Let’s get this one straight before it rolls away from us. A certain amount of misrepresentation is going on about the meaning of a federal judge’s recent action dismissing the city as a defendant in a civil lawsuit arising from the Amber Guyger/Botham Jean murder case.
This is not a technicality having to do with whether white former Dallas police officer Amber Guyger was on or off duty on Sept. 6, 2018, when she shot and killed Botham Shem Jean, a 26-year-old black accountant, in his own apartment downtown.
The decision filed Dec. 23 by Barbara M.G. Lynn, chief judge of the U.S. Northern District of Texas, goes straight to a much deeper question about the kind of city that you and I own and operate here as citizens. That verdict is a good one of which we should take serious note before it fades from view.
There were always three defendants. The first was Guyger. The other two were you and me. In the public square if not in court, you and I were accused of owning and maintaining a city with a racist police department that teaches cops, especially the white ones, to “shoot first and ask questions later,” especially when dealing with black people.
Guyger was found guilty of murder and is in prison in the first months of a 10-year sentence. But two days before Christmas, Lynn upheld an earlier federal magistrate’s decision dismissing the charges against you and me and our city.
In a claim already reported by a host of other national media, The Dallas Morning News has offered this explanation of Lynn’s decision: “Legal experts,” the paper reported in a story last week, “said that because Guyger was off duty, a lawsuit against the city was unlikely to be successful.”
Maybe some legal experts said that, but that’s not at all what Lynn decreed by upholding the Aug. 12 decision of U.S. Magistrate Judge Irma Carrillo Ramirez (see below). Ramirez said in her own finding that a civil lawsuit against Guyger and the city brought by Jean’s family had failed to make the case that Jean’s death was in any way the fault of the city or of the Dallas Police Department.
Lynn’s action last week takes Dallas out of the lawsuit as a defendant but does not kill the suit. The lawsuit is still active against Guyger. Lawyers for the Jean family have filed a notice of intent to appeal Judge Lynn’s ruling to the 5th U.S. Circuit Court of Appeals in New Orleans.
The significance of last week’s action shielding the city from the lawsuit is not that it allows Dallas — you and me — to slap hands and walk away with some kind of smug shrug. It’s not as if we have nothing to worry about. Dallas has everything to worry about in the areas of social justice, racial segregation and institutional oppression of people of color.
But in order to get anything real accomplished in those areas, we have to learn to distinguish between legitimate causes and unproven claims. From the very beginning, this lawsuit against the city was an unproven claim.
That’s maybe more a tragedy for the Jean family than for the city. Their own deportment through his terrible saga has been admirable beyond belief. Dallas should continue to hold the Jean family close and look to them as mentors and moral models. It’s not their fault their lawyers didn’t come up with a better lawsuit.
The original complaint against the city, filed in October 2018 by attorneys Daryl K. Washington and S. Lee Merritt, always had a steep hill to climb. The city started out protected from any lawsuit by the principle of sovereign immunity: You can’t sue a city in Texas for carrying out its civic duties.
But you can sue. In order to crack through the immunity shield, Washington and Merritt had to show the court that Dallas either formally or informally teaches its white cops to systematically violate the constitutional rights of minority citizens, and that’s the deep dive that you and I need to take in order to put this in perspective.
The whole city hated what happened to 26-year-old Botham Jean. He was a fine man and a sterling citizen of the city. His promising life was taken from him in one awful moment that should never have happened.
But the city has been bitterly divided ever since about the larger meaning of that moment. Was it a terrible accident? Or was it part of a pattern of racist oppression by the police?
The lawsuit claimed the latter, but claiming wasn’t enough. In order for the lawsuit to proceed — for it to get past the immunity bar — the lawyers had to convince Magistrate Judge Ramirez that they would be able to prove in court the existence of a pattern of oppression carried out through police training.
Remember we’re in federal court now. The federal courts are divided into national divisions called circuits, and our federal courts here in North Texas fall under the 5th Circuit headquartered in New Orleans, covering Texas, Louisiana and Mississippi. Each circuit has its own rules, case law, precedents and procedures.
Texas, Louisiana and Mississippi at this point in history have seen a whole lot of claims of official police racism, many of them egregious and completely legitimate. So the 5th Circuit by now is no newcomer to the topic. In fact, as Ramirez cited in detail in her opinion, the courts have developed specific measures for deciding where and when a pattern exists.
That’s important. A police department might maintain a squeaky-clean official training policy on its books, then give every white graduate of the academy a wink and nudge letting them know that racism is the real deal on the street.
What the courts have found is that a consistent policy or culture of racism in a police department is going to show up on the street in a mirroring pattern of racist incidents, but a pattern doesn’t require only incidents. It requires numbers of incidents.
The unhappy reality is that even in the best big urban police department, when thousands of officers are wearing the badge, some number of bad ones will slip through the vetting process.
The question Ramirez had to examine, then, was how many bad eggs Washington and Merritt were offering her as proof of a pattern in Dallas in their lawsuit. The issue in question is what the 5th Circuit calls “numerosity,” and the court’s standards are specific.
Ramirez cited a case in Fort Worth in 2009 in which the court found that 27 incidents of excessive force over a three-year period were not enough to establish a pattern. The court found that an average of nine bad abuse cases a year in a city that size fell within the reasonable margin of error.
We can agree or disagree personally on that. Maybe you think any margin of error is wrong. But what we cannot disagree on is the existence of the rule within the 5th Circuit: If 27 cases in three years were not enough to crack the immunity protection in a city the size of Fort Worth in 2009, it’s going to take a good sight more than that to get the court to let you sue Dallas now.
Washington and Merritt came up with seven in four years. Ramirez, upheld by Lynn, ruled that the paltry seven they offered, already far too few to meet the numerosity test, also failed because these supposed instances didn’t come close to matching the facts of the Guyger/Jean case. It wasn’t just that the lawyers had failed to come up with enough instances to prove the pattern. They didn’t come up with any. That’s why their lawsuit got bounced twice, first by the magistrate and then by the chief judge.
The facts of the Guyger/Jean case were devastating. That an innocent man could be sitting in his own home one moment eating ice cream and watching TV and be shot dead the next through no fault of his own was a challenge to our belief in the basic sanctity of life, let alone the justice of it. (Guyger claimed that she mistakenly entered Jean's apartment, believing it her own. She lived in the apartment above him.)
The death of Botham Jean closely followed a sickening procession of what felt like parallel events nationally, and the trial and verdict of guilt for Guyger barely preceded the terrible shooting of Atatiana Jefferson, a black woman shot in her mother’s home by a white police officer in Fort Worth. The temptation was overwhelming not merely to roll them all together as one but to roll them together and scream.
But the danger in doing that was that we would scream at the wrong person or people. The lawsuit against the city of Dallas encouraged us to believe that Guyger killed Jean because she was trained or encouraged to do so by the Dallas Police Department — your police department, my police department.
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Here’s the thing about that. If you level that kind of charge and get it wrong, it’s not just an oops. It’s not a technical problem, as the Morning News has construed it. It’s a terrible lie.
It’s a lie that undermines the community’s basic faith and trust in its police department and in itself. It’s a lie that puts the lives of honest, courageous police officers in even greater danger than they’re in already.
It’s a lie that cheapens the terribly important struggle that we do need to undertake to overcome injustice and oppression in our city. Those problems are real. The accusation in this lawsuit was not.