(Posted June 9, 2020) In a glaring, painful reminder that excessive police force against black men is nothing new, a panel of the Fourth Circuit hands down a blistering opinion today in Estate of Jones v. City of Martinsburg, W. Va.

This is a §1983 action against a city and five of its police officers. One of the officers noticed a man walking on a road instead of on an available sidewalk. He followed the jaywalking suspect for a minute or so before parking his police car and approaching him. The officer asked the jaywalker for identification, only to be told that he didn’t have any. As Judge Floyd lays out the facts, the officer “then asked to search him for weapons. Jones first asked, ‘What’s a weapon?’ When Lehman explained that this meant ‘anything—guns, knives, clubs,’ Jones acknowledged that he did have ‘something.’”

Here’s how the opinion describes what happened next:

The encounter quickly escalated. Lehman called the MPD for backup and began to demand that Jones put his hands on the police car. Jones did not comply and instead tried to move away from Lehman. Lehman began to repeatedly shout, “Put your hands on the car.” Jones responded, “What are you trying to do?”; “What do you want?”; and “What did I do to you?” Lehman never answered Jones’s questions. Lehman then pulled out his taser and discharged it on Jones.

I’ve never felt a taser strike, but it doesn’t take much imagination to conclude that it’s unpleasant. A second officer then arrived and hit the jaywalker again with his taser. The original officer reported that the jaywalker then hit him in a way that pulled the officer’s knit cap over his eyes, at which point the suspect ran away.

The second officer gave chase and, believing that the jaywalker was about to raise his hands, struck the suspect. A third officer arrived, and the three cornered the jaywalker in the entryway to a store. The officers ordered him to get on the ground, to which he answered that he hadn’t done anything wrong. One of the officers put the jaywalker into a choke hold; the officer’s audio recorder picked up choking sounds.

If you don’t have a cold feeling in your gut by this point, you will; read on.

Two more officers arrived, making five in all. One of the officers kicked the jaywalker; another hit him a third time with a taser and another hit him with something called a drive stun. “The officers reported that these efforts to stun Jones had no visible effect.” All of this is while the jaywalker is still in a choke hold.

At one point, the choking officer felt “a sharp poke in my side.” That’s when he saw a fixed-blade knife in the jaywalker’s right hand. Shouting, “He’s got a knife!” the officer backed away, as did his colleagues. The jaywalker lay limp on the ground on his right side, not moving.

The officers formed a semicircle around the jaywalker and ordered him to drop the knife. When he neither moved nor responded, they did what they thought was the sensible thing: They pumped 22 bullets into his back, killing him on the spot.

The jaywalker’s estate filed suit in U.S. District Court in West Virginia. The district court twice dismissed the suit, only to have the Fourth Circuit reverse and remand. That second remand led to a third dismissal, this time on qualified-immunity grounds, and to today’s opinion.

Qualified immunity is one of those doctrines that belies then-Judge John Roberts’s assertion during his confirmation hearings, that judges merely call balls and strikes; they don’t make law. Well, of course they make law – we call it common law, but it’s just as binding as statutory law. Nowhere in the civil rights statutes will you find a reference to qualified immunity, or its municipal cousin, the Monell doctrine. Judges crafted those doctrines; they sculpted them from raw marble, and they now lie enshrined and spotlighted in our jurisprudence.

A district judge ruled that the jaywalker’s right to be free from being shot in the back 22 times while lying limp somehow wasn’t clearly established at the time of this shooting, thus granting the officers qualified immunity. Really, that’s what the judge said. Today the Fourth Circuit issues a scathing rejection of that ruling, unanimously reversing and sending the case back to West Virginia. The circuit court does affirm the district court’s dismissal of the City, because the evidence doesn’t establish that a city policy was the moving force behind the violation. (That’s Monell, for those of you who hang out in state courtrooms.)

To appreciate this decision, you really have to read Judge Floyd’s prose. It contains pointed phrasing that I’m not accustomed to seeing in the genteel world of appellate opinions. I’ll just clip this closing paragraph, and ask you to note the brutal coincidence of timing that he describes:

Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. 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. 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. The district court’s grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated.

Lest you perceive that I’m a bleeding heart, please know that I spent nine years in the litigation section of a municipal law office, and over that span, I represented a lot of police officers. I respected, and still respect, the fact that when they show up for work, they put their lives on the line to protect people like me. Every day, every shift.

But what happened on this night in West Virginia, like what happened 15 days ago in Minneapolis, like what happened six years ago next month in New York City, like what happened three weeks after that in Ferguson, and so on, and so on, and so on, is a cancer on our nation. No, I don’t believe that municipalities should disband or defund police departments; that’s not the answer. But shrugging these killings off, as part of the price we pay to be a society, is abhorrent. And granting these five men qualified immunity from civil-rights liability is indescribably unwise. That, in case you didn’t recognize it, is a euphemism.