“This Has to Stop”: Court Rejects Qualified Immunity for Officers Who Shot Wayne Jones 22 Times

Although police often make split-second decisions, “we expect them to do so with respect for the dignity and worth of black lives,” the judge wrote.

Wayne Jones. Photo: Courtesy of the Jones family

The 4th U.S. Circuit Court of Appeals revived a federal civil rights lawsuit this week against police in Martinsburg, West Virginia, vacating a lower court ruling that had granted five officers qualified immunity in connection with the murder of Wayne Jones. “This has to stop,” Judge Henry F. Floyd wrote.

The opinion forcefully rejected the officers’ contention that they shouldn’t be forced to defend killing Jones, which they called a “split-second” decision after he’d refused to comply with their lawful orders.

The idea of qualified immunity for police is that they can be insulated from charges of violating a person’s constitutional rights when they could “reasonably believe” that their actions were lawful, and it has been front and center amid protests and calls for reform since the murder of George Floyd by Minneapolis police officers on May 25. Though not immediately relevant in that case — the four officers have been criminally charged — qualified immunity is a legal doctrine that regularly shields officers from facing any civil sanction for using excessive force. The Justice in Policing Act of 2020, filed by House Democrats on June 8, seeks to do away with its sweeping protections.

“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.”

In the Jones case, the officers argued in a motion for summary judgment that the case against them should be thrown out based on qualified immunity — in other words, that it should be dismissed before a jury could weigh the evidence against them. The three-judge panel of the 4th Circuit roundly rejected that argument. “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,” Judge Floyd wrote. “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.”

Two Seconds, 22 Rounds

It was roughly 11:30 p.m. on March 13, 2013, when Officer Paul Lehman spotted Jones walking along Queen Street in downtown Martinsburg. He wasn’t on the sidewalk, as city ordinance would require, so Lehman followed Jones, a 50-year-old black man who was homeless and had been diagnosed with schizophrenia. After about a minute, Lehman honked, pulled over, and asked Jones for identification. Jones didn’t have any. Lehman asked if he had any weapons; Jones wasn’t sure what that meant. “Anything,” Lehman responded. “Guns, knives, clubs.” Jones did have a small fixed-blade knife tucked inside his right shirt sleeve, but he didn’t say that specifically, only that he had “something on him.”

From there, the situation quickly escalated. Lehman demanded that Jones get up against the car. Jones wanted to know why — “What do you want?” he asked — but Lehman didn’t explain. Instead, Lehman called for backup and, as Jones moved away, drew his Taser and fired. A second cop, Daniel North, rolled up on scene and also fired a Taser at Jones. Jones fled, running into the alcove in front of a bookstore down the street.

Before long, three more cops — William Staubs, Eric Neely, and Erik Herb — would arrive. Jones was struck in the neck, kicked, and put into a chokehold — the 4th Circuit opinion notes that “choking and gurgling sounds” can be heard in dashcam video recordings of the incident — before one of the officers realized that Jones had the small knife. The cops pulled away, forming a semicircle around him with their weapons drawn. Jones was limp and lying on his right side. Even though he was not moving, the cops demanded that Jones drop his knife. When he didn’t respond, all five fired their guns — a total of 22 rounds in two seconds. A majority of the shots hit Jones in the back and buttocks. He died at the scene.

A Berkeley County grand jury declined to indict the officers on criminal charges and in 2014, Jones’s two younger brothers, Bobby and Bruce, sued in federal court alleging that the officers had used unreasonable and excessive force. “I want the public to know the truth,” Bruce told the Herald-Mail in 2014.

The case pinged back and forth between the federal district court, which repeatedly dismissed it, and the 4th Circuit, which has now revived the suit for the third time in six years.

In her most recent decision dismissing the case, District Judge Gina Groh found that the officers were entitled to immunity. The question before her was whether the officers would have understood at the time that their actions leading to Jones’s death constituted an illegal use of excessive force. Jones had a knife, she wrote, and fled from the officers. While they were on top of Jones in front of the bookstore, one of them was cut with the knife — though he wasn’t hurt — an action Groh referred to as an attempted stabbing. When the cops realized that Jones had the weapon they backed away, and because they did, Jones wasn’t effectively “secured” — even though he wasn’t moving.

“Accordingly, the court holds that, in March 2013, it was not clearly established that an officer would violate an individual’s Fourth Amendment right to be free from excessive force by shooting a person who: (1) committed a non-violent misdemeanor; (2) resisted arrest and fled from officers; (3) was armed with a knife and attempted to stab an officer; and (4) was lying on the ground motionless at the time the shots were fired,” Groh wrote in September 2018. “Therefore, the officers are entitled to qualified immunity and summary judgment must be granted.”

“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.”

The 4th Circuit was not impressed. “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,” Floyd wrote.

The circuit court found that there was every reason to think that Jones was under the officers’ control, and they should have known that shooting him repeatedly was excessive. The fact that Jones had been pinned to the ground by multiple officers could certainly signal that he was secured, and the fact that he was unresponsive when they stood above him could have clued them in that he was not a threat. “The officers contend that Jones should have dropped the knife upon their commands, and that his failure to do so places his shooting in the gray zone where qualified immunity applies,” the court wrote. But, “shouting ‘drop the knife’ seconds before shooting him was, at best, farcical because it was impossible for an incapacitated person to drop a knife tucked into his sleeve.”

Indeed, in looking back to the entire incident, the court suggests that the officers’ behaviors bore directly on its deadly outcome. “Non-cooperation with law enforcement has never given officers carte blanche to use deadly force against a suspect; luckily for many of us, neither has being ‘armed’ with a small knife,” the court wrote. “Jones was not an armed felon on the run, nor a fleeing suspect luring officers into a high-speed chase. Jones was walking in the road next to the sidewalk, away from the dark shadows and blind corners of buildings at night. He was without housing and had a knife on his person. As a pedestrian, he should have been on the sidewalk, but Officer Lehman never told him that.”

The Chance to Seek Justice

Christopher Brown, an attorney representing the Jones family, was elated by the ruling — and he had no idea it was coming. The 4th Circuit had set the case for oral arguments, which were then postponed amid the coronavirus outbreak. Brown was still waiting for word on when they would be rescheduled when the opinion dropped. “I cannot tell you how it felt to call the brothers and to let them know we’re going to have the chance to seek justice for their brother,” he said.

He said Jones’s killing fits squarely within the national conversation about racism and policing. “Anyone who is going to be honest is not going to be naive enough to say that had this been a Caucasian female, that it would’ve come out the same way,” he said. “The approach and the attitude and demeanor of officers towards African American men is a problem. This is why the calls for change are not just national, they’re international now.”

And he’s pleased by the 4th Circuit’s critique of qualified immunity. “I’m encouraged to hear the court step out of its box a little and make a point that they’re not going to allow this shield to be used to protect officers from the unwarranted use of excessive force,” he said. Brown doesn’t believe that qualified immunity will ultimately be abolished, but he says that it needs to be reined in and applied more judiciously. “The way it’s applied in these cases is that it is constantly stretched in favor of the officer. And it should not be that way. People want their day in court, and they’re being denied their day in court, repeatedly,” he said. “Wayne’s brothers, they have no desire that their brother become a headline person, but they do hope that the loss of their brother in some way will help impact this momentous occasion where we’re seeking change.”

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