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Justice Sotomayor Calls Out Fifth Circuit’s ‘Highly Questionable’ Reversal in Qualified Immunity Case of Man Kicked and Punched by Louisiana Cops


Justice Sonia Sotomayor

Supreme Court Justice Sonia Sotomayor made a statement respecting the denial of certiorari on Monday in a qualified immunity case where Louisiana police officers repeatedly kicked and punched a man while he was lying on the ground.

In the case stylized as Tucker v. City of Shreveport, the plaintiff, Gregory Tucker, was originally pulled over for two minor traffic violations–broken brake and license plate lights.

Without physically resisting arrest, Tucker was violently pulled to the ground, causing his face to bleed as it smacked against the concrete. He suffered numerous injuries as a result.

After that, and still in police custody, the flailing plaintiff was “repeatedly” punched and kicked, “ostensibly in order to gain control of his hands and complete the arrest,” according to the U.S. District Court for the Western District of Louisiana, which ruled partially in Tucker’s favor–denying qualified immunity claims raised by Shreveport Police Department Officers Chandler Cisco, William McIntire, Yondarius Johnson and Tyler Kolb as well as the city itself.

“The misdemeanor and traffic violations of which he was suspected did not of themselves warrant a particularly high degree of force,” Magistrate Judge Elizabeth Erny Foote wrote. “Once he landed on the ground, four officers surrounded him and were able to handcuff him in less than a minute; the fact that there were four officers and that Tucker was on the ground where he had less room to maneuver suggests a reduced threat to officer safety.”

The district court’s fact assessment goes on to note that the officers “each punched Tucker at least once, and McIntire kicked him at least three times” as Tucker was “kicking his legs while on the ground and was not laying still in order to allow himself to be handcuffed.”

Ultimately, Judge Foote determined the officers’ actions were unreasonable violations of the Fourth Amendment and that they were not entitled to qualified immunity because Circuit precedent forbids slamming a non-violent suspect to the ground and because the force employed by the officers clashed with “clearly established principle that officers cannot strike a subdued and restrained suspect.”

The court noted, in summary:

It is undisputed that as a result of Defendant Officers’ actions, Tucker cut his forehead and strained his left shoulder. While these injuries are unlikely to be sufficiently severe if the takedown and subsequent blows were reasonable, if the police maneuvers selected were unreasonable, then these injuries may be of constitutional significance. Moreover, one can clearly hear on the video a change in the tone of Tucker’s voice; the sound is that of a man in significant pain. Tucker has also testified that he had a black eye for several days after the incident, a headache, and a “sprung” knee. More significantly, he has testified to psychological damage, including extreme fear of the police that affects his ability to navigate the world. Because the Court must make inferences in Tucker’s favor on summary judgment, the Court finds that he has established a constitutional injury.

In a 28-page ruling, the conservative U.S. Court of Appeals for the Fifth Circuit overruled the district court–without disagreeing about any of the facts.

“It is only with respect to the legal significance of those facts where we ultimately part ways with the district court,” George W. Bush-appointed Circuit Judge Kurt D. Engelhardt wrote for the two-judge panel majority.

“Considering the record in this manner, we find the district court erred in concluding that the conduct of Officers McIntire and Cisco—in taking Tucker to the ground—was objectively unreasonable in light of pertinent clearly established law in November 2016,” the judge wrote in rejecting the lower court’s application of precedent because some of them came after the December 1, 2016 date of the incident.

Additionally, Engelhardt rejected the lower court’s understanding because none of those prior cases, “‘squarely govern’ the particular facts at issue” in Tucker’s dispute.

“On these facts, given Tucker’s refusal to comply with their verbal directives to put his hands behind his back and quit moving, it would not have been evident to Defendant Officers, based on clearly established law, that they were not entitled to use heightened force in order to gain control of Tucker’s hands and place him in handcuffs,” the appeals court found, summing up its own analysis of the facts.

In dissent, Barack Obama-appointed Circuit Judge Stephen A. Higginson sharply and tersely disagreed–characterizing the incident much differently and in line with the detailed findings of the district court that took Tucker’s claims at face value, as the law typically demands in summary judgment opinions.

“Video footage of the incident confirms the violent takedown and Defendant Officers’ use of repeated strikes and kicks against Tucker while he was on the ground,” the dissent argues. “Tucker asserts that, immediately prior to the takedown, he was putting his hands behind his back in compliance with Officer Cisco’s order and did not pull away from Officers Cisco and McIntire prior to being taken to the ground. The footage does not ‘blatantly contradict’ his account.”

Higginson also faulted his colleagues for their application and understanding of the Fifth Circuit’s precedent:

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. It may be that the Defendant Officers will nonetheless prove entitled to qualified immunity for the extreme force they used against Tucker from start to finish. But, as the district court found, a jury must first resolve the factual uncertainty as to whether Defendant Officers had justification and urgency to throw Tucker down and repeatedly strike and kick him.

“I regret not having persuaded the majority,” the dissent continues–before commenting on the political salience of the case. “I hope, however, our disagreement highlights the importance of recent attention given to the issue of qualified immunity and violent police-citizen encounters.”

In her own terse statement, Justice Sotomayor fully endorsed Higginson’s dissent.

“While this case does not meet our traditional criteria for certiorari, I write to note that the Fifth Circuit’s reversal of the District Court’s detailed order denying qualified immunity appears highly questionable for the reasons set forth by Judge Higginson’s thorough dissenting opinion,” Sotomayor concluded.

[image via Leigh Vogel/Getty Images]

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