“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fifth Circuit judge Kurt Engelhardt wrote a 2-1 decision that reversed a district court and granted qualified immunity to police officers who forcibly threw a black man who was not resisting to the ground and beat him before arresting him for driving without having working brake and license plate lights. The May 2021 decision was in Tucker v City of Shreveport.

Gregory Tucker, a black man, was driving in a business area in Shreveport, Louisiana when he heard and saw a police car pursue him with lights and sirens. Officer Chandler Cisco had observed that Tucker’s car did not have working license plate and brake lights. Tucker continued to drive, without speeding, for about two minutes until he reached a residential area, and then pulled into a driveway. As explained in a detailed district court decision, Tucker left his vehicle as instructed, went to Cisco’s car, submitted to a brief pat down that resulted in the removal of a small pocket knife, and repeatedly asked why he had been stopped.  Tucker was not told he was under arrest. Two other officers arrived and, within “[f]our seconds,” Cisco and Officer William McIntire “forced Tucker onto the ground where he hit his head.” A “struggle ensued with the officers repeatedly punching and striking Tucker, ostensibly in order” to arrest him. Based on video evidence, the district court noted that although Tucker had been “very vocal” during the encounter and was objecting to his treatment, the tone of his voice “notably changes” after the beating began and “it becomes the plaintive sound of a man in pain.” Tucker was taken to a hospital for cuts and bruises, and maintained that the incident caused “additional injuries,” such as “headaches, a swollen face,” knee injuries, and “fear of being killed by the police.” He did not dispute the traffic charges against him, but filed a federal civil rights lawsuit for the excessive force used.

The police officers claimed they were protected from any liability by qualified immunity, but the district court concluded that there were clearly facts in dispute and that a reasonable jury could find in favor of Tucker, and rejected summary judgment for the officers. On appeal, however, Trump judge Engelhardt reversed and  ruled that the case against Cisco, McIntire, and the other officers should be dismissed without a trial and that they should receive qualified immunity. Although conceding that it was clearly established at the time of the incident that “violently slam[ming]” someone like Tucker “who is not actively resisting” to the ground is a “constitutional violation,” Engelhardt claimed that previous caselaw did not “squarely govern” Tucker’s case because of some “particular facts.” Specifically, Engelhardt asserted that “reasonable officers would debate” whether the takedown was “excessive” because there was “slight movement in Tucker’s left arm” as it was grabbed by police, and Tucker “continued driving for a couple minutes” into what McIntire considered a “high-crime area.”  Similarly, although conceding that it was”regrettable” that Tucker suffered injury, Engehardt claimed that it was not obvious from “clearly established law” that the officers improperly punched and beat Tucker on the ground, and they should recevie immunity for that conduct as well.

Judge Stephen Higginson strongly dissented. Based on prior case law and the disturbing video footage of what happened, Higginson explained, there were clearly “fact issues” as to whether the officers were justified in the “sudden, violent takedown” and “repeated physical blows and open kicks” of Tucker “while prone and unarmed and surrounded by officers.” The law is “clearly established,” Higginson continued, that such “violent physical force” against someone like Tucker who was “not actively resisting arrest” is a “constitutional violation.” Although a jury might decide that the officers were “entitled” to immunity, he went on, “a jury must first resolve” the fact issues and it was wrong to grant summary judgment to the officers without a trial.

Higginson concluded by expressing the “hope” that his disagreement with Trump judge Engelhardt’s opinion at least  “highlights the importance” of qualified immunity and “violent police-citizen encounters.” It is “not our role to second-guess,”  Higginson pointed out, a district court’s judgment about the need for a jury to resolve factual disputes about “excessive force” issues, “specifically why police inflicted such abrupt and steadily escalating violence against this motorist” who simply drove when his “brake light was out.” Instead, he suggested, “careful resolution” of such a “brutal police-citizen” interaction “constitutionally must come” from “citizen peer jurors.” This principle, Higginson went on, is “vital as much for fellow citizens and public trust,” as for “police who respond” to such situations with “professional restraint and seek to be distinguished from those who “do not,” and  whose misconduct is “maliciously unrestrained.”

This case Is yet another example of Trump  judges like Engelhardt  reversing district courts and granting immunity to police who commit official and sometimes brutal misconduct, particularly against minorities. It illustrates the importance of moving as promptly as possible to fill available seats on our federal courts, including one now on the Fifth Circuit, with Biden nominees as we continue our battle for our courts.