Fourth Circuit inclined to immunity for arrest following murky confession

RICHMOND, Va. (CN) — The Fourth Circuit heard arguments Thursday over whether police officers are immune from claims brought by a young Black man who was detained for over a year for a sex crime he did not commit.

Kewon English and Earl Powell, both Black teenagers at the time, were arrested in early August 2015 and detained for a sex crime for over a year even after DNA evidence proved they didn’t commit it.

English claims there was no probable cause for his arrest, that the victim said that her attackers mentioned the name “Kewon” but didn’t know with certainty that Kewon was one of the attackers.

Shortly after, one of the investigators said the victim was “certain” Kewon was one of the assaulters. Police took English into custody at his home and transported him to the station without his mother, where he says his request for an attorney was ignored.

Richland County Sheriff’s officer Joseph Clarke prepared a statement for English to sign, a confessional in a Q&A format. English claims he signed it but did not read it, and Clarke used the confession as evidence to indict English.

In May 2016, DNA evidence from the crime pointed to another person who was promptly arrested. English and Powell continued to languish in jail until the charges against them were finally dropped in December 2016.

English filed a federal lawsuit against Clarke, Sheriff Leon Lott and his department. The judge found that except for the possibility English’s confession was coerced, there was probable cause for his arrest and the department enjoyed sovereign immunity.

Andrew Lindemann, one of English’s lawyers who spoke before the court Thursday, argued in the brief that the only

On appeal to the Fourth Circuit on Thursday, U.S. Circuit Judge J. Harvie Wilkinson III rejected arguments by English’s lawyer Andrew Lindemann that the coerced confession violated English’s First Amendment rights. If any were relevant, the Fifth Amendment would better have applied, the Ronald Reagan appointee said.

“One of the things we try to do is keep the law straight,” he said. “Everything is not a matter of violating every constitutional amendment, take the one that applies most directly.”

Wilkinson’s reasoning echoes the lower court’s in dismissing English’s malicious prosecution claim against Clarke.

Chief U.S. Circuit Judge Albert Diaz said Clarke is entitled to qualified immunity, as the confession is probable cause to charge English and Powell, even if it was obtained improperly.

“[That] is clearly now, I believe, the law as spelled out by the Supreme Court in Vega . That wasn’t established in 2015. So at the very least he should be entitled to qualified immunity," the Obama appointee said.

But Wilkinson expressed skepticism over Powell’s arrest, pointing out the lack of evidence against him other than English’s confession.

“Even with the confession, which was arguably coerced, I’m just not sure there was reason to arrest Mr. Powell,” he said. “In this case all the incriminatory evidence seems to go to Mr. English and very little of the incriminatory evidence seems to go to Mr. Powell.”

Judge Toby Heytens, a Joe Biden appointee, also participated in the oral argument. The panel did not indicate how or when they would rule.

Attorneys for English and Clark did not respond to a request for comment.

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