In a case that cites George Floyd’s death, a federal appeals court has reinstated charges against five West Virginia police officers who placed a black homeless man in a chokehold, then shot him 22 times while he allegedly laid prone on the ground.

“Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis,” said a unanimous three-judge appeals court panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, in reinstating charges against five police officers in Tuesday’s ruling in Estate of Wayne A. Jones et al. v. The City of Martinsburg, West Virginia et al.

The panel affirmed dismissal of a claim against Martinsburg in the shooting.

In 2013, Wayne Jones, a homeless black man who had been diagnosed as schizophrenic, was stopped by a police officer in Martinsburg for walking alongside, rather than on, the sidewalk. The incident escalated to the point where he was put in a chokehold by police officers.

As he lay on the ground, one of the officers shouted that Mr. Jones had a knife, which was later determined to be a small fixed blade knife tucked into his right sleeve.

While Mr. Jones lay motionless on the ground and did not respond to demands he drop the knife, five police officers fired 22 rounds at Mr. Jones, causing 23 wounds and killing him where he lay on the sidewalk.  “Most of the bullets entered Jones’s back and buttocks. Jones died shortly before midnight,” said the ruling. 

One or two of the shooting officers called for emergency medical services but none of them rendered any aid, said the ruling.

Mr. Jones’ estate filed suit against the police officers and the city one month later. The latest ruling is the third appeal in the lengthy case.

“For the first time, we consider whether the five officers who shot and killed Jones as he lay on the ground are protected by qualified immunity,” said the ruling, in overturning the ruling by the U.S. District Court in Martinsburg.

“First, the officers are not protected by qualified immunity because, viewing the evidence in the light most favorable to the Estate, Jones was secured before he was shot. A reasonable jury viewing the videos could find that Jones was secured when he was pinned to the ground by five officers.”

Although Mr. Jones having a knife was “problematic” for the estate, “these admitted facts do not preclude a jury from finding that he was secured,” said the ruling.

“Given the relatively inaccessible location of the knife, and the physical inability to wield it given his position on the ground, the number of officers on Jones, and Jones’ physical state by this time, it would be particularly reasonable to find that Jones was secured while still armed.”

“Even were it to find that Jones was not secured, a jury could still reasonably find that he was incapacitated by the time of the shooting.  Jones had been tased four times, hit in the brachial plexus, kicked, and placed in a chokehold, at which point gurgling can be heard on the video. A jury could reason infer that Jones was struggling to breathe,” said the ruling.

The officers contend Mr. Jones “should have dropped the knife upon their commands, and that his failure to do so places his shooting in the gray zone where qualified immunity applies.

“But again, the fact that he did not move or respond corroborates that he was incapacitated, and the reasonable officer would have recognized that fact,” the ruling said.

“The defendants portray Jones as a fleeing, armed suspect, who was not cooperating with law enforcement and had even reportedly ‘hit’ an officer, displacing that officer’s hat.

“Non-cooperation with law enforcement has never given officers carte blanche to use deadline force against a suspect; luckily for many of us, neither has being armed with a small knife.

“Jones were not an armed felon on the run, nor a fleeing suspect luring officers into a high-speed car chase. Jones was walking in the road next to the sidewalk, away from the dark shadows and blind corners of buildings at night. He was without housing and had a knife on his person. As a pedestrian, he should have been on the sidewalk,” but he was never told that by the first police officer who encountered him, said the ruling.

“Jones took off on foot but quickly cornered himself in a bookshop stoop. What we see is a scared man who is confused about what he did wrong and an officer that does nothing to alleviate that man’s fears.  That is the broader context in which five officers took Jones’s life.”

“To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept,” said the ruling, in overturning the lower court’s grant of summary judgment on qualified immunity grounds.

The ruling did uphold dismissal of a claim against Martinsburg in the case, stating because “the Estate has not shown deliberate indifference to the need for better or different training on the use of force we do not reach whether any failure in training was the moving force behind the constitutional violation.”

An attorney for Mr. Jones’ estate, Christopher E. Brown, of the Brown Firm PLLC in Alexandria, Virginia, said in a statement, “We are excited and happy that we have the opportunity to finally seek justice for Wayne Jones, as this ruling means we get to go to trial, which is all the family has asked. 

“The family does not expect or demand that the death of Wayne Jones become headline news, but they are hopeful his death will contribute to the momentum being seen right now through protests all over the world in the pursuit of the change and reform that is desperately needed.”

Floyd M. Sayre III, city attorney for Martinsburg, issued a statement that said in part, “The 4th Circuit agreed that there was no evidence that Martinsburg was indifferent to the need for better or different training on the use of force.

“The 4th Circuit determined that a jury would need to resolve whether the officers are liable for excessive force as opposed to that decision being made at the summary judgment stage in this case.”

The statement said also when the matter was referred to the Dept. of Justice’s civil rights division during the Obama Administration, it concluded “there was no evidence documented to support that Mr. Jones’ civil rights had been violated” by the police officers.

“As a result, no federal civil rights charges were brought against any of the officers involved in the incident,” said the statement, which concludes by stating, “The City believes nothing is more serious than the loss of life resulting from an encounter with the police.”