Judge Reeves’ Masterful Advocacy

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.

17 thoughts on “Judge Reeves’ Masterful Advocacy

  1. Keith

    I found the beginning to be strong, stirring and inappropriate for the opinion.

    Not because it’s bad (to the contrary, it’s terrific), but because it’s unrelated to the case and controversy before him.

    The rest, about QI, is a stirring rebuke and worth the hoopla. Why shouldn’t judges tell it like it is? Hardly anybody bats an eye when SCOTUS adds a rhetorical flourish to explain why they’d entertain a new type of action or when a Circuit Judge writes a concurrence to address an issue.

        1. SHG Post author

          They call it a “brief” for a reason, Mort. If you want to be effective, don’t put your reader to sleep.

  2. B. McLeod

    Well, fear not. No lesser an organization than the ABA House of Delegates has now called for the end or substantial curtailment of qualified immunity.

  3. Richard Kopf


    Judge Reeves opinion is a masterpiece. Whether his critique of QI is correct is besides the point from where I sit.

    Whether he should have expressed himself so strongly and elegantly is not question that I think is worthy of much consideration. That is, so long as the discerning reader would also be willing to appreciate, if not agree with, a strong and elegant opinion explaining that QI is a real world solution to an intractable problem frequently characterized by violence.

    A pro-QI opinion might even include footnotes like the following: (a) 48 officers were feloniously killed in 2019; (b) the majority (27 officers) were feloniously killed in the South; (c) 6 were conducting traffic violation stops and 5 were unprovoked; (d) the great majority (40) of dead cops were white while 7 were black. Law Enforcement Officers Killed and Assaulted, 2019, FBI (May 4, 2020).

    As for his position as a district judge, one observes in his opinion an honest acceptance of precedent and that being so he is on firm ground when says, in effect, “but it is wrong, damn wrong.” In doing so, he fully fulfilled his duties as an Article III judge, albeit one on the lowest rung of the federal judicial ladder. (I truly hope that he climbs the ladder to the federal appeals court.)

    All the best.


  4. John Barleycorn

    Well, absolute immunity does have a certain ring to it.

    Too bad illustrations haven’t become a thing yet. The punch line panels might literally start to jump off the pages, if that became a thing…

  5. Bob

    I don’t think it’s effective advocacy, since effective advocacy requires candor. Judge Reeves’s diatribe isn’t going to convince anyone who doesn’t already accept the grossly partisan and misleading descriptions of the incidents he mentions. I’m not even sure what ties the incidents together other than that they’re BLM cause celebres.

    That being said, the point of judges writing opinions is to convince people that they’re ruling the right way. Saying, “I don’t agree with this, in fact I’m basically a partisan hack, but it’s the law so I have to do it” actually lends a lot of credibility to the ruling. Does anyone, no matter what their views, doubt that Judge Reeves would have ruled that way unless he had to? So in that way it’s very effective.

      1. Bob

        Sure it’s about me. But there are a lot of people like me, and there’s a lot of overlap between the folks who are put off by the BLM demagoguery and the folks you need to convince if you want to change the law on qualified immunity.

        Anyway, I wasn’t being completely serious when I said I thought it lent credibility to the ruling. I think parroting these narratives makes Judge Reeves appear* lazy and stupid as well as biased, and I don’t trust the judgment of lazy and stupid people.

        * I don’t actually think Judge Reeves is lazy or stupid, in fact I know he isn’t; but if this was all I’d ever seen of him, that’s what I’d expect.

        1. SHG Post author

          I tend to share your concern about demagoguery, particularly about “everything is racism,” which starts me out from a highly skeptical posture. That said, he overcame my skepticism. YMMV.

          1. Bob

            You were already in favor of abolishing qualified immunity, so what did he have to overcome?

            I can’t get over the abuse of narratives. Maybe I’m just beating a dead horse here, but Judge Reeves leads off with Michael Brown. What does Michael Brown have to do with qualified immunity? I can see how it might have led to a suit being dismissed over his killing, but would it change the result? What does Michael Brown have to do with anything?

            This overreliance on narratives intrudes into the underlying case itself. It’s insinuated that the cop stopped this guy because he was a black man driving a nice car, a Mercedes convertible. Except it was a 12+-year-old Mercedes. I don’t know how much a 2001 Mercedes was worth in 2013, but today the blue book value of a 2008 model of the same car is about $7500. That’s less than half of what a new Hyundai costs. Cops know how much cars cost, because they really do target minorities driving valuable cars; but that cop almost surely knew the 2001 Mercedes was a cheap car.

            The guy was suspected because he had temporary, out-of-state tags, and was driving on I-20, where there’s a huge volume of interstate drug trafficking. Did race have something to do with the cop’s suspicion? On summary judgment, sure. But the make of the car? Give me a break.

            1. Bob

              I forgot to work in there somewhere one of my favorite sayings about Mercedes: it’s the nicest car they make in Alabama.

  6. Chaswjd

    One thing that didn’t come up in the opinion (perhaps because of how the case was plead) was whether the plaintiff had any state law remedies. If the cop had not been a cop, the plaintiff could have had causes of action for trespass on a chattel and false imprisonment. But then state law immunity may also have played a role.

    1. SHG Post author

      So this thing that is highly unlikely to matter is highly unlikely to matter, but since it never came up, you felt compelled to mention it anyway? Got it.

Comments are closed.