Kendole Joseph was 27 years old when he died. He spent two days in the hospital after being arrested by no less than 12 Gretna, Louisiana, police officers on Feb. 7, 2017. He was the father of two children. While the Jefferson Parish coroner declined to classify the manner of Jospeh’s death, a mountain of evidence told the story of a man having a mental health crisis who “endured twenty-six blunt-force injuries to his face, chest, back, extremities, scrotum, and testes” at the hands of Gretna police officers. Joseph had committed no crime and was not a suspect in a crime. He was unarmed, and while he attempted to hide in plain site from police, he did not resist arrest according to witnesses, as well as video footage of the tragic event.
On Nov. 20, Fifth Circuit Judge Don Willett, wrote an opinion denying the officers named in a lawsuit brought by the Joseph family “qualified immunity.” As Techdirt points out, the Fifth Circuit has become known for not making decisions against officers in qualified immunity cases, and so this decision is a very important one, as Willett explains that “For those in positions of public trust—from Commanders in Chief (who must “take Care that the Laws be faithfully executed” ) to City of Gretna Police Officers (who “vow to protect life and property while safeguarding constitutional guarantees”)—proportional responses are good policy. We expect those charged with executing and enforcing our laws to take measured actions that ascend in severity only as circumstances require. A disproportionate response is unreasonable. And if it describes physical force inflicted by a police officer, it is unconstitutional.”
It is here that I think it important to point out that before the video and the witnesses’ testimonies were heard by the public, the Gretna police released a statement saying “Officers responded to a potentially deadly encounter with a much lower level of force and de-escalation of force than could have been justified under the circumstances.” Joseph’s family and millions of others disagree. Judge Willett’s decision paves the way for there to be a trial that will hopefully suss out the events that led to Joseph’s death at the hands of Louisiana police.
According to testimony heard by the Fifth Circuit, Kendole Joseph was near a middle school. An official at that school thought Joseph was acting “strange” and alerted the school’s resource officers. When the resource officers approached Joseph, he ran away and into a nearby convenience store. Twelve other Gretna police officers joined the two resource officers, and eight minutes after Joseph had entered the store he was apprehended and carried by police and put in the back of a law enforcement car. He became unresponsive in the back of the car, medical personal began CPR on him, and he was taken to the hospital, where he died two days later.
The resource officers and even the police officers testified that Joseph kept saying things like the cops were after him and they needed to protect him from the police.
The convenience-store manager, who was behind the counter at the time, testified that Joseph looked scared and immediately “went face down.”Once on the ground, Joseph covered his face with his hands and assumed the fetal position. Seconds later, Officers Martin and Leduff followed Joseph over the counter. Officer Martin, weighing 300 pounds, immediately placedhis full weight onto Joseph, who was still lying on the floor with his legs bent toward his chest. Officer Leduff began holding Joseph’s upper body down. Officer Morvant entered the store next, briefly stopped to look over the counter,then walked behind the counter and began holding Joseph’s lower body down. Officer Thompson then entered, followed by Officer Dugas, and both observed Joseph and the officers from the front side of the counter. At that point, approximately thirty seconds after Officer Martin jumped over the counter, he ordered Joseph to put his hands behind his back and deployed his taser for eleven seconds. Meanwhile, Officers Thompson and Dugas walkedaround the counter and continued observing from behind the counter. Officer Dugas handed a baton to Officer Martin, who jabbed it downward, striking Joseph at least twice with the pointed end.
More officers entered the store and either “observed” or participated as the prone Joseph was kicked more than a dozen times and punched at least three times in the head and another three times in the face. Joseph was also tased at least two times, once for 11 seconds and another time for three seconds. Joseph was finally cuffed three minutes after receiving the last blow to the face from officer Duston Costa
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 realpolice.” 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.”
Judge Willett uses this decision to outline how the use of force cannot be negotiable when it comes to cases like this.
If Joseph was not actively resisting, Officers Martin and Costa inflicted force beyond what the Fourth Amendment permits, regardless of whether they also knew aboutJoseph’s mental-health status. The district court found that genuine factual disputes exist as to whether, how, and when Joseph resisted or was subdued. We cannot second-guess the existence of those factual disputes. The video does not discredit Plaintiffs’ view of the facts: Officer Martin saw Joseph jumping over the counter at a spot past the clerk’s location, immediately taking the fetal position, and giving no resistance other than flailing his arms and legs; and, having entered the store later, Officer Costa saw Joseph maintain that state. And the officers cite no authority to support their contention that disputed facts demonstrating a suspect’s resistance are legally irrelevant—indeed, the cases uniformly treat a suspect’s resistance as material.
Force must be reduced once a suspect has been subdued.58 Notably, “subdued” does not mean “handcuffed.” If the suspect lacks any means of evading custody—for example, by being pinned to the ground by multiple police officers—force is not justified.59 So even if Joseph failed to comply and struggled against the officers at certain points throughout the encounter, that resistance did not justify force indefinitely.
If Gretna, Louisiana, rings a bell for you it might be because in 2019 two of their police officers were fired after threatening Rep. Alexandria Ocasio-Cortez’s life on social media. Those two bad guys with guns were angry about a completely fabricated report that Rep. Ocasio-Cortez had said U.S. soldiers were paid too much. It seems that the standards of reality for Gretna police officers is not very high these days—just based on the facts, of course.
As Judge Willet eloquently says in the decision, “We are entitled to count on law enforcement to use no more force than necessary. And we are entitled to enforce that standard as a matter of constitutional law when officers fail to honor it.”
Here are the names of the officers who either actively participated in the brutalization of Kendole Joseph, or were complicit in doing nothing to stop it:
From Daily Kos at Read More. This article is republished from DailyKos under an open content license. Read the original article at DailyKos.