by Matt Clarke

The U.S. Court of Appeals for the Fifth Circuit upheld the U.S. District Court for the Eastern District of Louisiana’s denial of qualified immunity to two police officers who allegedly fatally beat, kicked, and tasered a man who was on the ground in a fetal position and undergoing a mental health crisis.

Gretna, Louisiana, Police Officers Thomas Thompson and Arthur Morvant responded to the report that Kendole Joseph – a man with paranoid schizophrenia who had not taken his medication – was behaving strangely near a school. Joseph was “nervous and shaky,” “staring,” and “not walking straight, but rather weaving.” When they approached, he started yelling, “help me from the police” and ran away. Morvant knew his behavior was “odd” and “erratic” and that he was “emotionally disturbed.” He radioed in a report to other officers of a “suspicious person who was fleeing.” 

Officers Brandon Leduff and Eddie Martin spotted Joseph near a convenience store. They ordered him to come to them, but he entered the store. They saw no weapon and observed no threatening moves. Nonetheless, Martin entered the store with his gun aimed at Joseph who was shouting, “Help me, help me somebody call the cops.... They’re trying to kill me.”

Martin ordered Joseph to get on the ground. Instead, he jumped over the checkout counter. The store manager said he “looked scared” and immediately got on the ground in a fetal position, covering his face with his hands.

Martin and Leduff jumped over the counter. Martin put his full 300 pounds of weight onto Joseph while Leduff held down Joseph’s upper body. Morvant came in and held down Joseph’s legs. Thompson and Officer Shannon Dugas entered the store and watched from across the counter.

Dugas handed Martin a baton, which he used to jab downward, striking Joseph at least twice.

Officers Duston Costa, Julius Rolland, Steven Verrett, Robert Faison, Damond Bartlett, and Varisco entered the store and watched. All but Rolland, at a minimum, held Joseph down at some point. All observed the incident.

Over the course of 3 1/2 minutes, Martin shocked Joseph with his Taser twice, struck him with a baton at least twice, and punched him in the face three times while Costa kicked him at least a dozen times and punched him in the head six times. Finally, Joseph was handcuffed, shackled, carried to a patrol car, and placed face down in the backseat. He became unresponsive and was taken to a hospital where he died of his injuries two days later.

Joseph suffered 26 blunt-force injuries to his face, chest, back, extremities, scrotum, and testes. During the eight-minute encounter with police, he had constantly called for help and for his mother, had repeatedly said he did not have a weapon, and had not tried to injure a police officer.

Joseph’s family filed a federal civil rights action against the police officers, alleging Martin and Costa used excessive force and the other nine failed to intervene to stop them. Defendants moved for summary judgment.

The district court concluded that, construing all disputed facts and inferences in the plaintiffs’ favor, the record showed that Joseph immediately dropped into the fetal position with his hands covering his face once he was behind the counter. Police then pinned him to the floor, making it impossible for him to comply with orders to place his hands behind his back. He did not strike, kick, or threaten any person but squirmed, wiggled, and flailed some of the time. No officer attempted to negotiate with Joseph or de-escalate the encounter. Nor did any officer attempt to intervene to stop the beating of a man who was experiencing a mental health crisis while pinned to the ground.

The court ruled that officers violated Joseph’s Fourth Amendment rights in a manner prohibited by clearly established law. Therefore, they were not entitled to summary judgment based on qualified immunity. Defendants appealed.

Reviewing de novo on interlocutory appeal, the Fifth Circuit agreed with the district court’s summation of facts. It noted that, under Graham v. Conner, 490 U.S. 1 (1985), the use of violent force against a person who has committed no crime, is no threat to any person, and is not resisting is excessive and unconstitutional. Further, the force used “must be reduced once a suspect has been subdued” such as “being pinned on the ground by multiple officers.”

The Court ruled that Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012); Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013); and Cooper v. Brown, 844 F.3d 517 (5th Cir. 2016), clearly established the use of such force is unconstitutional in factually similar circumstances. Therefore, Costa and Martin were not entitled to qualified immunity.

With respect to the other nine officers, both parties failed to brief on the issue of clearly established law in either court. Because it was the plaintiffs’ burden to find and present relevant case law and they failed to do so, the district court erred when it denied the nine officers qualified immunity.

Accordingly, the Court affirmed the denial of summary judgment with respect to Costa and Martin and reversed with respect to the other nine officers. See: Joseph v. Bartlett, 981 F.3d 319 (5th Cir. 2020).

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