Special Report-Challenging police violence ... while Black

[December 23, 2020]  By Andrea Januta, Andrew Chung, Jaimi Dowdell and Lawrence Hurley

(Reuters) - Luke Stewart was sleeping in his car in Euclid, Ohio, when police came upon him. Moments later, he lay dying from gunshot wounds to his chest and neck.

Clayton Dobbins looked suspicious to the Irving, Texas, officer who saw him riding his bike in his own neighborhood. He was chased down, shocked with a Taser and jailed.

Shase Howse raised cops' suspicions by fumbling for his keys while standing on his front porch in Cleveland. He was slammed to the ground, handcuffed and jailed.

None of these three men were breaking the law when they drew the attention of police. None were armed. All were black.

Encounters like these, occurring across the United States, inform persistent complaints that racial bias poisons policing in the country — complaints that coalesced into a mass movement for policing reform after the May 25 death of George Floyd under the knee of a Minneapolis cop.

A growing body of research supports the perception that police unfairly target Black Americans. They are more likely to be stopped, searched and arrested than their white compatriots. They also are more likely to be killed by police.

The aftermath of each of the three incidents examined for this article followed a common pattern. The officers who killed Stewart and roughed up Dobbins and Howse said the force they used was appropriate because the men ran, resisted or otherwise didn’t follow orders. The officers – all of them white – were cleared of wrongdoing by their departments. Local prosecutors brought no charges against them.

But Stewart’s family, Dobbins and Howse all felt wronged and hoped to hold the police accountable. The men didn’t comply, they said, because they had no idea why police engaged with them in the first place, and as Black men, they were justifiably frustrated or afraid or both. As Stewart’s mother, Mary, put it: “Luke wasn’t doing anything illegal, and now he’s dead … It was racism. It was police brutality.”

She and the others sued the police, accusing them of excessive force, a civil rights violation. The lawsuits they filed were made possible under an act of Congress passed 150 years ago for the purpose of protecting Black Americans from abuses by state and local authorities in the post-Civil War years.

Yet judges tossed out all three claims — before any jury had a chance to review the evidence — because the police involved were protected by a once-obscure legal doctrine that has become a flashpoint in this year of racial unrest: qualified immunity.

Crafted by the U.S. Supreme Court half a century ago, qualified immunity was meant to protect officials from costly and frequent litigation. In the view of critics across the political spectrum, it has evolved into a powerful defense that shields police from being held accountable for excessive force.

In effect, they say, qualified immunity denies Black people the recourse to justice provided by the 1871 law and enables violent police behavior that has a disproportionate impact on them.

Civil rights laws are meant “to protect Black people specifically or just people who are marginalized more generally, so the burden of qualified immunity will fall more heavily on those groups,” said Scott Michelman, an attorney with the American Civil Liberties Union in Washington, D.C. “If there was accountability, that might act as a significant check on police behavior. Qualified immunity prevents that.”

Michelman recently represented a homeless Black man whose claim that cops used excessive force when they set a police dog on him after he surrendered was thrown out based on qualified immunity.

In May, Reuters revealed how qualified immunity has made it harder in recent years for plaintiffs to win excessive force lawsuits, even when courts determine police actually used such force. The main reason: the Supreme Court’s directive that police be granted immunity unless the specific circumstances of the incident were “clearly established” as illegal in a previous case, regardless of whether police actually violated the plaintiff’s rights. Lack of such precedents is what sank the Stewart and Howse lawsuits.

Law enforcement professionals and political conservatives argue that qualified immunity is essential for police to make quick decisions in dangerous situations. Without it, they say, police couldn’t do their jobs. Data on policing, they say, doesn’t show racial bias, but rather, law enforcement’s focus on areas with higher crime rates, which also happen to have larger minority populations.

“I do not support any contention there is systemic bias in policing,” Jim Pasco, executive director of the National Fraternal Order of Police, the largest U.S. police union, told Reuters. “Unfortunately, because of the historic racism within government in the United States, we have gotten to a point where the economic disparities between white America and Black America are dramatic. With the poverty that’s sadly part of the Black experience in many parts of the United States comes a higher level of criminal activity.”

A 2016 study by the Center for Policing Equity at Yale University, however, showed that police use force disproportionately on African Americans even after taking racial disparities in crime into account. And in a Pew Research Center national survey of police in 2016, 92% of white cops said the country had done enough to ensure equal rights for Black people, compared to 57% of whites overall who said so.

The steady stream of headlines about Black Americans killed by police has fueled demands for broad reforms, including ending or revising qualified immunity. So far, reform initiatives have stalled in Congress amid partisan gridlock, and the Supreme Court has batted away several cases challenging qualified immunity. In the absence of action, lower-court judges, legally bound by the doctrine, have become some of its most vociferous critics — particularly for its effect on the Black community.

In August, Judge Carlton Reeves of the U.S. District Court for the Southern District of Mississippi tore into qualified immunity in a scathing 72-page opinion that began by listing George Floyd, Breonna Taylor and other Black Americans recently killed by police. He was ruling on a lawsuit against an officer who pulled over a Black man in a Mercedes, detained him for nearly two hours while tearing up the car in a fruitless drug search, and then left him on the side of the road.

Reeves granted immunity to the cop because no precedent clearly established his actions as illegal, but the judge made it clear that he felt the doctrine was unjust. “Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal’ ” – the concept the court used for decades to justify racial segregation laws – “so too should it eliminate the doctrine of qualified immunity,” Reeves wrote. “Let us waste no time in righting this wrong.”

“WHY ARE YOU IN MY CAR?”

In the cold, predawn gloom of March 13, 2017, Luke Stewart was sleeping in his car along a residential street in Euclid, Ohio, when a loud rapping startled him awake.

No one knows exactly why the 23-year-old was there, parked near a friend’s house where he sometimes stayed. He had been drinking, and family and friends assume that when he couldn’t reach his friend, he decided that his car was probably “the safest place to be,” his sister Terra told Reuters.

Stewart opened his eyes to bright lights shining in on him and quickly started the 2003 Honda Accord. As he moved to put it in gear, two men, without identifying themselves, opened the doors on either side.

The two men were Euclid Police Department Officers Louis Catalani and Matthew Rhodes, who later recounted the incident to investigators and in depositions.

On the driver’s side, Catalani grabbed Stewart and tried to pull him out of the car. Rhodes slid in on the passenger side to help Catalani just before the car started creeping forward. Catalani followed on foot.

“Why are you in my car?” Stewart asked Rhodes.

Rhodes punched Stewart repeatedly in the face to get him to stop the car. Stewart didn’t comply. Nor did he fight back. With each blow, he just said, “Naw n—a.” Rhodes shocked Stewart with a Taser and then struck him with the stun gun, opening a gash in Stewart’s head. Stewart still did not fight back.

Only after Rhodes took out his Glock 17 pistol and shot Stewart twice in the chest did the young man take a swing at the cop. Rhodes shot Stewart again, this time in the neck. Stewart slumped backward, his eyes glazing over. A fourth shot pierced Stewart’s wrist. The car came to a stop.

“Fuck!” Rhodes yelled as he got out. “He wouldn’t fucking stop!”

The Accord had traveled less than two blocks in a little more than a minute.

When the two cops first engaged with Stewart, they were responding to a report from an area resident of a “creepy looking car” parked near her house.

Catalani, arriving first, had spotted inside Stewart’s car a bottle cap for some “cheap gas station” wine, a digital scale, and what he thought was a marijuana blunt — later identified by investigators as a cigarette. Based on what he saw, Catalani said in his deposition, he suspected that, though Stewart wasn’t doing anything illegal, he could be impaired or in possession of marijuana. The officers agreed they had to pull Stewart from the car.

The medical examiner’s report said Stewart had a blood-alcohol level three times the legal limit when he died. A Euclid Police Department investigation cleared the officers of any wrongdoing in Stewart’s death. After hearing an Ohio Bureau of Criminal Investigation report on the incident, a grand jury declined to indict them.

Stewart’s family and friends weren’t satisfied. “He wasn’t perfect, but he was perfect enough for me,” Stewart’s mother, Mary, a 65-year-old U.S. Postal Service retiree, said of her son, the father of two young children who got by on landscaping, snow removal and other odd jobs.

In October 2017, Mary Stewart filed suit in federal court in Cleveland, accusing the officers of using excessive force in violation of her son’s rights under the U.S. Constitution’s Fourth Amendment, which prohibits unreasonable searches and seizures.

The lawsuit alleged that the “unconstitutional policies and practices of the Euclid Police Department have resulted in the use of excessive and unconstitutional force against too many people, in particular African American people, including Luke Stewart.” In addition to financial damages, it sought a change to department practices “to bring them into compliance with constitutional standards.”

A TIME OF TERROR

After the Civil War ended, whites unleashed a wave of murder, torture and property destruction against millions of newly freed Black Americans. In the 12 years after the war, more than three Black Americans were lynched every week, on average. Often, local officials enabled and participated in white supremacist groups like the Ku Klux Klan.

To address local officials’ complicity in racial terror, Congress in 1871 passed the Ku Klux Klan Act. Among other things, the law allowed civilians to sue government officials in federal court to hold them liable for civil rights violations.

Nearly a century later, at the height of the civil rights movement, a group of activist clergymen filed one of these lawsuits against police who arrested them after they entered a “whites only” section of a bus station in 1961. When the case ended up at the Supreme Court, the justices ruled in 1967 that cops could not be held liable for civil rights violations if they were found to be acting in “good faith” in following what they thought to be the law. Qualified immunity, as the doctrine would come to be called, was born.

As Mary Stewart’s federal excessive force case proceeded, it yielded troubling revelations supporting her allegations about Euclid Police Department practices. A training presentation that both Rhodes and Catalani had received included an illustration of an officer in riot gear striking a person lying on the ground, alongside the caption, “protecting and serving the poop out of you.” There was also a link to a video by comedian Chris Rock, titled “How to not get your ass kicked by the police.”

In 2018, Judge James Gwin decried the department’s “tasteless, irresponsible frivolity with regard to the use of force.” He nonetheless granted the officers immunity. He accepted Rhodes’ claim that he was justified in killing Stewart because he feared for his life — in case Stewart crashed the car or kidnapped him.

Gwin dismissed all of Stewart’s claims. The judge did not respond to a request for comment.

Mary Stewart appealed to the 6th U.S. Circuit Court of Appeals in Cincinnati. In August this year, that appellate panel partly disagreed with the lower court, saying a jury could find that Rhodes’ use of deadly force did violate Luke Stewart’s rights. But it still upheld immunity for Rhodes on “clearly established” grounds: No prior case affirmed that it was illegal for an officer to use deadly force while riding in a suspect’s vehicle.

One of Stewart’s lawyers, Sarah Gelsomino, said the case illustrates how qualified immunity enables police brutality. “The police create the danger. They create a situation that they rely upon to justify the use of force,” she said. “Then the law protects them … It’s really an impediment to justice.”

The Euclid Police Department declined to make Rhodes or Catalani available for comment. Captain Mitch Houser, a department spokesman, said each officer remains in good standing and has an “excellent service record.” Houser said the department’s training materials have since been modified.

Citing the Stewart case and others, local activists last year asked the U.S. Department of Justice (DOJ) to investigate the Euclid Police Department for its “pattern of excessive and deadly force, police brutality, and intimidation.” They never received a response.

A family photo including Luke Stewart hangs in Mary Stewart's house in Cleveland, Ohio, U.S., November 11, 2020. Picture taken November 11, 2020. REUTERS/Megan Jelinger

The DOJ did not respond to requests for comment.

Under President Barack Obama, the DOJ entered into agreements with at least eight cities and counties, including New Orleans and Baltimore, that compelled them to address racial discrimination and other abuses found in its investigations of their police departments. Such investigations all but ended after the election of President Donald Trump. President-elect Joe Biden has pledged to expand the department’s power to address police misconduct.

“I'M NOT DOING ANYTHING”

Black Americans are more heavily policed than their fellow citizens. In a study published this year, researchers at Stanford University and New York University found that Black drivers were more likely to be stopped while driving – but less so at night, when their skin color wasn’t as apparent. The same study found that Black drivers were more likely to be searched after a stop, though searches turned up illegal contraband more often for white drivers. A 2019 study published by the National Academy of Sciences found that Black men were about 2.5 times more likely to be killed by police than white men.

For Black men, in particular, their mere presence attracts police suspicion — for appearing out of place in tranquil, low-crime communities, or for being perceived as part of the problem in high-crime areas, said Rod Brunson, professor of criminology at Northeastern University. “Black men find it difficult if not impossible to present themselves as law-abiding, regardless of the context,” he said.

The outsize presence of police in Black lives has inspired an American idiom: driving, or walking, or shopping — or any harmless everyday activity — “while Black.”

When Clayton Dobbins was stopped for riding his bicycle while Black, he already had several police encounters under his belt.

When he was a boy of about 12 in Chicago, Dobbins said in an interview, a cop put a gun to his head and demanded information about a murder Dobbins knew nothing about. Later, while living in the Portland, Oregon, area, he filed two complaints of excessive force against local law enforcement, according to his deposition in his excessive force lawsuit. In 1982, he alleged an officer twisted his arm behind his back during a stop. And in 1991, he alleged an officer pulled him over and roughed him up after mistaking him for a suspect in a shooting. He said he received no response to either complaint.
 

Dobbins and his wife had been living in their house in a quiet subdivision in Irving, Texas, for seven years when the then-59-year-old slung on a backpack and set out on his bike that hot, sunny July day in 2014 to make a mortgage payment.

He hadn’t gone far when Irving Police Department Officer Craig Martin pulled his patrol car over to block Dobbins. Martin rolled down his window, rested his sunglasses on the top of his head, and looked at Dobbins with an “impish smile,” according to Dobbins’ deposition in the lawsuit he later filed.

Dobbins greeted Martin, who then asked if Dobbins lived in the area.

“What do you mean?” said Dobbins, an electrician between jobs.

“I’ve never seen you before,” Martin said.

Dobbins, now afraid that Martin had targeted him because he was Black, pedaled away.

Martin’s dashboard camera video shows the cop car following Dobbins along the street in bright summer sun. “Pull over,” Martin demands from the car. “You ran a stop sign,” he shouts.

Dobbins keeps pedaling.

Martin yells: “You’re under arrest.”

“What for?” Dobbins shouts back.

Martin speeds up, stops and chases Dobbins out of the dashcam’s view. Martin is then heard ordering Dobbins to get on the ground. “I’m not doing anything. You asked me where I live,” Dobbins says. He then cries out as Martin shocks him with a Taser.

Martin initiated the encounter after he spotted Dobbins “at a suspicious place at a suspicious time,” according to the officer’s deposition. “It’s not normal to see an individual on a bicycle with a backpack leaving the area of an open garage where I’ve had property crimes.”

Martin charged Dobbins with evading the police and running a stop sign with his bike. Dobbins spent several days in jail before his wife posted bond.

Dobbins told Reuters that when he later went to the Irving Police Department to file a complaint, officers told him he couldn’t submit one because of the charges against him. Reuters could not independently confirm Dobbins’ account of the exchange.
 

Les Moore, a lawyer for the Irving police, disputed that. “We routinely receive and investigate complaints from persons who have been arrested and charged with criminal offenses.” Moore noted that supervisors reviewed Martin’s incident report and evidence and “determined the use of force to be lawful.”

The Irving Police Department declined to make Martin available for comment.

Local prosecutors dropped the evading arrest charge, and Dobbins pleaded no contest to the traffic violation. But Dobbins felt he had been racially profiled and decided to sue.

“I’ve got to be able to leave my own house and not look suspicious. What suspicious nature would I have leaving my own house, locking my door?” he said. “I was hunted.”

Dobbins filed a federal excessive force lawsuit against Martin in February 2016 in the Northern District of Texas.

Martin requested immunity, and in May the following year, Judge David C. Godbey granted it. “The Court acknowledges the frustration Dobbins felt upon being stopped while leaving his own home,” the judge wrote, but he ruled that the officer’s use of force was reasonable, given Dobbins’ failure to stop and obey commands.

Godbey declined to comment.

Dobbins’ lawyer, Scott Palmer, wasn’t surprised. “We let the clients know that the law is not on our side. Qualified immunity – in part – makes it almost impossible” to get justice, he said.

In an analysis of excessive force lawsuits in which cops requested immunity in federal courts in California and Texas, the two most populous U.S. states, Reuters found no significant differences in outcomes by the plaintiff’s race. In fact, white plaintiffs had a slightly harder time clearing the immunity hurdle than Black plaintiffs.

However, the same data underscores the disproportionate burden that violent interactions with police place on Black citizens. Black plaintiffs made up 22% of cases involving a death or severe injury — more than twice their share of the combined population of California and Texas. White plaintiffs made up 33% of such cases, slightly less than their share of the states’ population.

“THIS IS MY HOUSE. I LIVER HERE.”

Opponents of qualified immunity fault the Supreme Court for diminishing Americans’ Fourth Amendment protections against excessive force with a series of rulings that have favored police. Similarly, they say, the high court has chipped away at Fourth Amendment protections against unreasonable stops and searches.

The U.S. government’s decades-long “war on drugs” has spawned several cases challenging cops’ ability to stop and search civilians on suspicion of carrying contraband. Taken together, the justice’s rulings have only expanded police officers’ right to stop and search people without probable cause or a warrant.

In the span of just a few minutes on the night of July 28, 2016, Shase Howse was stopped twice, by two different sets of Cleveland cops.

Then 20 years old, the slightly built self-described homebody spent his time working at a pizza shop and playing video games in the house he lived in with his mother, in a poor, mostly Black neighborhood dotted with boarded-up houses along streets with broken pavement.

Around 10 p.m., Howse decided to take a break from his PlayStation to go “grab a Mild”– referring to Black & Mild, a brand of cigar — at Moe’s, a convenience store around the corner.

As he left the shop, two cops pulled up beside him and asked him if he had any weapons on him.

“No,” Howse replied.

One officer got out of the car, patted Howse down, reached in his pockets, and sent him on his way. Howse headed home.

Standing on his front porch, he thought he had forgotten his key. He phoned his mother, who was out on a bike ride, as he fumbled in his pockets.

“Is that your house?” a voice called out.

It was Detective Brian Middaugh, on patrol with two other Cleveland police officers in an unmarked car idling at the curb.

“Yes, this is my house. I live here,” Howse responded calmly, though still upset from his earlier encounter with police.

Middaugh questioned him again. Howse snapped back: “Yes, I live here. What the fuck?”

Middaugh and another officer, Thomas Hodous, got out of their car and walked onto the porch. Howse’s and the officers’ accounts of the ensuing encounter differ.

Howse testified that he was yelling to the officers that they had no right to stop him from entering his own home just as Middaugh slammed him to the concrete. Pinned down, Howse held himself rigid to prevent the officers from handcuffing him, he said, and that’s when Middaugh delivered two powerful blows to his neck. Howse’s mother, who had returned moments earlier, backed her son’s account in her testimony.

Middaugh told investigators that Howse became irate and refused to put his hands up, and when the two officers tried to grab him, he fought back, pushing them and grabbing for their handcuffs and flashlight holders. Middaugh said that’s when they took down Howse — but never struck him.

The officers testified that they initiated the encounter when they saw Howse milling about a house that looked abandoned. Howse raised their suspicions, they said, because he was taking too long to open the door, and he seemed nervous, glancing back and forth.

Howse was charged with assault and spent two nights in jail before his mother posted bond. The charges were later dropped — at Middaugh’s suggestion. Though “I was the victim in this circumstance,” Middaugh later testified, “I just kind of felt like this was an opportunity to give this kid a second chance and do something right.”

Middaugh, who resigned from the Cleveland Division of Police last February, declined to comment. A department spokeswoman declined to comment or to make Hodous available for an interview.

James Hardiman, a lawyer for Howse, filed a misconduct complaint against the officers with the city’s Civilian Police Review Board. When he got no response, Hardiman filed suit on July 21, 2017, alleging that Middaugh and Hodous used excessive force, and that the incident reflected a pattern of misconduct against African Americans in the Cleveland Division of Police.

Not until last year did the review board conclude that the case lacked enough evidence for a determination, said Roger Smith, administrator for Cleveland's Office of Professional Standards, which handles such complaints.

“The fact that nothing was done absolutely was part of the inspiration for pursuing the lawsuit,” Hardiman told Reuters. Howse is “just another Black man in a high crime area who got mistreated by the police.”

Howse’s lawsuit noted that Cleveland was one of the cities operating under a consent decree with the DOJ, which had found widespread use of excessive force by the city’s police.

Last year, Judge Donald Nugent granted the officers’ request for immunity, saying that they used no more force than was needed. He also rejected the claim of racial bias in the Cleveland police.

Two years earlier, Nugent ruled in favor of Middaugh in another excessive force case. In that one, a Black plaintiff alleged that Middaugh and other officers choked him, put a gun to his head and forcefully handcuffed him after responding to a call about a group of armed men. Middaugh denied any wrongdoing in that encounter.

Nugent did not respond to a request for comment.

Howse appealed Nugent’s ruling to the 6th Circuit. In March, the court chose not to consider whether the police violated Howse’s rights, but only whether there was any “clearly established” precedent confirming that it was illegal for Middaugh to tackle someone who disobeyed an order and refused to be handcuffed. There wasn’t, the court decided.

The NAACP’s Legal Defense and Education Fund has appealed the case to the U.S. Supreme Court – a long shot, based on the court’s recent record of declining to take up such cases.

Howse now lives with cousins in a different part of Cleveland. He said he meditates daily, partly to ease the trauma that lingers from that night four years ago. As is too often the case, the police saw a threat in him that did not exist, he said, but “I was just going into my own house.”

(Reporting by Andrea Januta in Guerneville, California; Andrew Chung in Euclid, Ohio; Jaimi Dowdell in Los Angeles; and Lawrence Hurley in Washington, D.C. Edited by John Blanton and Janet Roberts)

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