No Qualified Immunity for Shooting Prone Suspect in the Back

Estate of Jones v. City of Martinsburg, 2020 WL 3053386 (4th Cir. 2020)

An officer spotted Wayne A. Jones walking in the road late in the evening. Jones was homeless and had been diagnosed with schizophrenia. The officer parked his car, got out and asked Jones why he was walking on the street. Then, the officer asked Jones for identification and he replied that he had none. When the officer asked Jones about weapons, he replied, “What’s a weapon?” When the officer explained that he meant “anything—guns, knives, clubs,” Jones said that he had “something.”

The officer called for backup and told Jones to place his hands on the hood of the patrol car. Jones did not; rather, he pulled away. The officer repeated his commands and Jones asked, “What are you trying to do?”; “What do you want?”; and “What did I do to you?” The officer drew a TASER® and fired it. Just then, a second officer arrived. He also fired his TASER at Jones, but neither TASER seemed to affect him.

Jones hit the first officer in the face, then ran down the street before the backup officer caught up with and struck him. A third officer arrived. Now cornered on an elevated stoop, Jones raised his hands, but did not comply with orders to get on the ground. Two officers approached and grabbed his hands. Jones resisted and the trio tumbled down the stairs. One of the officers applied “a choke hold, just to kind of stop him from resisting.”

As five officers surrounded Jones, now face down on the ground and “moving in a swimmer’s kick-like motion,” the body worn camera recording shows an officer loudly calling Jones a “mother__ker” and another officer kicking Jones as he lay on the ground. Another officer applied a TASER drive stun with no apparent effect.

The officer holding Jones in a chokehold felt a scratch, then a poke and saw a small fixed-blade knife in Jones’ hand. When the officer called out, “He’s got a knife!” the officers withdrew and encircled Jones. An officer stated that Jones “still had the f__king knife in his hand and he wasn’t f__king doing nothing.” As Jones lay motionless on the ground, not responding to commands to drop the knife, the five officers fired a total of 22 rounds at Jones, striking him in the lower back and buttocks. Jones died.

As the recording continued, one of the officers described the incident as a “cluster” and said that the officers were going to “have to gather some f__king story” for the outside agency investigators. Jones’ family sued, alleging excessive force, due process violation, failure to train and failure to discipline the officers. The trial court granted summary judgment to the officers and the city. After several procedural appeals, the court of appeals reversed the lower court grant of summary judgment and remanded the case for trial.

The court reminded readers of the fundamentals of qualified immunity for government officials: “Qualified immunity shields police officers who commit constitutional violations from liability when, based on ‘clearly established law,’ they ‘could reasonably believe that their actions were lawful.’ . . . Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Before granting an officer qualified immunity from suit, the court must decide whether the officer violated a constitutional right and whether the right was clearly established at the time of the violation.

The court held that the law was clearly established at the time of the officers’ encounter with Jones: Officers may not shoot a secured or incapacitated person. Even though Jones was not handcuffed at the time he was face down and held in a choke hold, the court opined that a reasonable jury could find that he was both secured and incapacitated just before he was fatally shot. Jones had experienced TASER uses and was struck in the brachial plexus, kicked as he lay on the ground and choked to the point that gurgling can be heard in the video. When the officers backed away, Jones’ arm fell limply to the ground.

Before granting an officer qualified immunity from suit, the court must decide whether the officer violated a constitutional right and whether the right was clearly established at the time of the violation.

The court held that a jury could reasonably infer Jones was struggling to breathe as he lay on his side and stomach on the ground: “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 can be held liable.” The court held that the city was shielded from liability because the single incident of excessive force did not establish the city’s failure to adequately train police officers on the use of force.

The court noted that Jones’ death followed the Ferguson, Missouri shooting of Michael Brown by one year and “before the ink dried on the Jones opinion,” George Floyd was killed in Minneapolis. Suggesting the officers shot Jones out of fear, the court said: “This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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