Qualified Immunity

Cops Who Beat and Killed an Innocent Man Are Not Entitled to Qualified Immunity, Appeals Court Rules. But the Cops Who Watched Are.

The legal doctrine provides rogue government agents cushy protections not available to the little guy.


Two officers who beat and ultimately killed a schizophrenic man—who had been subdued and who had not committed a crime—are not entitled to qualified immunity and can thus be sued over the incident, the U.S. Court of Appeals for the 5th Circuit ruled last week. 

The decision affirms the U.S. District Court for the Eastern District of Louisiana's ruling, which held that the pair violated Kendole Joseph's Fourth Amendment rights and used excessive force when they delivered 26 blunt-force blows to his face, back, chest, extremities, scrotum, and testes, resulting in his death two days later. 

But while the 5th Circuit agreed that Joseph's rights were also violated by a group of bystander officers—who watched the beating, with some participating in ways stopping short of blunt-force—they granted them qualified immunity. The legal doctrine shields public officials from accountability when their misconduct and the associated circumstances have not been outlined almost exactly in a preexisting court decision, even in cases where the court agrees the plaintiff's constitutional rights were violated.

On February 7, 2017, the assistant principal at Gretna Middle School told Officers Thomas Thompson and Arthur Morvant, who work at the school, that a "strange guy," who was "nervous and shaky" and "not walking straight," was loitering outside the gate. After the two approached Joseph, they reported that he fled the area, yelling, "Help me from the police!" Morvant, who said that it was clear Joseph may be "emotionally disturbed," alerted nearby officers that a "suspicious person" was on the move.

Officers Eddie Martin and Brandon Leduff heard Morvant's radio call and noticed Joseph shortly thereafter. They commanded that he come toward them; he instead ducked into a convenience store. The officers followed. By Martin's own admission, it did not appear that Joseph had a weapon on his person, nor did Joseph make any attempt to reach for one. Upon entering the store, they heard Joseph shouting, "Help me, help me, somebody call the cops" and "They're trying to kill me." Martin pointed his gun at Joseph and ordered him to get on the ground, at which point Joseph jumped over the convenience store counter and assumed the fetal position, face-down.

Martin then put most of his 300-pound body weight on Joseph and tased him for 11 seconds, demanding he put his hands behind his back. How he could have complied while Martin was on top of him remains unclear. Nine other cops—as well as Thompson and Morvant—would go on to join Martin and Leduff in the convenience store, all to apprehend a man who did not pose a threat and who was not suspected of committing a crime.

Over the next several minutes, Martin beat Joseph with a baton, punched him in the face several times, and tased him again. Officer Duston Costa, one of the additional cops on the scene, kicked Joseph 12 or 13 times and punched him in the head repeatedly. The remaining officers, who had been observing and offering varying levels of assistance, helped handcuff Joseph and place him in leg shackles before carrying him to a patrol car.

During the struggle, Joseph made a variety of pleas. He asked for someone to call "the real police." He assured the group that he "[did] not have a weapon." He called out for his mother.

Joseph, who had been experiencing a psychotic episode related to his schizophrenia, later died at a nearby hospital from his injuries.

"Though Joseph was not suspected of committing any crime, was in the fetal position, and was not actively resisting," writes Circuit Judge Don R. Willett, "Officers Martin and Costa inflicted twenty-six blunt-force injuries on Joseph and tased him twice, all while he pleaded for help and reiterated that he was not armed."

But as Willett reminds us, a clear constitutional infringement, as outlined here, is not sufficient to defeat a qualified immunity defense. Plaintiffs must show that the violation was "clearly established" in case law prior to the alleged offense—as if police officers are reviewing court precedents before going to work. The one exception: Defendants may lose qualified immunity protections absent relevant case law if their misconduct was so obviously unconstitutional that any "reasonable officer" would know. It was under the latter pretense that the district court denied Martin and Costa qualified immunity, though the 5th Circuit rejected that.

"The standard for obviousness is sky high," Willett notes, "and this case does not meet it." He instead highlights three court precedents—Newman v. Guedry (2012), Ramirez v. Martinez (2013), and Cooper v. Brown (2016)—which should have alerted Martin and Costa to the fact that beating a subdued man to his death violates the Fourth Amendment. 

The cohort of bystander cops received qualified immunity after the plaintiffs failed to furnish a relevant court precedent. "We make no comment on whether Plaintiffs could have done so—the record in this case simply shows that they have not done so," says Willett. "The officers don't identify cases or make arguments either, but that is not their burden." That claim, he contends, likewise fails the obviousness test.

In combing through qualified immunity decisions, it would appear that the obviousness standard is indeed "sky high"—at least, as interpreted by the courts. Though there are several applicable examples, one is particularly instructive: Two cops received qualified immunity after allegedly stealing $225,000 while executing a search warrant. They "did not have clear notice that it violated the Fourth Amendment," wrote judges for the U.S. Court of Appeals for the 9th Circuit, as if stealing is not an obvious constitutional infringement. (Their opinion acknowledged that the officers "ought to have recognized that the alleged theft was morally wrong.")

According to Willett, the rigorousness of that standard is demanded by the Supreme Court, which, he says, "strictly enforces the requirement to identify an analogous case and explain the analogy." But it was the Supreme Court that, just three weeks prior, invoked the standard for obviousness when they reversed a lower court ruling granting qualified immunity. 

The decision they struck down came from the 5th Circuit.

In that case, several prison guards originally received qualified immunity after locking a naked inmate in two filthy cells—one covered in "massive amounts" of human feces and the other with sewage on the floor. While the court conceded that the guards violated the man's Eighth Amendment rights, he was not afforded the right to sue because the amount of time he spent in those cells—six days—was not spelled out somewhere in previous case law.

The Supreme Court fundamentally rejected that argument in a 7-1 ruling. "No reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house [the inmate] in such deplorably unsanitary conditions for such an extended period of time," they wrote in an unsigned opinion.

Though the particulars of the two cases are obviously different, the legal reasoning needn't be. Both cases epitomize the perverted logic of qualified immunity, a doctrine that provides rogue government agents cushy protections not available to the little guy. If housing an inmate in deplorably unsanitary conditions isn't obviously a constitutional violation, and if beating a subdued man to his death isn't obviously a constitutional violation, then what is obvious?

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  1. Willet might have ended up on the Supreme Court if Trump had another 4 years. Fuck you Billy.

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    2. That may be – and this case has no bearing on his fitness to do so. Willet is a subordinate court judge. He does not have the power to change precedents set by the Supreme Court. That fact that he correctly cites the relevant precedents tells you nothing about whether or not he would reverse them if he were empowered to do so.

      SCOTUS created this problem and then Congress entrenched it. Only SCOTUS (or maybe Congress) can fix it.

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  2. The fact that the entire system is built to protect cops who do these things makes me doubt that they are “rogue officers.” It’s more like “officers who got caught.”

    1. 99% of cops are really making the other 1% look bad.

      1. The solution is more laws! More government! It’s the “libertarian” way.

        1. I hope that was sarcasm, because if not you’re terminally ignorant of what libertarian solutions look like.

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        2. I could get on board with more laws that bind agents of state.

          1. Who’s going to enforce them? The state?

            Since every interaction with agents of the state can be deadly, best to minimize those interactions.

            Better solution is to purge legislation that criminalize activity that doesn’t harm the life, liberty or property of other people.

            As it is, asking the police for help can be a really bad idea because, among other reasons, they’d rather bust you for a victimless crime than investigate the crime committed against you.

            This way I believe police would become more helpful than antagonistic.

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    3. Look at the bright side. If Nixon, Ford or Bush Bush were Prez, they’d’ve paid them a bounty, shaken their hands, pinned Hero First Reponder™ medals on their chests and jumped up and down hollerin’ kill! kill! kill!

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  4. Prosecutors should appeal the dismissals all the way to the Supreme Court. This Court is ready to substantially pare back it’s previous qualified immunity rulings on all fronts, especially the “obviousness” front. This case is even better than the stolen $225,000 case.

    1. These are civil suits. Plaintiffs may be able to appeal but no prosecutors are involved.

      Since many of these actions by “rogue” police are patently criminal, the absence of prosecutions is notable. Unfortunately, it’s also completely predictable given that prosecutors are dependent on police to do their jobs.

      1. Indeed. And what judge is going to allow his own budget to get sued against? It’s preposterous to think the judges would allow lawsuits to cause serious problems in the community if al the funds could get eaten up by lawsuits of police malfeasance. They’re all locked into this way of life, nothings even on the horizon to stop it, and no one in gov has any reason to stop it.

  5. The beatings will continue until morale improves.

    1. The murders will continue until dissent decreases.

  6. As though in an orgy of fists, feet and batons police are going to mentally comb through precedent to see if case law tells them this is wrong. This standard for Qualified Immunity is absurd on every level and the courts know it.

    1. Cops, prosecutors and judges are all on team government. Of course they’re going to protect one another, even if it rises to the level of absurdity. Why should they care and who can do anything about it?

  7. The video is quite remarkable. It’s like sows fighting over slop. The poor bastard stood no chance.

    1. As an ex security professional watching these, I just don’t get why cops continue to beat and pile on someone who is already subdued. And why a dozen of them are so eager to get a few kicks or punches in. What’s the point? Are they gonna brag about being the 11th guy to kick someone who’s down?

      Cowards and bullies. Anyone who wanted to get into the real shit has had ample opportunity for the past 19 years. The cops are the dregs who didn’t want a target that shoots back.

      1. Standard humans with personality disorders. They take those jobs because of their own insecurities. It must be exhilarating to beat the fuck out of people without consequence.

        Nevertheless, all humans, when put in a position of power, gravitate towards looking at the bulk of humanity as mindless trash, because that’s the most reasonable assessment of our species.

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  9. “who watched the beating, with some participating in ways stopping short of blunt-force”

    So, they weren’t just watching! Assholes!

  10. “…which should have alerted Martin and Costa to the fact that beating a subdued man to his death violates the Fourth Amendment. ”

    and here is the fundamental problem with qualified immunity….. why the fuck do you need court precedent to tell you that beating a subdued man to death is wrong? how can the judge admit the other cops also violated his rights, but let them go because he didn’t have a case history? qualified immunity was intended to prevent frivolous lawsuits, not ignore common sense.

    1. It’s honestly very frustrating to figure out what the better law would be. I get that every situation is different for cops. I get that. I understand that it is their job to insert themselves into unfamiliar situations with people who are not behaving the way society expects them to. I get it. The legal standard is “reasonable” and I don’t think that’s wrong. Police officers should be held to a standard of reasonable conduct as determined by what an average person would assume is reasonable. Qualified immunity is, in its most elemental form, not a bad thing. It’s there because the job inherently has a lot of ambiguity in it and cops who are making good faith attempts to preserve people’s rights and liberties shouldn’t be held liable when they step into a grey zone which is later clarified in court to show them as being across the line. The key point though is reasonableness and good faith. I don’t think the law, in that regard, is written poorly. It’s the interpretation of it that is maddening. How does a judge look at QI and at ten cops beating a man to death and say “There’s no way they could have known!”? There shouldn’t be any question that such acts are excessive. It’s so far over the line that the concept of “grey area”s has been left far behind and we are deep in the pitch black swamp of murder.

      tl;dr: the law is fine, it is the judges who are a problem.

  11. What’s obvious is that we the people had better start imposing serious physical consequences on those who commit these outrages, since the system won’t.

    1. One would have thought that would have happened already as corrective action in a natural response for survival and minimizing risk of tyranny.

      What needs to happen is that no judgments be paid to families, unless there is a conviction, so as not to corrupt the normal expectation for justice.

      Think about it. Do the families of murder victims, not at the hands of LE, often get any kind of monetary compensation when family members are murdered ? No. At best, the perpetrator is found guilty and sent to prison. This same common closure is denied to almost all other LE murder victims and instead the family is paid off at an often ridiculously excessive amount with no prison time.

      This is perverting justice as it is prevented from taking its normal course because of anti-accountability taxpayer insurance. The family or victims are denied their pound of flesh and are instead paid off with $ and a signed NDA to assuage their ire and desire for vengeance, just like any good corporation would do. This is something not afforded to most perpetrators of crimes.

      No beatings or prison mop handle in their ass for Them.

  12. If you run, it only triggers an attack.

    1. “Git some! Git some! Git some, yeah, yeah, yeah! Anyone who runs, is a VC. Anyone who stands still, is a well-disciplined VC!”

      1. Awesome! Barf Barf!

  13. I would hope that everyone in that town makes outcasts of the al those cops and their families for their actions. Shunning them everywhere and banishing them from all the local businesses. Don’t even see how these animals can even go to work and face the local citizens each day.

    1. Please is this the real Rod I know it’s me Rayas

  14. Amazon has censored Alex Berenson for revealing the scientific evidence about mask wearing’s impact (or lack thereof) on covid transmissions

    I’ve never bought anything from Amazon, and I urge others to join my boycott.

    1. They reversed the decision.

      We should all still boycott amazon so that there is some semblance of a competitive market next year.


      1. If Amazon is the cheapest then there’s no room for a competitor.

        If they are not then we need do nothing except let the profit motive work.

        1. You pretend we have a free market. We do not.

          Making things in China and shipping them here would not be cheaper, broadly speaking, if government regulations of workplace safety, pay, etc. were equal.

    2. Yeah, facebook censored a Triggernometry podcast merely discussing COVID-19 laughably claiming it “contained nudity”.

      But there’s nothing to see here.

  15. Why would the cops who stood by be prosecuted? It’s well established precident that cops don’t have to protect you. It’s why the guy who stood by during a school shooting wasn’t fired initially.

  16. Honestly, I don’t see how any judgement on this case can be made unless we know the racial makeup of everyone involved.

    1. well played….

  17. Qualified immunity is fertile legal grounds for abuse of power. But the sad fact is that without qualified immunity it would become almost impossible to enforce laws against black lawbreakers in this era Dindoophilia and blacktivist prosecutors.

  18. It really depends on the situation. The cops are para-military, you follow the highest ranking officers orders, and challenging could quickly end your career. So I would need to know who was doing the beating and who was doing the watching. Take George Floyd, do you think two rookies on their first day on the job are going to take control from the senior officer training them? Not going to happen, if they don’t lose their job right there, the older officers will drum them out of the force. A lot or reform is needed if you want it to change.

  19. “The great masses of men, though theoretically free, are seen to submit supinely to oppression and exploitation of a hundred abhorrent sorts. Have they no means of resistance? Obviously they have. The worst tyrant, even under democratic plutocracy, has but one throat to slit. The moment the majority decided to overthrow him he would be overthrown. But the majority lacks the resolution; it cannot imagine taking the risks.” ~ H. L. Mencken (1926). “Notes on Democracy,” p. 50, Alfred A. Knopf
    “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?… The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt! If…if…We didn’t love freedom enough. And even more – we had no awareness of the real situation…. We purely and simply deserved everything that happened afterward.” ― Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956

    1. Thanks for the Mencken quote. Democratic plutocracy is a much clearer identifier of what the mixed economy kleptocracy could profitably strive to restore. “Capitalism” is an 1840s German communist expression for mystical monarchic slaveholding colonial mercantilism described by Hobbes and Adam Smith. Mencken was happy as a clam with Grover Cleveland’s cameo appearing on $1000 bills.

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  21. If any of the assholes who stood around doing fuck-all with their thumbs up their asses while their buddies were committing murder should ever feel any remorse for their uselessness, they should know that there is no apology more sincere than hara-kiri.


  22. Some 98% of registered voters clearly went on record as preferring the initiation of harmful, coercive and deadly force by police and military. So why the surprise? Four years ago voters could at least oppose aggressive coercion without endorsing a violent communist anarchist on the Libertarian ticket. We got 3.28 times as many votes when voting for Libertarian candidates on the national ballot was an option and the platform didn’t endorse entry without inspection.

  23. How did we end up at a place where the standard for culpability is “clearly violates the US constitution”?

    I mean, constitution or no constitution, it doesn’t take a rocket scientist to figure out where right and wrong lies in a case like this. Even death squads from the Nicaraguan junta know when they are over the line.

    I don’t know which is worse… judges who have wrapped themselves up in knots of legalese language to escape holding these people responsible, or juries who acquit people like Thomas Kelly’s killers.

    I suppose “us vs them” is such a powerful motivator that people will believe whatever they have to believe in order to protect “us” from “them”.

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