Federal Judge Calls Out Qualified Immunity’s Contribution To Racist Policing

If you only read one qualified immunity decision this year, make it this one. (At least until something better comes along. But this one will be hard to top.) [h/t MagentaRocks]

The decision [PDF] — written by Judge Carlton W. Reeves for the Southern District of Mississippi — deals with the abuse of a Black man by a white cop. Fortunately, the man lived to sue. Unfortunately, Supreme Court precedent means the officer will not be punished. But the opening of the opinion is unforgettable. It’s a long recounting of the injustices perpetrated on Black people by white law enforcement officers.

Clarence Jamison wasn’t jaywalking.

He wasn’t outside playing with a toy gun.

He didn’t look like a “suspicious person.”

He wasn’t suspected of “selling loose, untaxed cigarettes.”

He wasn’t suspected of passing a counterfeit $ 20 bill.

He didn’t look like anyone suspected of a crime.

He wasn’t mentally ill and in need of help.

He wasn’t assisting an autistic patient who had wandered away from a group home.

He wasn’t walking home from an after-school job.

He wasn’t walking back from a restaurant.

He wasn’t hanging out on a college campus.

He wasn’t standing outside of his apartment.

He wasn’t inside his apartment eating ice cream.

He wasn’t sleeping in his bed.

He wasn’t sleeping in his car.

He didn’t make an “improper lane change.”

He didn’t have a broken tail light.

He wasn’t driving over the speed limit.

He wasn’t driving under the speed limit.

Every one of these is linked to a footnote that points to a news article or (in one case) a DOJ investigation dealing with white officers perpetrating violence and other rights violations against Black citizens. (The decision does not provide links to everything listed here. Although there are footnotes appended, only a couple contain actual URLs. I have linked to relevant stories where possible to provide context.)

The decision continues:

No, Clarence Jamison was a Black man driving a Mercedes convertible.

As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.

Nothing was found. Jamison isn’t a drug courier. He’s a welder.

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.

The officer claimed he had a right to perform the traffic stop. According to Officer Nick McClendon of the Richland Police Department, the temporary tag on the vehicle had “folded over,” making it impossible to read. Officer McClendon testified that this sort of thing happens when temp tags aren’t secured properly and the vehicle is traveling at highway speeds.

That’s what McClendon swore to. This is what he said when he was confronted with actual facts:

When Officer McClendon was shown the cardboard tag during his deposition, it showed no signs of being creased. The officer claimed that it either could have folded without creasing or that someone had ironed out the crease.

Yeah, I’m sure Clarence Jamison — frightened by a two-hour shakedown by a white cop — did exactly that: went straight home and ironed his dealer plate.

Here’s what Jamison testified he did after this two-hour roadside ordeal:

When I first got home, I couldn’t sleep. So I was up for like – I didn’t even sleep when I got home. I think I got some rest the next day because I was still mad just thinking about it and then when all this killing and stuff come on TV, that’s like a flashback. I said, man, this could have went this way. It had me thinking all kind of stuff because it was not even called for. . . .

Then I seen a story about the guy in South Carolina, in Charleston, a busted taillight. They stopped him for that and shot him in the back,33 and all that just went through my mind . . . .

I don’t even watch the news no more. I stopped watching the news because every time you turn it on something’s bad.

The court surmises Jamison is referring to the shooting of Walter Scott by South Carolina police officer Walter Slager. Scott was shot in the back by Slager as he ran away from the officer. Footage captured by a passerby’s cellphone appeared to show Officer Slager planting his Taser on the ground near where Scott fell. When the shots were fired, Scott was nearly 20 feet away from Slager. Nevertheless, Officer Slager radioed for help, claiming Scott had tried to grab his Taser.

Moving on from this point, Judge Reeves does something very few courts have: he runs down the history of Section 1983 lawsuits and their ties to both the 14th Amendment and the history of racism perpetrated by law enforcement.

Jamison brings his claims under 42 U.S.C. § 1983, a statute that has its origins in the Civil War and “Reconstruction,” the brief era that followed the bloodshed. If the Civil War was the only war in our nation’s history dedicated to the proposition that Black lives matter, Reconstruction was dedicated to the proposition that Black futures matter, too.

Following this came the 14th Amendment. These were all positive developments, but whites in the South didn’t think so. This includes Mississippi, where this case originates. Whites resented the rights given to Blacks, even though they were the same rights enjoyed by white people. Racism ensued.

In Mississippi, it became a criminal offense for blacks to hunt or fish,” and a U.S. Army General reported that “white militias, with telltale names such as the Jeff Davis Guards, were springing up across” the state.

[…]

The terrorism in Mississippi was unparalleled. During the first three months of 1870, 63 Black Mississippians “were murdered . . . and nobody served a day for these crimes.” In 1872, the U.S. Attorney for Mississippi wrote that Klan violence was ubiquitous and that “only the presence of the army kept the Klan from overrunning north Mississippi completely.”

Section 1983 — which allows citizens to sue government employees for rights violations — is derived from the Ku Klux Klan Act. Congress realized local law enforcement agencies were acting like unofficial wings of the KKK, frequently engaging in violence against Black people. Unfortunately, this proved to be little more than a speed bump as far as systemic racism went.

“By 1873, many white Southerners were calling for ‘Redemption’ – the return of white supremacy and the removal of rights for blacks – instead of Reconstruction.” The federal system largely abandoned the emancipationist efforts of the Reconstruction Era. And the violence returned. “In 1874, 29 African-Americans were massacred in Vicksburg, according to Congressional investigators. The next year, amidst rumors of an African-American plot to storm the town, the Mayor of Clinton, Mississippi gathered a white paramilitary unit which hunted and killed an estimated 30 to 50 African-Americans.” And in 1876, U.S. Marshal James Pierce said, “Almost the entire white population of Mississippi is one vast mob.”

It took nearly 100 years for federal courts to reverse the bigotry of the Southern emancipation backlash.

It was against this backdrop that the Supreme Court attempted to resuscitate Section 1983. In 1961, the Court decided Monroe v. Pape, a case where “13 Chicago police officers broke into [a Black family’s] home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers.” The Justices held that Section 1983 provides a remedy for people deprived of their constitutional rights by state officials. Accordingly, the Court found that the Monroe family could pursue their lawsuit against the officers.

Clarence Jamison, a Black man traveling through Mississippi — probably noticed things hadn’t improved much over the last 50 years. Here’s a brief glimpse of his treatment by Officer McClendon:

According to Officer McClendon, he walked back to the passenger side of Jamison’s car before hearing from NCIC. He later admitted in his deposition that his goal when he returned to Jamison’s car was to obtain consent to search the car. Once he reached the passenger side window, Officer McClendon returned Jamison’s documents and struck up a conversation without mentioning that the EPIC background check came back clear. Thinking he was free to go after receiving his documents, Jamison says he prepared to leave.

[…]

According to Jamison, however, as he prepared to leave, Officer McClendon put his hand over the passenger door threshold of Jamison’s car and told him to, “Hold on a minute.” Officer McClendon then asked Jamison – for the first time – if he could search Jamison’s car. “For what?” Jamison replied. Officer McClendon changed the conversation, asking him what he did for a living. They discussed Jamison’s work as a welder.

Officer McClendon asked Jamison – for the second time – if he could search the car. Jamison again asked, “For what?” Officer McClendon said he had received a phone call reporting that there were 10 kilos of cocaine in Jamison’s car. That was a lie. Jamison did not consent to the search.

Officer McClendon then made a third request to search the car. Jamison responded, “there is nothing in my car.” They started talking about officers “planting stuff” in people’s cars. At this point, Officer McClendon “scrunched down,” placed his hand into the car, and patted the inside of the passenger door. As he did this, Officer McClendon made his fourth request saying, “Come on, man. Let me search your car.” Officer McClendon moved his arm further into the car at this point, while patting it with his hand.

As if four asks were not enough, Officer McClendon then made his fifth and final request. He lied again, “I need to search your car . . . because I got the phone call [about] 10 kilos of cocaine.”

Jamison — tiring of McClendon and perhaps feeling this would speed things up — agreed to a search. A very invasive and thorough search was conducted but nothing was found.

Officer McClendon later testified that he searched Jamison’s car “from the engine compartment to the trunk to the undercarriage to underneath the engine to the back seats to anywhere to account for all the voids inside the vehicle.”

[…]

Officer McClendon admitted in his deposition that he did not find “anything suspicious whatsoever.”

When the search fails, maybe it’s time to call in the Yes Man, which is actually a dog that can give cops permission to engage in searches.

However, he asked Jamison if he could “deploy [his] canine.” Jamison says he initially refused. Officer McClendon asked again, though, and Jamison relented, saying “Yes, go ahead.” Officer McClendon “deployed [his] dog around the vehicle.” The dog gave no indication, “so it confirmed that there was nothing inside the vehicle.”

It may not have ended in death or injury. But it was an injustice all the same. The suspicionless search lasted almost two hours. That’s two hours Clarence Jamison will never have back. And it’s two hours he could have used at that point, as the court notes:

This explains why [Jamison] was tired. Here he was, standing on the side of a busy interstate at night for almost two hours against his will so Officer McClendon could satisfy his goal of searching Jamison’s vehicle. In that amount of time, Dorothy and Toto could have made it up and down the yellow brick road and back to Kansas. See Lee Pfeiffer, The Wizard of Oz, ENCYCLOPEDIA BRITANNICA (Mar. 19, 2010) (noting the 101-minute run time of the 1939 film). If Jamison was driving at 70 MPH before being stopped, in the 110 minutes he was held on the side of the road he would have gotten another 128 miles closer to home, through Rankin, Scott, Newton, and Lauderdale counties and more than 40 miles into Alabama.

But at the end of all of this, there’s nothing for Clarence Jamison, who was subjected to what appears to be a racially motivated fishing expedition by a white cop. Why? Because the Supreme Court has made it almost impossible to hold cops accountable for their rights violations, especially when a cop is clever enough to violate rights in a way the court hasn’t addressed before.

Given the lack of precedent that places the Constitutional question “beyond debate,” Jamison’s claim cannot proceed. Officer McClendon is entitled to qualified immunity as to Jamison’s prolonged detention and unlawful search claims.

This isn’t acceptable, the judge points out. The Supreme Court has ordained abuse of rights by narrowing its self-crafted qualified immunity doctrine to such a sharp point it’s almost impossible for plaintiffs to overcome. This is complete bullshit says Judge Reeves, even as he recognizes he cannot rule any other way. Here’s a list of rights violations deemed to be acceptable by courts, due to a lack of on-point precedent.

A review of our qualified immunity precedent makes clear that the Court has dispensed with any pretense of balancing competing values. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells “covered in feces” for days; police officers who stole over $ 225,000 worth of property; a deputy who bodyslammed a woman after she simply “ignored [the deputy’s] command and walked away”; an officer who seriously burned a woman after detonating a “flashbang” device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who “claim[ed] that he surrendered by raising his hands in the air”; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.

The courts are supposed to protect citizens’ rights. The Supreme Court has made it impossible for courts to do that.

If Section 1983 was created to make the courts “guardians of the people’s federal rights,’” what kind of guardians have the courts become? One only has to look at the evolution of the doctrine to answer that question.

Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”

Nearly 60 years later, politicians, who are unable to continue ignoring police violence against citizens, are looking to strip this protection away from officers. But they’re fighting an uphill battle against entrenched unions, powerful law enforcement allies in legislatures, and the Supreme Court itself. And the nation’s top court seems unwilling to correct its unforced error. Qualified immunity has given cops permission slips to engage in rights violations and severe misconduct. Crime, for the most part, continues to remain at historic lows. Despite this, police officers are still killing people at the rate of ~1,000/year with no sign of slowing down. That’s on top of rights violations that never seem to decline, no matter how much criminal activity does. Qualified immunity encourages abuse and that encouragement — the Supreme Court’s implicit blessing — is still felt most by Black citizens who have been the target of police violence and abuse for well over 200 years.

Techdirt.