Judge Don Willett Calls Out Appeals Court For Saying Setting A Suicidal Man On Fire Didn't Violate His Rights

from the Fifth-sees-writing-on-SCOTUS-wall,-shrugs dept

Earlier this year, the Fifth Circuit Court of Appeals granted qualified immunity to cops who responded to a call about a suicidal man by setting him on fire and killing him. The man, who had just finished pouring gasoline over himself, was tased by two officers, causing him to burst into flames, which soon spread to the house around him. They tased him despite knowing two things: the man was covered in gas and that the manufacturer of their [extremely-dark lol] "less-lethal" devices specifically warned against deploying them around flammable substances.

This is from the decision in which the Fifth saw nothing unjustifiable about these actions:

Upon entering, Officer Guadarrama detected the odor of gasoline. A woman directed the officers to a corner bedroom on the east side of the house. There they found Gabriel Eduardo Olivas (“Olivas”) leaning against a wall and holding a red gas can. After turning his flashlight on Olivas, Officer Elliott allegedly shouted to Sergeant Jefferson and Officer Guadarrama, “If we tase him, he is going to light on fire.”

That's exactly what happened:

Guadarrama and Elliott, at least, and maybe Jefferson as well, noticed that Olivas was holding some object that appeared as though it might be a lighter. Guadarrama, followed in short succession by Jefferson, fired his taser at the gasoline-soaked man, causing him to burst into flames. Corporal Ray and Officer Scott arrived at the scene at about this time. When they entered the house, they found Olivas engulfed in flames.

The fire spread from Olivas to the walls of the bedroom, and the house eventually burned to the ground. The officers at the scene were able to evacuate the family members who had remained in the house, but Olivas was badly burned and later died from his injuries.

The court looked past this and said the man posed a risk to himself and others. The risk was that he might set himself on fire and possibly the house as well. Before the cops intervened, it was only a risk. Once they did decide to act, it became a reality. Qualified immunity was awarded.

The plaintiffs asked the court to reconsider. It has decided it won't rethink its decision. But its denial [PDF] of an en banc hearing contains an incredibly angry dissent written by Judge Don Willett, who criticized the doctrine of qualified immunity as a rigged game the government always wins in another blistering dissent back in 2018.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

That's the way the Supreme Court has set up federal courts to fail the public. It has made it extremely difficult for judges to actually set precedent declaring the actions before them as clear violations of rights. Instead of reaching these decisions, the courts find ways to excuse law enforcement officers for their actions.

The Supreme Court seems to have reconsidered this approach in recent months. It has rejected two Fifth Circuit qualified immunity decisions and sent them back for reconsideration. These are noted in Willett's dissent, along with the absurdity of this particular decision. As Willett sees it, refusing to reconsider it now just means the court will be dealing with it later.

In recent months, the Court has signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses. The Justices delivered that message in back-to-back cases, both from this circuit and both involving obvious, conscience-shocking constitutional violations. This case is of a piece—yet more troubling. Whereas the Supreme Court’s two summary dispositions checked us for holding, on summary judgment, that there was no violation of “clearly established” law, despite obvious constitutional violations, here we held, on a motion to dismiss, that there was no violation of law whatsoever, despite an obvious constitutional violation. By giving a premature pass to egregious behavior, we have provided the Supreme Court yet another message-sending opportunity.

Willett says the court decided to -- without explaining why -- ignore the allegations as pleaded, something it's supposed to do when the plaintiff is the non-moving party. The district court had denied immunity, resulting in the officers' appeal. Courts are supposed to consider all the facts and place it in front of a jury if needed. Qualified immunity bypasses all of this -- at least the way it's interpreted by too many courts -- and allows officers' claims that their actions were justified to be all the facts they need.

These are the facts of the case:

Gabriel Eduardo Olivas was burned alive. According to the facts alleged in the complaint—which we must accept as true—and drawing all reasonable inferences in Plaintiffs’ favor, two police officers tased the suicidal Olivas, despite:

1. knowing that he was soaked in gasoline

2. knowing from recent training that tasers ignite gasoline, and

3. knowing from a fellow officer’s explicit warning in that instant, “If we tase him, he’s going to light on fire!”

They fired their tasers anyway, knowing full well that using a taser was tantamount to using a flamethrower. Olivas burst into flames and later died.

Those facts were ignored by the Fifth Circuit.

The panel opinion, however, invoked something resembling summary-judgment review, hesitating over “disputed facts,” crediting the officers’ allegations instead of Plaintiffs’, and speculating about what non-lethal options the officers had—declaring that Officer Guadarrama fired first and had a “readily apparent justification for use of his taser” and that Officer Jefferson fired second and “had good reason” to tase an already ignited Olivas.

The Fifth Circuit decided to give these officers a pass because they could see no other way to prevent a man from setting himself on fire other than setting him on fire, and no way to save a house from being burned down than to start a fire that eventually burned the house down. Willett says this conclusion is mind-boggling in its absurdity.

The complaint alleges a plausible Fourth Amendment violation, and an obvious one at that. How is it reasonable—more accurately, not plausibly unreasonable—to set someone on fire to prevent him from setting himself on fire? To my mind, it is unfathomable to conclude with zero discovery, yet 100% finality, that no facially plausible argument exists that these officers acted unreasonably. Perhaps discovery would have supplied crucial facts that cut the officers’ way. But we have stumbled through the looking glass when we conclude—as a matter of constitutional law at the motion-to-dismiss stage—that government officials can burn someone alive and not even be troubled with discovery.

Deciding the case ends here -- with a determination no reasonable person in the same situation would have set a man on fire -- not only ignores the evidentiary standard needed to move a case forward (plausible allegations) but it allows future rights violations to be considered gray areas where no "reasonable" cop would know to act differently. Without knowing more, the court is acting in willful ignorance that provides nothing approaching justice.

Well, what should these officers have done? After all, this was a suicidal man drenched in gasoline experiencing a severe mental health crisis. A perfectly sensible question—but a premature one. Perhaps the panel is correct that “the officers had no apparent options.” Perhaps, as Plaintiffs allege, there were options galore, with the officers picking the one measure of force that was obviously off limits—a flamethrower. I cannot predict, at this stage, whether discovery will substantiate the existence of superior alternatives. But exploring that vital question is precisely why discovery exists.

That officers face difficult decisions in difficult situations is not a free pass for them to behave recklessly or to deploy excessive force. These difficult questions demand thorough answers, not early exits from lawsuits simply because the answers don't immediately present themselves.

These officers faced a harrowing, fast-moving situation, no question. But we cannot dispense with discovery as to the reasonableness of officers’ actions whenever circumstances are difficult. This is not second-guessing what the officers did. It’s simply, and unremarkably, recognizing that facts matter—in fact, facts are all that matter—and we must actually gather some in order to determine if these officers acted unreasonably.

Being an escape hatch for wrongdoing is the side effect of the Supreme Court's continuous alteration of its self-created legal doctrine. But the two recent decisions sent back to the Fifth Circuit by the Supreme Court indicate a course correction by the nation's top court. And it's sending a message to every federal court, even though it's the Fifth Circuit that has been the recipient of its two most recent qualified immunity rejections. The procedural aspects of the doctrine are changing, Willet warns, and the Fifth Circuit's willingness to ignore the pointed rejections doesn't reflect well on it.

These two orders make clear that the Court is earnest about reining in qualified immunity’s severest applications. This doctrinal clarification may not amount to sweeping reexamination, but the upshot is plain: In cases with “particularly egregious facts,” courts must not strain to absolve constitutional violations. Even if the precise fact pattern is novel, there is no need for a prior case exactly on point where the violation is obvious.

[...]

The principle uniting these recent rebukes is that the qualified immunity doctrine does not require judicial blindness. Courts need not be oblivious to the obvious.

If Willett is right -- and every judge voting against a rehearing is wrong -- the Supreme Court will be sending this case back to the Fifth to correct at some point in the future. Allowing this decision to stand makes it that much easier for cops to kill people they're supposed to be saving.

Filed Under: 5th circuit, don willett, qualified immunity

Appeals Court Judge: Qualified Immunity Is A Rigged Game The Government Almost Always Wins

from the well-deserved-(and-well-placed)-shots dept

We've long cast a skeptical eye on the judicial theory of qualified immunity. Conjured out of thin air by the Supreme Court, qualified immunity cannot be found among the thousands of laws and statutes our legislature has created over the past couple of centuries.

Qualified immunity raises an almost-insurmountable bar for plaintiffs to hurdle when alleging Constitutional violations. It's not enough to provide evidence of violated rights. Previous court decisions on point must exist, and the court must have previously established [insert rights violation here] as a Constitutional violation for the plaintiff's lawsuit to advance. This summation of the QI standard from Scott Greenfield may seem outlandish, but it's actually not that far from the truth.

The presumption is that if a court hasn’t told you that putting a gun in a person’s mouth and threatening to blow his head off unless he admits guilt [violates someone's rights], how could a cop possibly know this is unconstitutional?

Greenfield's post discusses a recent decision [PDF] by the Fifth Circuit Court of Appeals. The ruling deals with an unconstitutional search of medical records performed by the DEA. The Appeals Court agrees with the plaintiff rights were violated.

Relying on Supreme Court precedent, we held that it was clear at the time that “prior to compliance, Cotropia was entitled to an opportunity to obtain review of the administrative subpoena before a neutral decision maker.” Id. at 358 (citing See v. City of Seattle, 387 U.S. 541, 545 (1967); Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984)). Similarly, the demand to turn over Dr. Zadeh’s medical records immediately did not provide an opportunity for precompliance review. We agree, then, that a requirement of precompliance review in many, if not most, administrative searches had been clearly established by Supreme Court precedent prior to the search here.

The government argued that the medical industry is "closely regulated" (like pawn shops or porn), thus eliminating the need to present subpoenas for review and/or engage in warrantless searches. The court disagrees with the government's assessment, pointing out the ridiculousness of claiming there's no expectation of privacy in medical records.

Acknowledging that the medical profession is subject to close oversight, the district court emphasized the absence of a history of warrantless inspections to conclude that the medical profession was not a closely regulated industry. Important to its conclusion was the confidential nature of the doctor-patient relationship: “It strains credibility to suggest that doctors and their patients have no reasonable expectation of privacy.” On appeal, the defendants all but concede that there is not a lengthy history of warrantless searches.

At the end of the day, all this discussion doesn't matter. The "unlawfulness" was "not clearly established" at the time it happened. Why? Because no case directly on point with this one had arisen where the Appeals Court had declared this particular rights violation -- containing these particular circumstances -- unconstitutional.

That's where the decision gets interesting. Recently-appointed appeals court Judge Don Willett concurs with the majority's opinion, but only to raise questions about qualified immunity and its effect on the justice system.

The court is right about Dr. Zadeh’s rights: They were violated.

But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

Willett's next sentence is nearly as trenchant as Greenfield's take on QI:

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. [emphasis in the original]

And that's the problem: a novel way of violating rights -- even a way the court agrees is unconstitutional -- gets a free pass because no one has been sued over this exact rights violation occurring under these exact circumstances. This Supreme Court-erected standard of review -- cases on point -- has resulted in many federal judges refusing to declare acts unconstitutional… because no one before them has bothered to find violations clearly established. The justice system provides no justice. Instead, it erects shelters for government misconduct.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

This is where we're at as a country. Rights can be violated so long as the government employee finds a new way of doing it or happens to reside in a jurisdiction where that particular rights violation hasn't been "clearly established" as unconstitutional. Even if it has been, the government may still get away with it as long as the violation occurred before it was determined unconstitutional. What was supposed to balance citizens' ability to seek redress with the government's supposed need to move fast and break things is merely another way for government employees to avoid being held accountable for their actions.

Filed Under: don willett, fifth circuit, qualified immunity, rights