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Appeals court rules cops should have qualified immunity in violent takedowns

Andrew Cuomo

A federal appeals court on Tuesday granted so-called qualified immunity to Louisiana officers who were accused of forcing an unarmed Black man to the ground and beating him into compliance, a case that experts say exemplifies how difficult it can be for victims of police brutality to overcome the controversial doctrine in court.

The Fifth Circuit Court of Appeals reversed a 2019 US District Court decision that said the officers violated the man’s constitutional rights during the encounter and the qualified immunity defense could not protect them in court, clearing the way for the case to go to trial.

“This case is an example of just how stringent the ‘clearly established law’ standard in the qualified immunity defense can be,” said Alexander Reinert, a professor at Benjamin N. Cardozo School of Law at Yeshiva University who authored a recent study on qualified immunity for police officers.

Qualified immunity, a federal doctrine that protects officers accused of violating the Constitutional rights of citizens in the performance of their duties, was established by the Supreme Court in 1967. It shields state and local officials from being sued in civil court unless they violate someone’s “clearly established statutory or constitutional rights.” In order to prove this in court, a victim has to put forward a prior case with nearly identical facts that a court ruled as unconstitutional.

The issue has been put in the spotlight as part of the national reckoning over policing since George Floyd was killed last May by former Minnesota police officer Derek Chauvin. The doctrine continues to be one of the main sticking points between Republicans and Democrats in Congress as they try to reach a compromise on passing the George Floyd Justice in Policing Act.

The bill, which passed in the House in March, would end qualified immunity for all local, state and federal law enforcement officers. The current version of the bill does not have enough votes to advance in the Senate, but bipartisan negotiations in recent weeks have offered hope that a compromise is within reach.

The court decision on Tuesday stems from an encounter in December 2016 that began when Gregory Tucker was seen by police driving in Shreveport, Louisiana, with broken brake and license plate lights. As he was being tailed by Officer Chandler Cisco in a police cruiser, Tucker continued driving for roughly two minutes, according to the 2019 district court opinion filing.

Tucker was asked to exit his car and was patted down by Cisco. While he kept his hands on the hood of the car, Cisco found and removed a pocketknife from his pocket, the document says.

Tucker made “no signs indicating that he was likely to flee” and was “clearly upset and repeatedly asked why he had been targeted for police attention,” the court stated. Two other officers, William McIntire and Yondarius Johnson, arrived at the scene during the second search.

Cisco and McIntire then forced Tucker onto the ground where he hit his head, but he was not informed that he was under arrest and complied when officers told him to place his hands behind his back, the filing states. At that point, Officer Tyler Kolb arrived at the scene and for over a minute, a “struggle ensued with the officers repeatedly punching and striking Tucker, ostensibly in order to gain control of his hands and complete the arrest.”

The question of whether Tucker was resisting arrest, justifying police use of force, is a focal point of both arguments. The district court determined, after viewing the video footage, that Tucker was “kicking his feet” and his legs were “flailing,” but he was “not deliberately attempting to kick any of the officers.”

Tucker was “very vocal” throughout the incident and was “argumentatively objecting to his treatment” but his tone of voice changes after he starts to endure the beating as it becomes “the plaintive sound of a man in pain,” according to the decision. Once he was placed in handcuffs and stood up, Tucker was seen with “a lot of blood” on his face and was taken to the hospital.

In her 2019 decision, District Court Judge Elizabeth Erny Foote ruled in favor of Tucker, who said his beating constituted battery and excessive force. A prior case presented to the court by Tucker’s attorneys clearly established that once Tucker stopped kicking his legs and was handcuffed, “the violent striking of him needed to stop,” Foote wrote.

Two of the three circuit judges agreed in the appeals court decision on Tuesday that several aspects of the case set it apart from the clearly established facts in prior cases. The judges, after reviewing video footage, pointed specifically at the fact that Tucker didn’t immediately pull over when he was being tailed by police and noted that Tucker is inches taller than both Cisco and McIntire.

The judges also pointed to testimony from Tucker that he didn’t remember any force being used after he was handcuffed and the officers’ denial of “using such force” as justification for granting qualified immunity. While Cisco, McIntire, and Johnson had reason to believe Tucker was unarmed, the judges determined that Kolb “did not witness the pat down and so could reasonably have believed that Tucker was armed.”

According to Professor Reinert, the court’s opinion might indicate that it’s reasonable for officers who arrive at a scene to assume that every person they’re confronted with is armed. “That opens the floodgates to the kinds of force that officers could use while being protected by qualified immunity,” Reinert said.

In his dissent, Circuit Judge Stephen Higginson wrote that the video footage does not “blatantly contradict” Tucker’s account as the other judges determined, and said the law is “clearly established that the use of violent physical force against — not to mention the extreme violence of kicking –an arrestee who is not actively resisting arrest is a constitutional violation.”

“I hope, however, our disagreement highlights the importance of recent attention given to the issue of qualified immunity and violent police-citizen encounters,” Higginson wrote.

Higginson argued that a jury should ultimately determine whether officers had “justification and urgency to throw Tucker down and repeatedly strike and kick him.”

UCLA Law professor Joanna Schwartz, who authored studies on qualified immunity, said the appellate court’s decision will now set a precedent for future cases in the Fifth Circuit Court that have similar circumstances. Other courts outside of the Fifth Circuit can be persuaded by the case and rely on it to make decisions, but it’s not binding.

A lawyer considering whether to take on a case in which someone said they were thrown to the ground and beaten by police officers might not put in their time and money because there’s a high risk they might lose, Schwartz said.

“This is against the backdrop of a well-settled principle that officers can’t use force, should not use force against people who are not physically resisting,” Schwartz said. “And that precedent carries very little weight when courts won’t let those cases go forward simply because the person in the case before them walked away instead of saying something or the officers kicked them instead of punched them or these very minor deviations.”

The Tulane Civil Rights and Federal Practice Clinic, a law firm in New Orleans that represents Tucker, said in a statement to CNN that the officers beat and kicked Tucker even though he had “complied with each and every verbal command they gave him, consented to two pat-down searches, and kept his hands visible at all times.”

“Mr. Tucker believes that a jury should decide whether the videos and other evidence in this case show that the officers broke the law in tackling and kicking an unarmed, compliant man,” the statement said. “Even though the appellate court has decided that qualified immunity should shield these officers, Mr. Tucker will not stop working to end police brutality and systemic racism.”

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