The fact pattern is the sort that makes for a good crim law exam, implicating a broad array of bad Supreme Court law designed to facilitate the worst cop in taking action for the worst reasons, not the least of which is the assumption that a black man driving a Mercedes convertible has to be a drug dealer. After all, how else could Clarence Jamison have such a cool car?
The irony is that Judge Carlton Reeves held that the cop, Nick McClendon, was protected by qualified immunity, the judge-made rule superimposed on Section 1983 under the assumption that police were too stupid to not violate people’s constitutional rights in good faith, subsequently worsened when the Supreme Court held that district judges need not address the two prongs of their judge-made escape hatch, that a constitutional right was, in fact, violated, and that the right violated must be “clearly established,” whether sequentially or at all, thus allowing violations of rights to persist, never to be “clearly established” because courts weren’t required to rule on that prong.
But Judge Reeves wasn’t about to let this opportunity be wasted.
Clarence Jamison wasn’t jaywalking.1
He wasn’t outside playing with a toy gun.2
He didn’t look like a “suspicious person.”3
He wasn’t suspected of “selling loose, untaxed cigarettes.”4
He wasn’t suspected of passing a counterfeit $20 bill.5
He didn’t look like anyone suspected of a crime.6
He wasn’t mentally ill and in need of help.7
He wasn’t assisting an autistic patient who had wandered
away from a group home.8
He wasn’t walking home from an after-school job.9
He wasn’t walking back from a restaurant.10
He wasn’t hanging out on a college campus.11
He wasn’t standing outside of his apartment.12
He wasn’t inside his apartment eating ice cream.13
He wasn’t sleeping in his bed.14
He wasn’t sleeping in his car.15
He didn’t make an “improper lane change.”16
He didn’t have a broken tail light.17
He wasn’t driving over the speed limit.18
He wasn’t driving under the speed limit.19
No, Clarence Jamison was a Black man driving a Mercedes
The numbers after each assertion relate to the footnotes in Judge Reeves’ opinion, and I’ve left them in so that there is no doubt that each is an accurate reflection of what happens in real life. Most will be familiar to readers here. If not, it’s not important. Judge Reeves barely scratched the surface.
No, the elimination, or perhaps reform, of qualified immunity won’t end racism, won’t prevent cops from violating people’s constitutional rights, and won’t cure what ails criminal law. As is the norm these days, it’s importance is overhyped as it’s pounded by some of its advocates who should know better, and many more who know almost nothing, as the cure for police misconduct.
But that doesn’t mean it isn’t wrong, fundamentally bad law that doesn’t significant harm by depriving people whose rights have been violated, who have suffered harm as a result of that violation, from obtaining compensation. It’s not as good as people not having their constitutional rights violated in the first place, but once that’s happened, it’s the best the law can do. Except that qualified immunity, the judge-made doctrine imposed on a law that should entitled the victim of police misconduct to obtain compensation, gets in the way.
Judge Reeves did something that some judges will find distasteful and inappropriate. Not that they will quibble with his holding, as the cop won the point, but he took the opportunity to make an exceptionally strong argument against the doctrine. Is that a judge’s job? Should a judge be an advocate against laws, against doctrines, with which he disagrees? What if he disagrees to the point where he will do his duty and follow precedent, but he cannot, in good conscience, do so without making clear his disdain for the state of precedent?
There have been some judges who haven’t let precedent get in their way when it comes to what they believe to be bad law. In the Eastern District of New York, Judge Jack Weinstein was never shy about giving the Circuit or the Supreme Court a piece of his mind. And if they reversed him, as they often did, it didn’t bother him a bit.
That’s one of the benefits to judges getting life tenure, not to mention being a senior judge so that there’s no kissing up to pols in the hope of someday being nominated to the bigger bench. Judge Weinstein knew he was never leaving EDNY, so he had nothing to lose, giving him the freedom to rule the way he thought correct and not let a reversal cause him to lose sleep.
Other judges felt similarly, but chose to leave the bench rather than be pawns in a game they no longer wanted to play. John Gleeson did so, as did Kevin Sharp. Much as one can admire their integrity, walking away from the problem never struck me as the effective move. Expressing one’s view on the law with the word “judge” before one’s name tends to mean a lot more than “former judge.”
Adherence to precedent is a foundational doctrine of our legal system. Lower courts follow the rule of superior courts, for anything else would produce legal inconsistency that would make the system unworkable and leave us incapable of knowing what the rule of law by which we should conduct ourselves to be. Yet, it didn’t always concern Judge Weinstein, and doesn’t seem to bother his Circuit superior when it comes to Heller and McDonald, where the Second Circuit has consistently goaded the Supreme Court to reverse them.
Judge Reeves, however, didn’t flaunt his disdain for precedent. He applied it, even if his application is arguably open to dispute. Rather, he made clear his position on the merit of the rule of law he applied. Is this the right way for a judge to rule, using an opinion (with smattering of pop references to make it interesting) to advocate for the change he thinks proper, or does this undermine the integrity of the least dangerous branch by reflecting a division that encourages disapproval of the law as higher courts have ruled? Like Judge Weinstein, Judge Reeves doesn’t appear to give a damn and made his position clear in a remarkable work of advocacy. If one has life tenure, it would be a shame to waste it.