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UPRISING: Immunity for Police Under Attack by Federal Judge

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From Consortium News

As the Massachusetts legislature debates whether to water down its qualified immunity defense, a federal judge in Mississippi has filed a stunning 72-page opinion blasting the doctrine.

Qualified immunity has entered the national discourse with the massive uprisings in the wake of the public lynching of George Floyd. It allows police and other government officials to escape liability for their law breaking.

In Jamison v. McClendon, U.S. District Court Judge Carlton Reeves recently concluded that Officer Nick McClendon violated Clarence Jamison's Fourth Amendment rights when he subjected Jamison to a nearly two-hour ordeal that included badgering, pressuring, lying and intrusively searching his car.

But the judge's hands were tied by the qualified immunity doctrine so he was forced to deny Jamison's legal claim. Reeves, an African-American man, traced the development of the law and the institutional racism and police brutality that continue to plague our society. "Black people in this country are acutely aware of the danger traffic stops pose to Black lives," the judge wrote.

Judge Reeves began his blockbuster opinion by listing 19 victims of outrageous police misconduct, who would have been met with the qualified immunity defense if they or their heirs had sued the offending officers. He wrote:

"Clarence Jamison wasn't jaywalking" (like Michael Brown); "wasn't outside playing with a toy gun" (like 12-year-old Tamir Rice); "didn't look like a 'suspicious person'" (like Elijah McClain); "wasn't suspected of 'selling loose, untaxed cigarettes'" (like Eric Garner); "wasn't suspected of passing a counterfeit $20 bill" (like George Floyd); "didn't look like anyone suspected of a crime" (like Philando Castile and Tony McDade); "wasn't mentally ill and in need of help" (like Jason Harrison); "wasn't assisting an autistic patient" (like Charles Kinsey); "wasn't walking home from an after-school job" (like James Earl Green); "wasn't walking back from a restaurant" (like Ben Brown); "wasn't hanging out on a college campus" (like Phillip Gibbs); "wasn't standing outside of his apartment" (like Amadou Diallo); "wasn't inside his apartment eating ice cream" (like Botham Jean); "wasn't sleeping in his bed" (like Breonna Taylor); "wasn't sleeping in his car" (like Rayshard Brooks); "didn't make an 'improper lane change'" (like Sandra Bland); "didn't have a broken tail light" (like Walter Scott); "wasn't driving over the speed limit" (like Hannah Fizer); and "wasn't driving under the speed limit" (like Ace Perry).

"No," Reeves continued, "Clarence Jamison was a Black man driving a Mercedes convertible." McClendon lied about why he stopped Jamison, who was driving home to South Carolina after a vacation in Arizona.

Jamison, Reeves wrote, "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." McClendon found nothing and his canine search came up empty as well.

"Thankfully, Jamison left the stop with his life," Reeves observed. "Too many others have not." Reeves cited the cases of 70 people including Eric Garner and George Floyd whose last words were, "I can't breathe," as they died in police custody.

Officer McClendon tried to justify his stop of Jamison by claiming that the temporary license tag was "folded over to where [he] couldn't see it." Jamison, who had recently purchased the 12-year-old car, pulled over immediately and gave McClendon his license, insurance and bill of sale for the vehicle.

McClendon didn't tell Jamison that his background check came back clear. The officer lied that he had a tip that there were 10 kilos of cocaine in Jamison's car and falsely asserted that the car was stolen. After McClendon's five requests to search his car, Jamison finally consented.

The search and subsequent dog sniff turned up nothing. In the process, McClendon tore the car apart, doing $4,000 worth of damage to it.

"In an America where Black people 'are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles,'" Reeves, wrote, "who can say that Jamison felt free that night " to say no to an armed Officer McClendon?"

Jamison sued McClendon under 42 U.S.C. section 1983, claiming violation of his constitutional rights and seeking money damages.

A 'Manufactured Doctrine' to Let Cops Off the Hook

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)

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