JAMISON V.

MCCLENDON
476 F. Supp.3d 386 (S.D. Miss. 2020)

CARLTON REEVES, J.:

Clarence Jamison wasn’t jaywalking.*

He wasn’t outside playing with a toy gun.

He didn’t look like a “suspicious person.”

He wasn’t suspected of “selling loose, untaxed cigarettes.”

He wasn’t suspected of passing a counterfeit $20 bill.

He didn’t look like anyone suspected of a crime.

He wasn’t mentally ill and in need of help.

He wasn’t assisting an autistic patient who had wandered away from a group home.

He wasn’t walking home from an after-school job.

He wasn’t walking back from a restaurant.

He wasn’t hanging out on a college campus.

He wasn’t standing outside of his apartment.

He wasn’t inside his apartment eating ice cream.

He wasn’t sleeping in his bed.

He wasn’t sleeping in his car.

He didn’t make an “improper lane change.”

He didn’t have a broken tail light.

He wasn’t driving over the speed limit.

He wasn’t driving under the speed limit.

No, Clarence Jamison was a Black man driving a Mercedes convertible.

*
Each of the following set of circumstances in this sequence describes fatal encounters
with police officers—Ed.
 2

As he made his way home to South Carolina from a vacation in Arizona, Jamison 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.

Nothing was found. Jamison isn’t a drug courier. He’s a welder.

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing.
So nearly two hours after it started, the officer left Jamison by the side of the road to put
his car back together.

Thankfully, Jamison left the stop with his life. Too many others have not.

The Constitution says everyone is entitled to equal protection of the law—even at the
hands of law enforcement. Over the decades, however, judges have invented a legal
doctrine to protect law enforcement officers from having to face any consequences for
wrongdoing. The doctrine is called “qualified immunity.” In real life it operates like
absolute immunity.

In a recent qualified immunity case, the Fourth Circuit wrote: “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.” [ ]
This Court agrees. Tragically, thousands have died at the hands of law enforcement over
the years, and the death toll continues to rise. Countless more have suffered from other
forms of abuse and misconduct by police. Qualified immunity has served as a shield for
these officers, protecting them from accountability.

This Court is required to apply the law as stated by the Supreme Court. Under that law,
the officer who transformed a short traffic stop into an almost two-hour, life-altering
ordeal is entitled to qualified immunity. The officer’s motion seeking as much is
therefore granted.

But let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in
this case to one man sheds light on the harm done to the nation by this manufactured
doctrine.

As the Fourth Circuit concluded, “This has to stop.” [ ]

I. Factual and Procedural Background

[The court first describes in great detail the circumstances in which plaintiff was detained
by defendant, a white police officer.]

Jamison subsequently filed this lawsuit against Officer McClendon [and the police
department as well, though that claim was dismissed prior to the disposition of the
current motion].
 3

In “Claim 1,” Jamison alleged that the defendant violated his Fourth Amendment rights
by “falsely stopping him, searching his car, and detaining him.” Jamison’s second claim,
brought under the Fourteenth Amendment, stated that the defendant should be held liable
for using “race [as] a motivating factor in the decision to stop him, search his car, and
detain him.” Jamison’s third claim alleged a violation of the Fourth Amendment by
Officer McClendon for “recklessly and deliberately causing significant damage to Mr.
Jamison’s car by conducting an unlawful search of the car in an objectively unreasonable
manner amounting to an unlawful seizure of his property.”

Jamison sought actual, compensatory, and punitive damages against Officer McClendon.
He testified that he received an estimate for almost $4,000 of physical damage to his car.
He described the damage as requiring the replacement of the “whole top” of the car and
re-stitching or replacement of his car seats. In his deposition, Jamison said he provided
pictures and the estimates to Officer McClendon’s counsel.

Jamison also sought damages for the psychological harm he sustained. During his
deposition, he described the emotional toll of the traffic stop and search in this way:
When I first got home, I couldn’t sleep. So I was up for like – I didn’t even sleep
when I got home. I think I got some rest the next day because I was still mad just
thinking about it and then when all this killing and stuff come on TV, that’s like a
flashback. I said, man, this could have went this way. It had me thinking all kind
of stuff because it was not even called for....
Then I seen a story about the guy in South Carolina, in Charleston, a busted
taillight. They stopped him for that and shot him in the back, and all that just went
through my mind. . . .
I don’t even watch the news no more. I stopped watching the news because every
time you turn it on something’s bad.

On December 1, 2017, the defendant filed a motion for summary judgment. . . .

II. Legal Standard

A. Section 1983: A New Hope

Jamison brings his claims under 42 U.S.C. § 1983, a statute that has its origins in the
Civil War and “Reconstruction,” the brief era that followed the bloodshed. [The court
then recounts the “emancipationist” efforts” that “existed alongside white supremacist
backlash, terror, and violence.”] “Congress sought to respond to ‘the reign of terror
imposed by the Klan upon black citizens and their white sympathizers in the Southern
States.’ ” It passed The Ku Klux Act of 1871, which “targeted the racial violence in the
South undertaken by the Klan, and the failure of the states to cope with that violence.” [ ]

The Act’s mandate was expansive. Section 2 of the Act provided for civil and criminal
sanctions against those who conspired to deprive people of the “equal protection of the
 4

laws.” “Sections 3 and 4 authorized the use of federal force to redress a state’s inability
or unwillingness to deal with Klan or other violence.” [ ] “The Act was strong medicine.”
[]

Section 1 of the Ku Klux Act, now codified as 42 U.S.C. § 1983, uniquely targeted state
officials who “deprived persons of their constitutional rights.” While the Act as a whole
“had the Klan ‘particularly in mind,’ ” Section 1 recognized the local officials who
created “the lawless conditions” that plagued “the South in 1871.” [ ] Thus, the doors to
the courthouse were opened to “any person who ha[d] been deprived of her federally
protected rights by a defendant acting under color of state law.” [ ] The Act reflected
Congress’s recognition that—to borrow the words of today’s abolitionists—“the whole
damn system [was] guilty as hell.” [ ]

[The court then describes how the U.S. Supreme Court’s subsequent interpretations of the
Fourteenth Amendment considerably limited the scope and effectiveness of the criminal
conspiracy sections of the Act, whereas Section 1 was “largely forgotten.”]

It was against this backdrop that the Supreme Court attempted to resuscitate Section
1983. In 1961, the Court decided Monroe v. Pape, [365 U.S. 167, 169 (1961)], a case
where “13 Chicago police officers broke into [a Black family’s] home in the early
morning, routed them from bed, made them stand naked in the living room, and
ransacked every room, emptying drawers and ripping mattress covers.” The Justices held
that Section 1983 provides a remedy for people deprived of their constitutional rights by
state officials. Accordingly, the Court found that the Monroe family could pursue their
lawsuit against the officers.

Section 1983’s purpose was finally realized, namely “‘to interpose the federal courts
between the States and the people, as guardians of the people’s federal rights.’” [ ] The
statute has since become a powerful “vehicle used by private parties to vindicate their
constitutional rights against state and local government officials.” [ ]

Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
Invoking this statute, Jamison contends that Officer McClendon violated his Fourth
Amendment right to be free from unreasonable searches and seizures.

B. Qualified Immunity: The Empire Strikes Back

Just as the 19th century Supreme Court neutered the Reconstruction-era civil rights laws,
 5

the 20th century Court limited the scope and effectiveness of Section 1983 after Monroe
v. Pape. . . . The doctrine of qualified immunity is perhaps the most important limitation.
Although Section 1983 made no “mention of defenses or immunities, ‘[the Supreme
Court] read it in harmony with general principles of tort immunities and defenses rather
than in derogation of them.’” [ ] It reasoned that “[c]ertain immunities were so well
established in 1871 . . . that ‘we presume that Congress would have specifically so
provided had it wished to abolish’ them.” [ ]
[In Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court held] that officers should be
shielded from liability when acting in good faith—at least in the context of constitutional
violations that mirrored the common law tort of false arrest and imprisonment. [ ]
Subsequent decisions “expanded the policy goals animating qualified immunity.” [ ] The
Supreme Court eventually characterized the doctrine as an “attempt to balance competing
values: not only the importance of a damages remedy to protect the rights of citizens, but
also the need to protect officials who are required to exercise discretion and the related
public interest in encouraging the vigorous exercise of official authority.” [ ] . . .

Once, qualified immunity protected officers who acted in good faith. The doctrine now
protects all officers, no matter how egregious their conduct, if the law they broke was not
“clearly established.” [ ]
This “clearly established” requirement is not in the Constitution or a federal statute. The
Supreme Court came up with it in 1982. [ ] In 1986, the Court then “evolved” the
qualified immunity defense to spread its blessings “to all but the plainly incompetent or
those who knowingly violate the law.” [ ] It further ratcheted up the standard in 2011,
when it added the words “beyond debate.” [ ] In other words, “for the law to be clearly
established, it must have been ‘beyond debate’ that [the officer] broke the law.” [ ] An
officer cannot be held liable unless every reasonable officer would understand that what
he is doing violates the law. [ ] It does not matter, as the Fifth Circuit has explained,
“that we are morally outraged, or the fact that our collective conscience is shocked by the
alleged conduct . . . [because it] does not mean necessarily that the officials should have
realized that [the conduct] violated a constitutional right.” [ ] Even evidence that the
officer acted in bad faith is now considered irrelevant. [ ]
The Supreme Court has also given qualified immunity sweeping procedural advantages.
“Because the defense of qualified immunity is, in part, a question of law, it naturally
creates a ‘super-summary judgment’ right on behalf of government officials. Even when
an official is not entitled to summary judgment on the merits—because the plaintiff has
stated a proper claim and genuine issues of fact exist—summary judgment can still be
granted when the law is not reasonably clear.”
...

Fifth Circuit Judge Don Willett has succinctly explained the problem with the clearly
established analysis:
 6

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer
courts are producing precedent. Important constitutional questions go unanswered
precisely because no one’s answered them before. Courts then rely on that judicial
silence to conclude there’s no equivalent case on the books. No precedent = no
clearly established law = no liability. An Escherian Stairwell. Heads government
wins, tails plaintiff loses.
[Zadeh v. Robinson, 928 F.3d 457, 479-80 (5th Cir. 2019) (Willet, J., concurring in part
and dissenting in part).]
To be clear, it is unnecessary to ascribe malice to the appellate judges deciding these
terrible cases. No one wants to be reversed by the Supreme Court, and the Supreme
Court’s summary reversals of qualified immunity cases are ever-more biting. If you’ve
been a Circuit Judge since 1979—sitting on the bench longer than any current Justice—
you might expect a more forgiving reversal. Other appellate judges see these decisions,
read the tea leaves, and realize it is safer to find debatable whether it was a clearly
established Constitutional violation to force a prisoner to eat, sleep, and live in prison
cells swarming in feces for six days.

It is also unnecessary to blame the doctrine of qualified immunity on ideology. “Although

the Court is not always unanimous on these issues, it is fair to say that qualified immunity
has been as much a liberal as a conservative project on the Supreme Court.” [ ] Judges
disagree in these cases no matter which President appointed them. [ ] Qualified immunity
is one area proving the truth of Chief Justice Roberts’ statement, “We do not have Obama
judges or Trump judges, Bush judges or Clinton judges.” [ ]

There are numerous critiques of qualified immunity by lawyers, judges, and academics. [
] Yet qualified immunity is the law of the land and the undersigned is bound to follow its
terms absent a change in practice by the Supreme Court.

Here is the exact legal standard applicable in this circuit:

There are generally two steps in a qualified immunity analysis. “First, a court
must decide whether the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right. Second . . . the court must decide whether the
right at issue was clearly established at time of the defendant’s alleged
misconduct.” [ ] However, we are not required to address these steps in sequential
order.
In Fourth Amendment cases, determining whether an official violated clearly
established law necessarily involves a reasonableness inquiry. . . . “[A] reasonably
competent public official should know the law governing his conduct.” In general,
“the doctrine of qualified immunity protects government officials from . . .
liability when they reasonably could have believed that their conduct was not
barred by law, and immunity is not denied unless existing precedent places the
constitutional question beyond debate.” [ ]
The Court will now consider Jamison’s claims under these two steps.
 7

IV. Qualified Immunity Analysis

A. Violation of a Statutory or Constitutional Right

[The court had previously ruled that Office McClendon is entitled to qualified immunity
for his decision to pull over Jamison. Based on precedent, the court concluded that the
stop itself—the physical intrusion into Jamison’s car—“was an unreasonable search in
violation of the Fourth Amendment. It then conclude that McClendon’s subsequent
search of the vehicle further violated the Fourth Amendment because the consent by
Jamison to search the vehicle was “involuntary, a situation where he felt he had ‘no
alternative to compliance’ and merely mouthed ‘pro forma words of consent.’ ”]
B. Violation of Clearly Established Law

The Court must now determine whether Officer McClendon “violated clearly established
constitutional rights of which a reasonable person would have known.” [ ]

“A clearly established right is one that is ‘sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.’ ” [ ] “Clearly established
law must be particularized to the facts of a case. Thus, while a case need not be directly
on point, precedent must still put the underlying question beyond debate.” [ ] District
courts in this Circuit have been told that “clearly established law comes from holdings,
not dicta.” [ ] We “are to pay close attention to the specific context of the case” and not
“define clearly established law at a high level of generality.” [ ]
...

It is here that the qualified immunity analysis ends in Officer McClendon’s favor.

Viewing the facts in the light most favorable to Jamison, the question in this case is
whether it was clearly established that an officer who has made five sequential requests
for consent to search a car, lied, promised leniency, and placed his arm inside of a
person’s car during a traffic stop while awaiting background check results has violated
the Fourth Amendment. It is not.

[The court then explains why “clearly established law must be particularized to the facts
of the case,” and there is no such law applicable to the facts of this case.] Given the lack
of precedent that places the Constitutional question “beyond debate,” Jamison’s claim
cannot proceed. [ ] Officer McClendon is entitled to qualified immunity as to Jamison’s
prolonged detention and unlawful search claims.
...

VI. The Return of Section 1983

That the Justices haven’t acted so far is perhaps understandable. Not only would they
likely prefer that Congress fixes the problem, they also value stare decisis, the legal
principle that means “fidelity to precedent.” [ ]

Stare decisis, however, “isn’t supposed to be the art of methodically ignoring what
 8

everyone knows to be true.” [ ] From TikTok to the chambers of the Supreme Court,
there is increasing consensus that qualified immunity poses a major problem to our
system of justice.

Justice Kennedy “complained” as early as 1992 that in qualified immunity cases, “we
have diverged to a substantial degree from the historical standards.” [ ] Justice Scalia
admitted that the Court hasn’t even “purported to be faithful to the common-law
immunities that existed when § 1983 was enacted.” [ ] Justice Thomas wrote there is “no
basis” for the “clearly established law” analysis and has expressed his “growing concern
with our qualified immunity jurisprudence.” [ ] Justice Sotomayor has noted that her
colleagues were making the “clearly established” analysis ever more “onerous.” [ ] In her
view, the Court’s doctrine “tells officers that they can shoot first and think later, and it
tells the public that palpably unreasonable conduct will go unpunished.” [ ] It remains to
be seen how the newer additions to the Court will vote. [ ]

Even without a personnel change, recent decisions make it questionable whether qualified
immunity can withstand the stare decisis standard. . . . Perhaps this Court is more open to
a course-correction than its predecessors. . . .