Qualified Immunity

Cops Who Shot Homeless Man 22 Times While He Lay on the Ground Are Not Protected by Qualified Immunity, Appeals Court Rules

It's a perverse kind of progress, but it's progress all the same.


Five police officers who shot a homeless schizophrenic man 22 times after stopping him for walking in the street instead of on the sidewalk are not protected by qualified immunity, a federal appeals court ruled Tuesday. The officers can be sued in connection with the incident, cutting against a legal doctrine that often allows public officials to avoid liability for misconduct if the actions in question have not been explicitly addressed by a court precedent.

On March 13, 2013, Wayne Jones was walking in the street near downtown Martinsburg, West Virginia, when Officer Paul Lehman of the Martinsburg Police Department (MPD) began following him in his patrol car. After tailing him for approximately one minute, Lehman parked the vehicle and asked Lehman why he was walking in the street, a violation of state and city law. 

Lehman next requested that Jones provide 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" qualified. Jones responded that he had "something." 

Lehman then shouted at Jones to put his hands on the police car, to which Jones asked "What are you trying to do?"; "What do you want?"; and "What did I do to you?" Lehman declined to answer, instead opting to tase Jones. MPD Officer Daniel North, who had been called in for backup, arrived at the scene and tased Jones as well.

Jones then began running down the street. North eventually caught Jones and punched him "in the brachial plexus," or the side of the neck. Jones ended up cornering himself on a nearby stoop, where North was joined by Officer William Staub, who put Jones in a chokehold after managing, with North, to drag him off the ledge. Staub said he employed the tactic "just to kind of stop [Jones] from resisting." A "loud choking or gurgling sound" can be heard on Staub's audio recorder, according to the suit.

Subsequently, two more officers—Officers Eric Neely and Erik Herb—arrived at the scene. Neely tased Jones for a third time, and North proceeded to apply "a drive stun without any probes." Another officer can reportedly be seen on video kicking Jones. 

After putting Jones in another chokehold, Staub claims that he felt "a sharp poke in his side" and saw Jones wielding "a fixed blade knife in his hand." All five officers moved back, forming a semi-circle around Jones, who—despite testimony from the officers that their efforts "had no visible effect"—remained motionless on the ground. By Lehman's own admission, Jones "did not make any overt acts with the knife towards the officers."

The group of police officers killed Jones anyway, firing 22 bullets into him as he lay facedown.

Jones's estate consequently filed suit against those cops and the City of Martinsburg, alleging that the officers violated Jones' Fourth Amendment rights by using excessive force and his 14th Amendment rights by killing him; and that the City of Martinsburg is responsible for those unconstitutional acts by improperly training and inadequately disciplining their police department.

The United States District Court for the Northern District of West Virginia dismissed the suit and granted all five officers qualified immunity. But on Tuesday, the U.S. Court of Appeals for the 4th Circuit overturned that dismissal. Writing for the unanimous panel, Circuit Judge Henry Franklin Floyd summed up in plain terms the absurd question before the court: "decid[ing] whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground."

Such is the essence of qualified immunity, the legal doctrine that gives public servants license to infringe on your rights so long as their behavior isn't prohibited almost identically by existing case law. In other words, the cops in question sought protection for murdering Jones by claiming that the judiciary had not concretely determined that killing someone who was lying still on the ground was a violation of that person's rights. That the lower court granted the officers' request further elucidates the inane nature of the doctrine.

Sadly, federal courts grant qualified immunity in cases like these with alarming regularity. In Howse v. Hodous (2020), the U.S. Court of Appeals for the 6th Circuit gave qualified immunity to two officers who allegedly assaulted and arrested a man on bogus charges for the crime of standing outside of his own house. There was also the sheriff's deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at a non-threatening dog; the cop in Los Angeles who shot a 15-year-old boy on his way to school because the child's friend had a plastic gun; and two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant.

The above officers and many others have received qualified immunity because their actions had not been expressly ruled unconstitutional by the courts, leaving the people they hurt with no recourse to sue for medical bills or lost assets. These cases are not exceptions. Courts grant qualified immunity to police officers in over half the cases in which police attorneys invoke the doctrine. 

In the case filed by Jones' estate, there are several reasons to withhold qualified immunity. It had already been "clearly established that law enforcement may not constitutionally use force against a secured, incapacitated person—let alone use deadly force against that person," Judge Floyd notes in his ruling, citing Kane v. Hargis (1993) and Brockington v. Boykins (2011). "Because a reasonable jury could find that Jones was secured, incapacitated, or both, we need not reach whether the officers' actions were so 'flagrantly unlawful' as to refute any claim of qualified immunity."

But Floyd also highlights that the officers appear from an audio recording to have known they should not have shot Jones. After firing the 22 fatal bullets, the officers can be heard agreeing to exaggerate the threat they faced in order to avoid being held legally liable for their actions. "When searching Jones's lifeless body, officers found a small fixed blade knife tucked into his right sleeve," the judge writes. "After being told that state police were coming to investigate, officers can be heard saying that the incident would be a 'cluster' and that they were going to 'have to gather some f**king story.'"

That might explain, the judge writes, the inconsistency in the officers' stories. "Jones was armed with a knife, which was tucked into his sleeve, and yet which he somehow used to stab an officer," Floyd says. "Given the relatively inaccessible location of the knife, and the physical inability to wield it given his position on the ground, the number of officers on Jones, and Jones's physical state by this time, it would be particularly reasonable to find that Jones was secured while still armed."

Judge Floyd further emphasizes that the escalation and the corresponding use of force was harshly disproportionate to the crime for which Jones was stopped. He "was not an armed felon on the run, nor a fleeing suspect luring officers into a high-speed car chase," Floyd writes. "Jones was walking in the road next to the sidewalk, away from the dark shadows and blind corners of buildings at night. He was without housing and had a knife on his person. As a pedestrian, he should have been on the sidewalk, but Officer Lehman never told him that."

Judge Floyd further notes that Lehman "quickly escalated the encounter," failing to consider other potential factors—like Jones' mental state—that might have influenced his responses. "What we see is a scared man who is confused about what he did wrong, and an officer that does nothing to alleviate that man's fears," the judge writes. "That is the broader context in which five officers took Jones's life."

The death of George Floyd, an unarmed black man who was killed by former Minneapolis police officer Derek Chauvin, has propelled qualified immunity to the forefront of American political debate and energized opposition to the doctrine, with Rep. Justin Amash (L–Mich.) introducing a bill that would eliminate it nationwide. 

"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," Judge Floyd wrote. "This has to stop."