From [HERE] A Black man who was approached and beaten by white plainclothes Cleveland officers right outside his own front door filed an en banc petition with the Sixth Circuit Court of Appeals on Wednesday seeking to have his lawsuit against the men reheard by all of the circuit’s judges. That move happened after a three-judge panel ruled that the officers were protected from litigation by “qualified immunity.”

The petition, filed by the NAACP Legal Defense and Educational Fund (LDF) and attorney James Hardiman on behalf of Shane Howse, claimed the court misconstrued the law when granting qualified immunity to the officers and dismissing the lawsuit.

Qualified immunity or “the law of the jungle” is a heavily-criticized legal doctrine developed by the Supreme Court.  It shields police from civil liability for any conduct that does not violate a person’s “clearly established” constitutional rights. But in order for such a right to be “clearly established,” the particular conduct of the alleged violator must have previously been established to such an extent as to place the statutory or constitutional question beyond debate – a subjective, and often times absurdly high bar for plaintiffs to clear.

Howse claimed he had just gotten home from a convenience store and began climbing the steps to his front porch when an unmarked police car pulled up and two plainclothes officers asked if he lived in the house. The officers, Thomas Hodous and Brian Middaugh, said they thought Howse was “lingering suspiciously” and “looked nervous,” so they asked if he was “sure” he lived there. Howse said “something like ‘yes, what the f—’ in response,” prompting one officer to say he had a “smart mouth and a bad attitude.”

The officers then attempted to arrest Howse, who insisted he had done nothing wrong, by bringing him to the ground with a leg sweep and punching him repeatedly in the neck.

Howse was charged with assaulting an officer but the charges were soon dismissed. He then sued the officers for violating his Fourth Amendment rights and committing assault and battery.

In a 2-1 decision last month, the U.S. Court of Appeals for the Sixth Circuit ruled that the officers’ actions were unlawful.  However, the majority said the officers were entitled to qualified immunity – meaning they could not be liable for their actions in a civil lawsuit – because “the unlawfulness of their conduct” had not be clearly established at the time they arrested Howse.

In a petition filed Wednesday, Howse’s attorneys argued that the court incorrectly defined the “clearly established” portion of the qualified immunity test by looking for a case involving Howse’s specific conduct as opposed to the officers’.

“Had the panel majority focused instead on whether the officers’ conduct was ‘clearly unlawful’ in light of established law concerning ‘unreasonable government intrusions,’ it would have recognized that the officers were not entitled to qualified immunity,” the petition stated.

“Rather than look for a case involving an officer who ‘tackle[d] someone who disobeyed an order,’ the Court should have analyzed whether it was lawful for the officer to: (a) accost Mr. Howse on his front porch and tell him he was going to jail, i.e., to arrest him, without probable cause, and (b) to tackle him even though he did not resist, and then punch him twice in the neck. In both respects, Officer Middaugh’s conduct was clearly unlawful.” [MORE]

Specifically, according to the Petition for Rehearing:

On July 28, 2016, at approximately 9:00pm, Shase Howse, then 20 years old, walked from his home in Cleveland, Ohio, to a nearby convenience store. Mr. Howse returned home and was standing on his front porch, talking on the phone with his mother. He was about to open the front door with his key when a man in plainclothes, riding in an unmarked car—later identified as Detective Brian Middaugh—asked Mr. Howse, “Is this your house?”

All parties agree that Mr. Howse had not committed any crime. Mr. Howse responded, “Yes, this is my house, I live here.” Id. The car started to pull off, but the questioning officer told the driver to back up.

The man then asked Mr. Howse a second time whether that was his house; Mr. Howse responded by saying, “Yes, . . . what the f---?”

According to Mr. Howse, the man in the car responded by saying, “You have a smart mouth and a bad attitude.”

Detective Middaugh exited the car and asked again if Mr. Howse lived there. Mr. Howse responded, “yes, I live here. I live here.”

At that point, without any provocation, Detective Middaugh told Mr. Howse to put his hands behind his back because he was going to jail.

Mr. Howse responded, “[N]o, I live here. I am going home. I am not doing anything.”

Detective Middaugh walked onto the porch and grabbed Mr. Howse, at which point Mr. Howse screamed at the top of his lungs, “I live here. I live here.”

Detective Middaugh responded by throwing Mr. Howse to the porch floor and attempting to handcuff him, but Mr. Howse stiffened his body to avoid being handcuffed.

At this point, Mr. Howse’s mother arrived, asked the officers what they were doing, and identified Mr. Howse as her son.

Mr. Howse heard his mother’s voice and looked up to her, and Detective Middaugh punched him twice in the neck. Mr. Howse never attempted to hit, knock over, or push Detective Middaugh and remained nonviolent. The detectives handcuffed Mr. Howse, lifted him from the porch floor, and put him in the back of the patrol car. Mr. Howse suffered a bruised neck and scratches from the officer tackling and punching him.

Although Mr. Howse had personal identification confirming his address in his pocket, the officers never asked to see his identification.

Next, the detectives transported Mr. Howse to central booking in downtown Cleveland, where Detective Middaugh completed a complaint charging Mr. Howse with assault and battery of a police officer. R29-5, Exh., 736. Detectives Middaugh and Hodous also completed “Use of Force” reports asserting that Mr. Howse resisted arrest and struck the officers. R37-2, Exh., p. 866; R37-4, Exh., p. 881. Mr. Howse spent three days and two nights in jail before his mother secured his release by posting a $1,000 bond. [MORE]