James Craven

On Tuesday, the Fifth Circuit issued its decision in Austin v. City of Pasadena, which correctly reversed a grant of qualified immunity to police officers who responded to a detainee’s epileptic seizure by repeatedly tasing him, thereby allowing a case where a man died in custody to proceed to trial. Although the court’s decision was encouraging and commendable, the facts of the case paint a stark picture of the police culture that has grown out of qualified immunity’s long shadow.

In 2019, Jamal Ali Shaw was arrested by Pasadena police on suspicion of public intoxication and taken to a local jail, where he was placed in detention Cell H. Four hours later, Shaw suffered an epileptic seizure and collapsed to the floor.

Other detainees in Cell H alerted the staff about Shaw’s condition, prompting Officer Joanna Marroquin to call for emergency medical services at 6:16 a.m.. Marroquin and Officer Ryan Whitehead then entered the cell and removed all detainees except Shaw. Video footage revealed Shaw convulsing and foaming at the mouth.

For approximately three minutes, Whitehead and Marroquin attempted to restrain Shaw’s movements, seemingly trying to pin him down. Marroquin then stepped back and used her Taser repeatedly in “drive‐​stun” mode on Shaw’s left side and leg. Shaw rolled away from the officers towards the toilet area and managed to get up. Another officer entered the cell, and Shaw approached Whitehead. Whitehead tasered Shaw in the chest, causing him to fall face‐​first onto the concrete floor. Then a fourth officer arrived and joined the others in attempting to “restrain” Shaw.

The EMTs arrived at 6:26 a.m. but were denied entry to the cell. Their request to transport Shaw on a gurney was dismissed, and the four officers continued trying to subdue Shaw. Shaw fell over, and the EMTs again offered to place him on a stretcher. They were again rebuffed.

At 6:28 a.m., the officers locked Shaw into a restraint chair and transported him to the booking area. Shaw screamed for help. Officials attempted to question Shaw despite his apparent unresponsiveness. Shaw called out for his mother, who had brought his epilepsy medication to the jail in the past. The officers kept Shaw in the chair for approximately 17 minutes.

Finally, the officers assented to handing Shaw over to the EMTs. He was moved to a gurney, handcuffed again, and placed in an ambulance. As the ambulance departed at 6:57 a.m., Shaw experienced cardiac arrest. He died the following day.

In deciding if a lawsuit holding police liable for Shaw’s death could proceed, the Fifth Circuit began with the same inquiry used in most summary judgment proceedings: a review of whether a reasonable jury could find that officers deployed excessive force or delayed emergency medical care. It recognized correctly that there were several junctures in this tragic incident where a reasonable person, conscious of their potential liability if not their own moral principles, would have avoided the sort of actions officers took here.

To begin with, physical restraint is an unconventional initial response to someone experiencing what has already been identified as an epileptic seizure. Tasering a detained individual in the midst of an epileptic seizure is not only unnecessary for safety but also highly unlikely to improve that individual’s well-being—especially if the Taser is deployed while the person is standing and there are no measures in place to prevent their head from hitting the concrete. Denying the assistance of EMTs, in order to place a person undergoing an epileptic seizure in a restraint chair, strays so far from any reasonable notion of aid or safety that it is difficult to comprehend the officers’ rationale.

This is how officer accountability should operate: if a reasonable jury could not possibly conclude that an officer’s behavior was unreasonable, the case should be thrown out to save the court’s resources and the officers’ time. But in cases like this one, where reasonable individuals could conclude that the officers acted unreasonably—even from the officers’ heat‐​of‐​the‐​moment perspective—the case should proceed to trial.

But it is highly unlikely that the unreasonable acts of these four Pasadena officers were simply irrational. Their reckless disregard for Jamal Ali Shaw’s well‐​being was likely due in part to a belief that, as police officers, they would not be held liable for their actions.

This belief is not unfounded. The doctrine of qualified immunity has repeatedly shielded police officers from liability for flatly unconstitutional behavior. It does this by burdening the court’s typical summary judgment assessment about whether a jury could find an officer’s conduct unconstitutional with an additional, unrelated, and arbitrary inquiry.

That second inquiry is the far less sensible “clearly established law” standard of qualified immunity, which paradoxically lacks clarity. Usually, it means that plaintiffs seeking relief must find a factually similar case in the same jurisdiction where another plaintiff was harmed by public officials in almost identical circumstances.

Few people would agree that a police officer shouldn’t even be brought to trial because they were the first officer in their jurisdiction to violate someone’s constitutional rights in a very particular way. And officers never learn this body of case law about what has and hasn’t been held to be unconstitutional misconduct. So it’s likely that the officers in this case had no idea that its haunting similarities to the police encounter that resulted in the death of Tony Timpa would make them vulnerable to a lawsuit. But qualified immunity demands proof of just such a horrible déjà vu in order for any lawsuit against a police officer to go forward. It’s a strange silver lining for the Shaw family that a similar tragedy had already occurred, clearing the way for them to seek compensation for Shaw’s death.

The Fifth Circuit laudably decided that Shaw’s family should be allowed to take their case against these officers to trial. It’s just unfortunate that that decision couldn’t start and end with their thoughtful discussion about the many points where a reasonable juror could find that, even without the benefit of hindsight, the officers were clearly acting unreasonably. Instead, the outcome was contingent on the pure happenstance of there being enough factually‐​analogous case law to satisfy qualified immunity’s “clearly established law” standard.

Congress should eliminate the “clearly established law” standard, which encourages reckless police behavior by creating a culture of unaccountability that disincentivizes officers from thinking rationally about the consequences of their actions. While the thoughtless conduct of these Pasadena officers would not find sympathy among the majority of our nation’s police force, they all bear the burden of the damage caused to their reputation by recurring instances of police misconduct. During a time when police recruitment is challenging, it is more important than ever to take steps to rebuild confidence in the institution of policing and make it a profession that officers can once again take pride in holding.