CA5: Videos alone show no QI

Based on the videos alone, there was excessive force and qualified immunity is denied. Ducksworth v. Landrum, 2023 U.S. App. LEXIS 5807 (5th Cir. Mar. 10, 2023):

No reasonable officer—and no reasonable jurist looking at the video—could conclude the State could come close to showing the first, second, or fourth of these elements, much less all of them. (1) At the time Welch ordered Ducksworth to leave the car wash, Ducksworth had done nothing to evince intent to breach the peace. He was peacefully vacuuming his truck and chatting with the officers. (2) The purpose of Welch’s command is unclear because the car wash manager specifically told all four officers that Ducksworth was welcome to stay. But regardless, there is zero evidence to suggest Welch had any purpose to prevent (as opposed to provoke) a breach of the peace when he gave the command. (4) The officers had no authority to arrest Ducksworth when Welch ordered him to leave. He hadn’t violated any law. The video reveals that immediately before Welch gave that order, Ducksworth was merely chatting with officers, recounting his apology to the carwash manager, and asking the officers “how may I help you?” The officers’ real contention appears to be that they are free to order citizens to do anything any time and that refusal to obey creates probable cause for breach of the peace. But that is not the law, and no reasonable officer could believe otherwise.

The officers also argue they had probable cause because Ducksworth resisted their attempts to arrest him. True, state law forbids resisting a lawful arrest. See Miss. Code Ann. § 97-9-73 (“It shall be unlawful for any person to obstruct or resist … his lawful arrest ….”). But to trigger this law, officers must have probable cause to arrest before the citizen resists; such cause was plainly absent. It would be the ultimate bootstrapping for officers to effectuate an unlawful arrest and then charge someone for resisting it. See S.M.K.S. v. Youth Ct. of Union Cnty., 155 So. 3d 876 (Miss. Ct. App. 2014), aff’d, 155 So. 3d 747 (Miss. 2015) (“The offense of resisting arrest presupposes a lawful arrest. A person has a right to use reasonable force to resist an unlawful arrest.” (quoting Taylor v. State, 396 So. 2d 39, 42 (Miss. 1981))).

The videos show a plain violation of the Fourth Amendment. The Supreme Court has made clear that plaintiffs “generally recover damages that are proximately caused by any Fourth Amendment violation.” County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1548, 198 L. Ed. 2d 52 (2017). That means Ducksworth can seek damages for his injuries unless the officers are entitled to qualified immunity.


They’re not. …

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