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."

NEXT: These Judges Defend Qualified Immunity as ‘a Deferential Rule’ That Protects the Police

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  1. Those officers were just unlucky — not enough conservatives on their Fourth Circuit panel.

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    2. Wrong as usual.

  2. I’ll bet their union is outraged.

    1. Ten bucks says the union will pay for their legal defense.

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  3. Terrible, terrible ruling. The chances of there being a case where five cops shoot a homeless guy lying face-down are astronomically low. And there’s no way they could have known it was the wrong thing do do because I seriously doubt there is a department policy that says five cops can’t shoot a homeless guy who is lying face-down on the ground. All I can do is shake my head and hope that Trump and his fellow Republicans can step in and correct this grave injustice against those brave officers who could have easily been killed by that fixed blade.

    1. C- This is sad. You’re broken.

    2. In 1971 I witnessed cops beating a young black man, much worse than the Rodney King incident. At least 13 cops stood in a semi circle and watched as one of then proceeded to punch the hell out of the kid. The kid collapsed, the cop started kicking him in the face and stomach. The kid crawled into a doorway, trying fend of the blows. Eventually, some of the cops dragged the motioneless kid and threw him in the car. After about fifteen minutes, they dragged him out and let him stumble away. Apparently they had nothing to charge him with. That night I understood why blacks called police pigs. That night I lost all respect for the police.
      When you have a sadistic idiot working with you, you want him fired. The probelm is the supposedly good cops no only will watch a beating and do nothing they will even lie in court to protected the sadistic idiot in their midst and so will the police union. Here are some statistics. On average in the US 50 to 60 police officers are killed on duty, not counting vehicle accidents or heart attacks. On average over 1000 Americans are killed by police each year. In England only three of their citizens got killed by police and one of them was a terrorist. More farmers die in farm accidents to deliver you food than police. Being a farmer is a more dangerous job than being a cop. When a farmer dies, there are no big parades for him even though he is more valuable than a policeman as he brings you life sustaining food. Yes we need a police agency, but we don’t need crazy sadistic trigger happy idiots with guns who hide behind a badge. You defending a bunch of armed cowardswho killed a man by shooting him in the back while he is down shows you missed your time, Hitler’s concentration camps could have used your talents.

    3. Hmmm….strange, I keep noticing a pattern in all these cases. It has to do with the political party in charge of the cities. Can you think of what that pattern might be? I’ll give you a hint, all cities are run by the same political party beginning with the letter D. Can you name that party?

      1. This crap doesn’t happen only in cities. It happens everywhere in this country.

  4. no line will not be crossed to protect and sever.

  5. Modern American police are the combination of the worst traits of the Keystone Cops and the NKVD.

    1. Nope.

      The Keystone cops and NKVD are modeled after American police. 🙂

  6. I’m no lawyer, but can’t this reversal also be appealed? I’ll believe it when I see those pigs in orange jumpers.

    1. Section 1983 only introduces civil liability. They can be sued into bankruptcy, but they’re not going to jail unless the DA can be persuaded to prosecute them, which pretty much never happens without literal angry mobs in the streets over the issue.

  7. Hello Mr. Binion, I hope you are well. I’m sure as the author of this piece (and also assistant editor at Reason) you may not have final say on the stock photo used in conjunction with your article. Do note that:

    1. The safety is engaged on the 1911 style pistol in the photo.
    2. That pistol is single action only and the hammer is down. So even in the event the safety was disengaged it still wouldn’t fire.
    3. Police are trained to fire pistols with both hands in almost every situation.
    4. There’d be no reason to present an inoperative pistol one handed with your finger inside the trigger guard. Even a brandishing fool would know better.
    5. Almost no departments issue 1911’s anymore. The unfortunate homeless man was most likely shot 22 times with double-action, striker-fired, polymer-framed pistols.

    If your intent was to have the stock photo give a visual representation of unjust police use of force in 2020… then it falls far short. While this may seem like semantics and this photo was likely chosen by an intern or social media staff… I think readers of a decidedly pro 2nd amendment site like reason expect a bit more.

    1. 6. You don’t carry a 1911 with the hammer down and a round chambered. You carry it “cocked and locked.” Unless you’re an Israeli commando in which case you rack it as you remove it from the holster.

    2. Did that photo trigger you?

      I mean, there are certainly tons of reasons to criticize Binion on his writing but if you’re reduced to criticizing the choice of *stock photo* on the article – that’s pretty much tantamount to admitting that you can’t find anything wrong with the article itself.

      And, in the end, only the article matters. Not the photo accompanying it.

      1. I dunno, I really liked the photo. The pistol has been upgraded with the ambi safety, lightweight hammer, beavertail grip safety, but best of all is the Bomar-type rear sight. It would be a nice addition….

    3. No, the safety is off. You can’t apply the thumb safety on a 1911 if the hammer is down.

      1984 U.S. Army Small Arms Repairer, Military Occupational Specialty 45B

  8. Considering the WV case awhile back of the officer who refused to shoot and kill a man and was fired for it; I think these guys new how the law works.

  9. So some other cops had shot a homeless man 22 times who was lying on the ground and were found liable? Or is there some flexibility in the “clearly established” requirement for qualified immunity?

  10. Jones’s estate consequently filed suit against those cops and the City of Martinsbur
    How can he be homeless if he has an estate?

    1. Presumably his relatives, but that just ignores the question of why someone with family is able to be homeless. There’s probably a mental illness aspect, but anyone who has family and isn’t a criminal, drug addict, or mentally ill should always be able to find at least a couch to crash on.

      1. There’s probably a mental illness aspect, but anyone who has family and isn’t a criminal, drug addict, or mentally ill should always be able to find at least a couch to crash on.

        That’s sort of the point – the persistently homeless are criminals, drug addicts, and/or mentally ill. So they don’t have that couch to crash on.

  11. Law enforcement is taught to only see citizens as either compliant sheep who, “stay home, lock their doors and cry” or as wolves. (This is taught by the most popular police trainer in America – Dave Grossman, in his training seminar called, [how sadley ironic is this?] “Killology.”) There is no middle ground. It is precisely this either/or mentality that leads to escalation, physical violence and death for Americans everywhere. Anyone asserting his or her rights is immediately seen as a “wolf” because he dared to question and dared to assert his rights. Beyond that, teaching police officers to see people as animals has a highly dangerous effect: It allows the police to dehumanize citizens and to see them as a different species…a species who only lives because the police state gives them permission to live one more day. The idea of making people mere animals allows for the suspension of human rights because citizens are no longer human and it allows for wanton destruction and total annihilation if needed because, much like the cockroach or unwanted rodent, doing away with such animals is doing the State a favor.

    1. Also, the “public” that they serve is “everyone else.” Any individual they come into contact with serves them, because they serve everyone else.

    2. Maybe step one of fixing policing is to put Dave Grossman out of business.

      1. I agree. It has been my futile crusade to make people aware of him. I think he is one of the most dangerous and deranged people alive. He tells the tens of thousands of cops he trains that if they shoot and kill someone they will have “the best sex of their lives.” He also says, “Both partners are very invested in some intense sex.” He also says that cops should, after shooting and killing someone, “Relax and enjoy it.” Demented. Sick. Disturbing. Twisted. Such is the state of law enforcement.

      2. When Dave Grossman brainwashes people to commit murder it’s “hero training”. When Charles Manson does it…

  12. Of course, all this actually accomplishes is saying a jury has to rubber-stamp their excessive use of force now.

  13. Sued? That’s the least of what should take place. Maybe first, however. Then, once all of their assets have been confiscated to compensate their victim’s family, tried for murder and sentenced to life without parole.

  14. Can you imagine that. Might we next be regaled with the judicial finding that 2 +2 still equal 4?

  15. Some prescient young men once said: “Murder is a crime, unless it is done by a policeman”. Ahead of their time.

  16. Wow, so, I guess all cops are KKK in disguise. Just like all libertarians are for free use of drugs, prostitution for anyone any time, abortion for any girl at any time.

    I guess libertarians are as bigoted as the evil police that they parade before us daily. Because we all know that all police only want dead blacks, or Hispanics, or whites, or whoever.

    We know that no one in the inner cities want police in their neighborhoods to protect them from the thugs who have little if any moral integrity toward those that they terrorize each and every day.

    I guess the libertarians can go into these war-torn neighborhoods and reason with the thugs and in so doing protect the elderly, the honest people, and the young who know how much the police help each day.

    Final rant point – many of these killer cop essays remind me of the anti-gun people who tell us how many people are killed by evil guns each day. They never, ever mention the thousands who are saved each day by the legal use of guns for self-defense, heck even the multiple times police use force in the proper manner to protect those around them and themselves.

  17. Were the officers in question fired or at least disciplined? If not, why not?

    1. ^
      QI has nothing to do with that primary aspect

  18. Silence Dogoode
    June.11.2020 at 6:58 pm

    My time is valuable so the next time you get triggered by a Reason anti-cop article I would appreciate you distilling your response down to yadda yadda good outweighs the bad yadda yadda unappreciated yadda yadda misunderstood. Thanks in advance.

    For many of us, a broken clock is right twice a day so best not rely on it to know what time it is. Yet, someone like you does not think about a clock because in your world the trains run on time.

  19. “decid[ing] whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground.”

    Right, the closest case they could find was SIX officers shooting a guy motionless on the ground only 21 times. So there was some doubt that the officers here could have possibly known they were wrong.

  20. Yah, but Jones was white so… His life apparently doesn’t matter.

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