In a recently published opinion, the Fourth Circuit held that even if the City could not be liable under a Monell theory, its police officers were not entitled to Qualified Immunity because a reasonable jury could find that the man in custody was both secured and incapacitated in the final moments before his death. With Judge Floyd writing for the panel, consisting of Chief Judge Gregory and Judge Thacker, the Fourth Circuit reversed the district court’s grant of summary judgment and allowed the family to proceed to a jury against the police officers.
Around midnight on March 13, 2013, Officer Paul Lehman, a police officer for Martinsburg, West Virginia, stopped Wayne Jones, a homeless black man who had been diagnosed with schizophrenia, for walking on the street. Lehman asked Jones for identification; Jones replied that he had none. Lehman then asked Jones if he had any weapons. “What’s a weapon?” Jones replied; Lehman told him “anything—guns, knives, clubs.” Jones responded that he had “something.”
Lehman immediately called for backup and told Jones to put his hands on the patrol car. As Jones tried to move away from Lehman, Lehman started shouting “Put your hands on the car.” Jones responded “What are you trying to do?”; “What do you want?”; and “What did I do to you?” Lehman never answered the questions, but instead discharged his taser into Jones just as Officer Daniel North arrived. North tased Jones as well. Jones “hit” Lehman in the face, ran down the street, and cornered himself in a stoop entranceway to a bookstore. North caught up and struck Jones on the arm. Officer William Staub arrived to the scene.
Jones put his hands in the air, and when two additional officers grabbed him, they wrestled him down the stairs. Staub put Jones in a chokehold so tight that Jones made a “loud choking or gurgling sound.” When Lehman arrived, along with Officers Eric Neely and Erik Herb, bringing the total to five officers, Jones was face down, moving in a “swimmer’s kick-like motion.” One officer called Jones “a motherf*cker,” and another officer “kick[ed] Jones as he lay on the ground.” Neely tased Jones for a third time, and North applied “a drive stun without any probes.”
While Jones was being choked and tased, Staub felt “a sharp poke in [his] side.” Staub reported that he saw Jones holding a knife in his right hand. Staub shouted “He’s got a knife!” All five officers immediately withdrew approximately five feet away, drew their firearms, and ordered Jones to drop the knife. Seconds later, in a semi-circle around Jones’s motionless body, the five officers fired 22 rounds into Jones, killing him where he lay on the sidewalk by the bookstore. Afterwards, the officers stated that “they were going to ‘have to gather some f**king story.’”
Single Incident Not Enough for City Liability
In order for Jones’s estate to be successful with its Monell claim against the City, the failure to train its police must amount to deliberate indifference to the rights of persons with whom the police come into contact. The Fourth Circuit noted that “a single incident is almost never enough to warrant municipal liability.” With this in mind, the Court analyzed the Canton exception, which could trigger municipal liability for a single violation of established rights if the municipality had failed to train its employees to handle recurring situations presenting an obvious potential for such a violation.
The City’s aggression policy instructed officers to match their aggression to the suspect’s aggression and required that incidents of physical force be necessary, objectively reasonable, and proportionate. The Fourth Circuit concluded that even though a reasonable jury could have found that the officers’ response violated the aggression policy, Jones’s estate, with this single incident, was unable to show that any deficiency in training reflected a deliberate or conscious choice by the City.
Officers Not Entitled to Qualified Immunity
Qualified Immunity shields police officers from liability for constitutional violations when, based on “clearly established law,” they reasonably believed that their actions were lawful. The Fourth Circuit decided in a separate appeal that the officers violated Jones’s Fourth Amendment right to be free from excessive force, so this appeal turned on whether Jones’s right was clearly established on March 13, 2013. The Court’s precedent made clear that if officers shoot a secured or incapacitated person, then they are not entitled to Qualified Immunity.
The Fourth Circuit began its analysis by noting that a reasonable jury viewing the videos could find that Jones was secured when pinned down by five officers. The Court further concluded that even an armed suspect like Jones could be deemed secured given “the relatively inaccessible location of the knife, . . . the physical inability to wield it given his position on the ground, the number of officers on Jones, and Jones’s physical state [of being motionless on the ground.]”
The Fourth Circuit next addressed that even if Jones was not deemed to be secured by the five officers, a jury could still “reasonably find that he was incapacitated by the time of the shooting. Jones had been tased four times, hit in the brachia plexus, kicked, and placed in a choke hold, at which point gurgling [could] be heard in the video.” The Fourth Circuit concluded that by “shooting an incapacitated, injured person who was not moving, and who was laying on his knife, the police officers crossed a ‘bright line’ and [could] be held liable.”
This case further shows how important an officer’s de-escalation training can be. Throughout the entire opinion, it was made clear that “Officer Lehman quickly escalated the encounter.” Talking to a potential suspect in a way that maintains their humanity, controls the situation, and keeps everyone calm is not only good policing (that allows for solid information gathering), but is also the best way to guarantee that all parties walk away alive.
Furthermore, municipalities need to make sure that they have implemented a reasonable aggression policy. Because the City had one here, it almost singlehandedly ensured that Jones’s estate was unable to meet the strict Monell standard.
Government entities should also ensure that any singular incidents of deficient training do not reflect their policies or procedures. If a city has notice, the Fourth Circuit makes it clear that they may be subject to liability for a single incident of bad policing.
The Fourth Circuit concluded that this was a case where what “we [saw was] a scared man who [was] confused about what he did wrong, and an officer that [did] nothing to alleviate that man’s fears.” The officers were therefore not protected by Qualified Immunity, and the question is now left for the jury to determine whether Jones was secured, incapacitated, or both.
In an unrelated matter, yesterday, the Supreme Court of the United States refused to reexamine the doctrine of Qualified Immunity. In an unsigned Order, the Court declined to hear cases seeking reexamination of the doctrine, with Justices Sotomayor and Thomas dissenting, saying that the doctrine appears to stray from the statutory text. It takes the vote of four Justices to review a case. So for now, the doctrine remains, but perhaps becoming more limited every day.
This publication was prepared with the assistance of one of our Summer Clerks, Le Ho. Le is a law student at the University of North Carolina School of Law and will be graduating in May 2022.