 211, 220 (5th Cir. 2019).
119 Jessop v. City of Fresno, 936 F.3d 937, 942 (9th Cir. 2019), cert. denied No. 19-1021, 2020 WL 2515813 (U.S. May 18, 2020).
120 Kelsay v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019), cert. denied, No. 19-682, 2020 WL 2515455 (U.S. May 18, 2020).
121 Dukes v. Deaton, 852 F.3d 1035, 1039 (11th Cir. 2017).
122 Baxter v. Bracey, 751 F. App’x 869, 872 (6th Cir. 2018), cert. denied, 140 S. Ct. 1862 (2020).
123 Willingham v. Loughnan, 261 F.3d 1178, 1181 (11th Cir. 2001), cert. granted, judgment vacated, 537 U.S. 801 (2002).
124 Haywood, 556 U.S. at 735 (citation omitted).
125 See Harlow, 457 U.S. at 818; see also William Baude, Is Qualified Immunity Unlawful?, 106 CAL. L. REV. 45, 81 (2018). Previously, the Court had used “clearly established” as an explanatory phrase to better understand good faith. See, e.g., Wood v. Strickland, 420 U.S. 308, 322 (1975) (finding compensatory damages “appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.”).
126 Malley, 475 U.S. at 341; see also Pamela S. Karlan, Foreword: Democracy and Disdain, 126 HARV. L. REV. 1, 61 (2012). Malley was also the first time “objectively unreasonable” appeared in a Supreme Court qualified immunity decision.
127 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted) (emphasis added).
128 McCoy v. Alamu, 950 F.3d 226, 233 (5th Cir. 2020) (citation omitted). That leads us to another rabbit hole. A district court opinion doesn’t clearly establish the law in a jurisdiction. Id. at 233 n.6 (citation omitted). Nor does a circuit court opinion, if the judges designate it as “unpublished.” Id.Only published circuit court decisions count. See id. Even then, the Supreme Court has “expressed uncertainty” about whether courts of appeals may ever deem constitutional law clearly established. Cole, 935 F.3d at 460 n.4 (Jones, J., dissenting) (collecting cases).
129 al-Kidd, 563 U.S. at 741. As Professor John Jeffries explains, “[t]he narrower the category of cases that count, the harder it is to find a clearly established right.” John C. Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 859 (2010) [hereinafter What's Wrong with Qualified Immunity?]. This restrictive approach bulks up qualified immunity and makes its protections difficult to penetrate. When combining the narrow view of relevant precedent to the demand for “extreme factual specificity in the guidance those precedents must provide, the search for ‘clearly established’ law becomes increasingly unlikely to succeed, and ‘qualified’ immunity becomes nearly absolute.” Id.
130 Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994) (quotations and citation omitted).
131 See Mullenix v. Luna, 136 S. Ct. 305, 316 (2015) (Sotomayor, J., dissenting) (“an officer’s actual intentions are irrelevant to the Fourth Amendment’s ‘objectively reasonable’ inquiry”) (citing Graham v. Connor, 490 U.S. 396, 397 (1989)).
____________________
"And there is more," Judge Reeves writes, before continuing for another 30-odd pages before concluding:
____________________
Again, I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society. Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of “separate but equal,” so too should it eliminate the doctrine of qualified immunity.
Earlier this year, the Court explained something true about wearing the robe:
"Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right."288
Let us waste no time in righting this wrong.
s/ CARLTON W. REEVES
United States District Judge
____________________
288 Ramos, 140 S. Ct. at 1408.
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