Fifth Circuit Awards Immunity To Cop Who Thought It Would Be A Good Idea To Jump On A Moving Car And Kill The Driver
from the I-had-to-shoot-him-because-I'm-a-fucking-idiot dept
OMG FIFTH CIRCUIT. What the actual fuck.
The Fifth Circuit has long been home to law enforcement friendly qualified immunity decisions, perhaps due to some form of obeisance to the Empire of Texas, which is seemingly always an election cycle away from seceding from the States. Texas has long been regarded as the idealistic long arm of the law, some of which can be blamed on the Texas Rangers being nationally-famous despite having done nothing of note for years other than provide consulting services to ridiculous TV shows.
The Fifth has been rebuked twice in recent months by the Supreme Court. The Supreme Court also loves shielding cops from the consequences of their actions, but seems to have realized that lots of people -- some of them in actual power -- were kind of upset with cops committing so much misconduct (a lot of it violent) and being permitted to walk away from it. So, it rejected a couple of really terrible Fifth Circuit decisions and told the Appeals Court to get it right on remand.
We'd all like to believe judges in the upper echelons of the federal court system are above engaging in territorial pissing. But it's hard to read this recent decision awarding qualified immunity to a violent cop as anything but some petty pushback against recent Supreme Court rejections. (h/t Jay Willis)
In this decision [PDF], the Fifth Circuit Appeals Court sides with a cop who put himself in a dangerous situation and reacted violently to his self-created stimuli. As if officers need any more encouragement to escalate situations needlessly or react violently at the first sign of (often imagined) danger.
Here's what happened, as recounted by the Fifth Circuit court, with the aid of body cam and dashcam footage:
A City of Arlington police officer pulled over O’Shae Terry and his passenger, Terrence Harmon, for driving a large SUV with an expired registration tag. The officer approached the car and asked Terry and Harmon for identification. After taking their information, the officer advised them that she smelled marijuana coming from the car and, as a result, had to search it. In the meantime, another police officer, Defendant Bau Tran, arrived on the scene and approached the car from the passenger’s side next to a curb. While the first officer went back to her patrol car to verify Terry’s and Harmon’s information, Tran waited with the two men. Tran asked them to lower the windows and shut off the vehicle’s engine, and Terry at first complied. Dashcam and bodycam videos capture what happened next.
After some small talk, Terry started raising the windows and reaching for the ignition. Tran immediately shouted “hey, hey, hey, hey,” clambered onto the running board of the SUV, and grabbed the passenger window with his left hand. Tran reached through the passenger window with his right hand and yelled “hey, stop.” Tran retracted his right hand and rested it on his holstered pistol. Then Terry fired the ignition and shifted into drive. Just after the car lurched forward, Tran drew his weapon, stuck it through the window past Harmon’s face, and shot 5 rounds, striking Terry four times.
"Smelled marijuana" is something officers say when it might be somewhat inconvenient to bring in a trained dog to perform an "alert." It's a vague claim that can't be substantiated in court. Neither can it be challenged, because by the time court proceedings begin, any claimed odor will obviously have dissipated. And it obviously can't be captured by any recording device, whether operated by cops or the people they're interacting with.
Even if we choose to believe the officer smelled what he smelled, the ensuing chain of events makes no sense. You really have to question an officer's instincts if a stop for an expired tag and a follow-up "smell of marijuana" encourages him to attempt to take control of the car by any means necessary. Firing a gun through an open window at the driver wasn't going to put Officer Tran in any less danger. Shooting the driver of a moving vehicle while the officer is STILL ON THE MOVING VEHICLE makes absolutely zero sense.
More violence ensued.
Terry lost control, careened across the opposite lane, and jumped the curb. The force of the SUV hitting the curb knocked Tran off and onto the street. As Tran rolled over the asphalt, the car’s rear tires just about hit Tran’s flailing limbs. Harmon then gained control of the SUV, got it back onto the street, and stopped it. An ambulance took Terry to the hospital, but he did not survive.
Police officers are not supposed to create exigent circumstances to justify constitutional violations. (they do tho) A cop can't start a house on fire as an excuse to wander inside to see what's in plain sight. Officers generally aren't supposed to stand in front of moving vehicles just so they have a reason to shoot at people. And this officer's decision to jump on the running board of a car and shoot at the driver while he was still hanging onto the window of the moving vehicle should not be greeted with tacit judicial approval of these tactics. But that's what the Fifth Circuit has handed down here: an invitation for officers to create "dangerous" situations in order to bypass constitutional protections.
All that matters to this court is a literal second of time -- not the stop itself, or the end result of the failed stop, but one single second in this horrific chain of events.
Before Terry accelerated, Tran kept his pistol holstered. But about a second after the car lurched forward, Tran drew his pistol and shot Terry four times. That brief interval—when Tran is clinging to the accelerating SUV and draws his pistol on the driver—is what the court must consider to determine whether Tran reasonably believed he was at risk of serious physical harm.
Having considered far less time than it has taken to read to this point, the court says the cop was right to do what he did.
That belief was reasonable.
To back up this single second of "reasonable" judgment, the court says the outcome of the cop's violent and injudicious actions justify the cop's violent and injudicious actions.
Indeed, what came next illustrates the danger Tran faced. Several seconds after Tran shot Terry, while the SUV was still moving, Tran fell off the running board and into the busy street.
And…
Moreover, as Tran tumbled across the asphalt, the car’s rear tires nearly overran his limbs.
Well, duh. Maybe don't jump on moving cars and shoot people. Real life ain't T.J. Hooker.
The court says it is not here to judge as it lays down its judgment:
The plaintiffs also contend that Tran could have simply stepped off the running board and let Terry drive away, the availability of that alternative, they argue, makes Tran’s use of deadly force unreasonable. But qualified immunity precedent forbids that sort of Monday morning quarterbacking; the threat of harm must be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
It all adds up to a "reasonable" cop having a very unreasonable reaction to a developing situation. Rather than encourage cops to act with caution, the court says cops should be free to act like the protagonists of "Bad Boys" and place themselves in incredible amounts of danger. If anyone else gets killed as a result of this "reasonable" carelessness, well… that's on them, I guess.
It didn't need to go down this way. But it will happen again. And again. And again. This court says it's reasonable to act unreasonably. Cops can place themselves in harm's way and shoot their way out of it without worrying about being successfully sued for unnecessary killings and injuries.
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Filed Under: 5th circuit, bau tran, police shooting, qualified immunity, shae terry, terrence harmon
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Oh look, another great reason to kill QI entirely...
At this point it wouldn't surprise me in the least if the fifth circuit judges awarded QI to a cop who handed a loaded gun to a previously unarmed person and then gunned them down a second later for carrying a deadly weapon.
The killer personally and directly caused the 'threat' that was used to justify the murder, when something that absurd gets a pass then they might as well drop the charade and just come out and admit that as far as the fifth circuit judges are concerned it doesn't matter what they do/don't do cops will be ruled to be innocent and fully justified in their actions.
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If you repeatedly insist on refusing to do the job you're being paid to do, at some point others will start taking that job into their own hands.
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Re:
Which is one of the reasons rulings like this are so insanely stupid, screwing over the public in the short-term and the police in the long-term because when people believe that going through the proper channels will not see justice done then they're much more likely to take matters into their own hands and as I've noted several times now that's how you get vigilantes and no sane person wants those.
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Re: Re:
You already have those, wearing a blue uniform and calling themselves cops. A war between vigilante groups however will be even worse.
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'Bug' vs 'Feature'
Similar in a way I suppose but at the same time very different, cops feel safe acting as they do because they don't believe the proper channels will see justice done however there's a big difference between those who act because they fear that the system won't see justice done and those who are banking on that very thing to protect them.
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Re: Re:
Geez I dunno. When police get involved the suspects seem to get a lot of lead poisoning afterwards. The CDC just can't figure the connection of how that lead got shot into their bodies. It's almost as if the lead was put there on purpose by some opposing force. If only we could get a court to wrap its brains around why these suspects are dying instead of being taken to court for their crimes.
I'm sure the corrupt judges already getting rich off the system will get right on that. In the meanwhile, QI will not protect them from the public when the public decides enough is enough. Then we'll see the gloves come off the government and act as the tyrants we know them to be.
It didn't happen on Jan. 6, but it did happen on Jan. 20th, 2017 and June 1st, 2020. So we know who their goal is in regard to a target rich environment.
These blue GOP stooges and racists in the police are in lockstep with the corruption and kiddy diddlers. This is why they went full Q-anon. The military also has this problem which is why they're developing mass crowd control weapons. Most of this is happening because the country will be bought out in 2028.
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Re: Re: Re:
Thanks to Congress and the NRA, the CDC is not permitted to investigate this epidemic of rapid onset lead poisoning.
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Re: Re:
This is the Fifth Circuit, home of the state that decided that creating open bounties against anyone providing aborting services beyond six weeks, and explicily allowing people out of state to partake in claims, was a good means of imposing religous law and giving the middle finger to the federal government. In retrospect, this story should be completely expected. Texas wants more vigilantes.
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Re:
President Kennedy once said that when peaceful revolution becomes impossible, violent revolution becomes inevitable. It’s equally true of official justice through the courts and vigilante justice in the streets.
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Re: refusing to do the job y
... our (citizen) problem is that Judges and Cops view their "job" much differently than we do.
Judges and Cops do not consider themselves to be humble public servants -- but rather superior overseers of the public good, as they (not us) perceive it.
Big Mistake to think Judges and Cops actually work for you -- Joe Citizen.
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Re:
I had this happen to me, long ago. The judge said that his hands were tied, that the lower court had nailed it down tight. I was much too young then, and brashly asked him "Oh, so your job is to simply rubber-stamp everything that crosses your bench?" Cost me a hundred smackers for contempt of court. Worth every penny just to hear the snickering from the gallery.
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Yeah, but this is Texas.
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Re: Reply
Still better than the average Koby post.
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Re: Re: Reply
You didn't ask for an Amen, but I'll give you one anyway - AMEN to that, Brother!
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I wonder how much of this is related to the 2nd amendment. I am not justifying any action on the police side, but surely the fact that anyone they stop could carry a weapon adds to their paranoia and Chuck Norris style... is there any correlation statistics between police violence and "open carry" or other trigger happy (or at least trigger condoning) legislations in different states?
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Re:
I have never seen or heard of any correlation between police violence and open carry (or concealed carry). If there were any such correlation, never mind evidence of causation, you can bet that the correlation would be at the top of this list of the reasons the prohibitionists want to ban open or concealed carry.
It is not, so we can be quite sure that no such correlation exists.
I have heard prohibitionists speculate that the possibility that someone might be legally armed might cause an increase in violent police action, but this is clearly nonsense. Legally armed people rarely commit crimes, and even more rarely try to resist cops with deadly force, and the possibility that someone might be illegally armed exists whether or not carry of any type is permitted.
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Re: Re:
There isn't an actual correlation, its a perceived correlation. Police in America are constantly afraid of getting shot. They don't call it fear, they call it "vigilance" but whatever you call it, the end result is the same - being on a hair trigger because they think anyone can potentially be armed.
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Self-fulfilling prophecy
With the kicker being that they are adding fuel to the fire of the very thing they fear by brutalizing and antagonizing the public, a citizenry more likely to shoot or even just fight back for fear of their lives and who see and treat the police just as the police see and treat them, as the enemy.
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Re:
Any cop so terrified that a person might be armed that they preemptively decide to draw and shoot first is one that has no business holding that job as they're taking a potential risk to themselves and turning it into an actual risk(quite likely to fatal levels) for the other person which isn't making anyone safer in the long term
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Re: Re:
And yet if those who preemptively draw aren't rewarded for it, they're all too often insulated from any consequences for mistakes in judgement.
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Re:
"...surely the fact that anyone they stop could carry a weapon adds to their paranoia..."
That, right there. Unlike in europe US police do need to expect that there's a reasonable chance the guy they're pulling over is armed.
Add to that the mental health index of most of the US and they'll also be forced to assume the guy is less than stable.
Then finally add the all too prevailing US attitude that violence is the answer to all ills and you've got the perfect storm; Most cops, even the idealistic ones, learn to think of themselves as the random scrubs in a slasher movie.
This is where code blue comes from. The idea that your only way to live through the day rests on fellow officers having your back.
Doesn't excuse the high rate of police killing and overreach. US armed forces spend years walking through hostile cities where everyone really has a reason to hate them while killing far fewer civilians.
But it does explain why a bunch of people selected for not being too smart, with relatively low wages and minimal education in their job often end up adopting a "shoot first" mentality. Even before they get exposed to "warrior" training meant to turn ANY perceived danger into reflexively drawing and firing until the clip is empty.
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ACAB
It never changes.
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Justification
And what would be the ramification if a Citizen did the same?
IF we take that 1 moment they suggest.
It does NOT include anything happening before that moment.
Under 2oz is 180 days and/or fine of $2000
Medical use is allowed only in the form of low-THC cannabis oil, less than 1% THC with a doctor's approval and less than 0.3% THC without.
4oz to 5lbs, is a felony.
But, nothing is mentioned about After the fact searching the vehicle.
IF a citizen had done this THEY would be in jail, if only for the reason of a traffic violation.
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5th Circuit
The 5th circuit is the conservative version of what conservatives imagine the 9th circuit to be: Completely lawless and fringe without even the veneer of impartiality.
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Re: 5th Circuit
I've ordered a T-shirt from RedBubble that says:
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The proper question would've been (can't say "should've", the Fifth has already claimed an inability to see alternate possibilities) to ask "What action would Officer Tran have taken had there been no running boards on the vehicle?".
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Re:
I think in that case, if there were no running boards, then the officer would have needed to go full T. J. Hooker and land on the hood.
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Granted.
Now, this cop was obviously not a "reasonable officer" to begin with.
From the perspective of a reasonable officer, he was not in danger.
For the perspective of this specific cop, he was indeed in danger... only because he did something totally unreasonable.
Why does everything a cop do gets treated as "reasonable" by this court?
What need is there for the "reasonable officer" standard if you don't question the reason of the officer to begin with?
Should people start asking for police accountability and judge accountability now?
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Ideas
Try to understand:
If a cop decides that he or she needs to arrest you, that means that he or she has decided that you have or are violating a law that the community has passed and is in favor of.
This means that you don't get to leave or run. Arrest means to stop. He or she is stopping from being in the community. In other words, you are a danger to the community if you run or resist. The reason is simple: if you are indeed a violator of laws the community has passed by democratic vote, then if you are let out into the community without first being arrested and tried and sentenced then you could do more harm to the community more than you already have done or are doing now.
So running or resisting? That means you are a dangerous out of control zombie criminal. You must be stopped. You have been ordered to stop. You have dangerously decided you do not need to obey the laws your fellow citizens have passed in order to have an ordered community.
If you die are killed? Who is the person protecting the community from the law breaker who will not submit to the will of the community? The guy getting shot.
The cop was doing his or her job. Get these clear principles through your head and stop capping on cops.
And stop resisting arrest. And stop running from the police!!!!!
Just Stop!!!
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Re: Ideas
Restless, there is a major problem with the way you are thinking, because the way you are thinking leads to death camps for those who the people in charge deem as undesirable.
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Re: Re: Ideas
Rest assured, restless does not think of that as an issue. He's a Jan 6th advocate.
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Re: Re: Re: Ideas
So he was in favor of the dangerous out of control zombie criminals who stormed the Capitol? Now I'm confused -- is he pro zombie or not?
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Re: Re: Re: Re: Ideas
You're confusing restless with out_of_the_blue. out_of_the_blue is another kind of dumb fuck who thinks it's insightful and funny to point out posters who have very infrequent posting activity and happen to also post things he dislikes. On the other hand, he'll never call out "zombies" who post things that he agrees with. The moral of the story is that there's very little consistency with these assholes.
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Re: Re: Ideas
"...because the way you are thinking leads to death camps for those who the people in charge deem as undesirable."
Restless94110 has made it abundantly clear in the past that such "undesirables" include black people and the jewish. One guess as to where he gets his ideas.
In case you need a hint for that guess...he's occasionally peppered his rhetoric with tropes like "lügenpresse" and implications towards racial and gender purity...
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Re: Ideas
People who think like restless are not solving the problem, they are the problem. Police state much?
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Re: Re: Ideas
You should see his spiel when the issue is about people of color or HBTQ. Suffice to say the man's either a troll pretending to be a nazi or an actual nazi. By which I mean a bona fide adherent of those very fine people who marched swinging an odal banner in Charlottesville.
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Re: Ideas
lets see.
Large SUV.
Expired tags?
Someone dies cause the cops cant figure out HOW to stop an SUV?
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Re: Ideas
More ideas:
Having an expired registration does not merit a death sentence.
Having marijuana in a car does not merit a death sentence.
Smoking marijuana in a car does not merit a death sentence.
Fleeing a traffic stop in which no weapon or other violence was involved does not merit a death sentence.
I have seen daily duty reports submitted by police. I have seen many, many occasions where the duty report indicated that the officer terminated pursuit because circumstances dictated it became too dangerous to the community to continue.
The cop may have been doing his job, but he was doing it badly and he caused more harm than he prevented.
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You’re supposed to lick the boot, not make a whole meal out of it.
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Re: Ideas
"And stop resisting arrest. And stop running from the police!!!!!
Just Stop!!!"
I'm glad you feel the same way we do about seditionists and fascists, bro.
Who'da thought you'd turn out to not be the piece of shit everyone thought you were.
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Re: Ideas
It was already adjudicated in court that running from the police is not a reasonable cause of suspicion, particularly when you're black, because the cops have already shown that they tend to racial profiling and harassment. Hence being afraid of the police is now a reasonable attitude. (Not to mention sometimes a question of life and death.)
Also, there have been a very large number of cases where cops beat and possibly kill even unresisting individuals. They sometimes do that on camera, entitled as they are. And many are innocent, not that it matters because they were suspected, disrespectful, sometimes both... in other words they displeased the high and mighty judge, jury and executioner all rolled in one blue-clad officer.
People, black people in particular, might stop running away from the police the day they see change in policing. They day when racial profiling and police abuse stop. They day cops are actually held accountable for their actions more often than on some extremely mediatic cases.
And no, even being a criminal doesn't mean cops have the right to shoot you down. (Particular if your "crime" is an expired tag.) Remember: if criminals have no rights, then neither do you. Because it means police suspicion is enough to get you killed, regardless of actual guilt.
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Re: Ideas
"If a cop decides that he or she needs to arrest you, that means that he or she has decided that you have or are violating a law"
...and you're dumber than usual if you think that they are always correct about this, that there's no other biases at play, or that there's a weird tendency for no charges other than "resisting arrest" to be issued.
"This means that you don't get to leave or run"
No, it means that if you leave or run then you will get additional charges when you're finally apprehended. It doesn't mean that the cop now has the role of executioner if they decide that they would rather not spend the time coming after you later. Contempt of cop is not a crime that the community has decided requires summary execution, no matter how much your heroes claim it does.
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Stupid
All of this could have been solved by stepping off the chicane shooting out the tires.
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