Take the Fifth: Nov. 19 and 20, 2020 opinions

Designated for publication

  • Joseph v. Bartlett, 19-30014, appeal from E.D. La.
    • Willett, J. (Elrod, Willett, Oldham), Oldham, J., concurring; excessive force, qualified immunity
    • Affirming district court’s denial of qualified immunity-based summary judgment in favor of two defendant officers who repeatedly tased and struck a young man (who subsequently died), reversing the district court’s qualified immunity summary judgment in favor of nine “bystander” officers, and remanding for further proceedings.
    • The Court began by recounting a scene and dialogue from The West Wing regarding proportional response, as a basis for an opinion regarding when response by arresting officers to conduct of the person they are seeking to detain is disproportional, and therefore unreasonable.
    • “In total, Joseph endured twenty-six blunt-force injuries to his face, chest, back, extremities, scrotum, and testes,” in addition to two extended charges with a taser. “Throughout the eight-minute encounter, Joseph was on the ground, experiencing acute psychosis, and continuously yelling. Officer Bartlett recalled Joseph ‘yelling random things’ and pleading for someone to ‘call the police.’ Officer Faison and the store manager recalled him pleading for someone to ‘call the real police.’ Officer Leduff recalled Joseph calling for his mother and ‘saying all types of things,’ including that he was ‘about to be killed.’ The store manager recalled Joseph calling out for his mother and repeatedly yelling, ‘My name is Kendole Joseph,’ and ‘I do not have a weapon.'”
    • “The district court concluded that, construing all facts and inferences in favor of Plaintiffs, the record supports the following account: Once behind the counter, Joseph immediately dropped into the fetal position, with his hands over his face. The officers then pinned him to the floor, rendering him incapable of complying with orders to put his hands behind his back and roll over. Joseph did not strike, kick, or threaten any officer, nor did he try. He squirmed, wiggled, and flailed at times, and he gave no struggle at other times. No officer attempted to negotiate with Joseph or otherwise de-escalate the encounter. No officer attempted to intervene, despite seeing and hearing Officers Martin and Costa tase, jab, punch, and kick Joseph, while he was pinned to the ground and experiencing a mental-health crisis. Joseph died from his injuries.”
    • The Court noted that, when qualified immunity is pled as a defense, the plaintiff has the burden to show that the constitutional right violated by the defendants was “clearly established” at the time of the alleged violation.
    • Weighing the factors applicable to excessive force claims, the Court “h[e]ld that, if a jury found those facts to be true, Officers Martin and Costa violated Joseph’s right to be free from excessive force during a seizure by failing to employ a measured and ascending response to the threat Joseph posed. Though Joseph was not suspected of committing any crime,65 was in the fetal position, and was not actively resisting, Officers Martin and Costa inflicted twenty-six blunt-force injuries on Joseph and tased him twice, all while he pleaded for help and reiterated that he was not armed. Officers Martin and Costa are not entitled to summary judgment on the constitutional merits.”
    • The Court then held as to each of the bystander officers, that none of them raised any arguments that would defeat Plaintiffs’ claims that they violated Joseph’s constitutional rights by failing to intervene. However, the Court held that failure to intervene in such a situation was not shown by Plaintiffs to be a “clearly established” constitutional violation at the time, because Plaintiff failed to even attempt to cite to any cases that would support such a finding. “The Supreme Court strictly enforces the requirement to identify an analogous case and explain the analogy. With no briefing and no district-court analysis to review, we cannot justify a denial of qualified immunity on the grounds that clearly established law shows that every officer acted unconstitutionally in this case.”
    • Judge Oldham concurred, agreeing “that police officers cannot beat an unresisting man.” As to the bystander officers, Judge Oldham concurred to note that the majority need to not have reached the question of the existence of a constitutional violation since the Plaintiff had failed to address whether the alleged violation was clearly established.


  • Berhe v. Barr, 18-60706, petition for review of BIA order
    • Wiener, J. (Wiener, Haynes, Costa), immigration
    • On petition for rehearing, vacating panel opinion that had denied the petition for review of BIA order, and remanding to BIA for consideration of fear of persecution claim under appropriate standard. Judge Haynes would have denied the petition for rehearing.
  • Parker v. Woods, 19-30154, appeal from E.D. La.
    • per curiam (Stewart, Duncan, Wilson), prisoner suit
    • Affirming summary judgment dismissing prisoner’s § 1983 claims for injuries received during pretrial detention and later imprisonment.
  • Ramsey v. Management Training & Corporation, MTC, 19-60820, appeal from N.D. Miss.
    • per curiam (Dennis, Southwick, Engelhardt), prisoner suit, frivolous
    • Dismissing appeal of dismissal of § 1983 suit as frivolous, denying IFP status, and warning plaintiff of first strike.
  • U.S. v. Whaley, 20-10426, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Affirming substantive reasonableness of sentence for failure to register as sex offender.
  • U.S. v. Brown, 20-60532, appeal from S.D. Miss.
    • per curiam (King, Smith, Wilson), criminal, compassionate release
    • Affirming denial of motion to reduce sentence/compassionate release.