5th Cir. Grants Qualified Immunity To Officers Who Tased Man Soaked in Gasoline, Knowing it Would

[Nevilledog]

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Scott Hechinger
@ScottHech
This is how “qualified immunity” works & why it must be abolished. Cops set a person on fire & cannot be sued for a civil rights violation. Why? No other cop had previously set a person on fire in the way they did. And a court hadn’t previously ruled it unconstitutional. Insane.

Rick Hasen
@rickhasen
Fifth Circuit Grants Qualified Immunity To Officers Who Tased Man Soaked in Gasoline, Knowing it Would Light Him on Fire https://lawprofessors.typepad.com/evidenceprof/2021/06/the-qualified-immunity-doctrine-insulates-governmental-agents-from-liability-for-unconstitutional-acts-as-long-as-their-co.html…
3:44 PM · Jul 7, 2021

https://lawprofessors.typepad.com/evidenceprof/2021/06/the-qualified-immunity-doctrine-insulates-governmental-agents-from-liability-for-unconstitutional-acts-as-long-as-their-co.html

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

[T]wo police officers tased the suicidal [Gabriel] 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.

In Ramirez v. Guadarrama, the Fifth Circuit reversed the district court's denial of the defendants motion to dismiss the plaintiffs' § 1983 action under Federal Rule of Civil Procedure 12(b)(6) on grounds of qualified immunity. Then, on Friday, the Fifth Circuit denied the plaintiffs' motion for rehearing en banc. Judge Willett, however, who often dissents in qualified immunity cases, dissented, writing that

When painter-turned-inventor Samuel Morse sent the first telegraph message—“What hath God wrought?”—he was standing in the chamber of the United States Supreme Court, a place that specializes in sending historic messages. Long before 1844, when Morse tapped out his dots and dashes, and for 177 years since, the Supreme Court has issued countless directives— some more emphatic than others, but all of which we must heed.
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 (emphasis added).

*snip*

[onecaliberal]

1. For fucks sake. Isn't murder a violation of the law. 🤷‍♀️

[Journeyman]

2. It seems like, if you come up with a novel way to off someone, you can get away with it . . .

provided, of course, you're an officer of the law and knew full well what you were doing.

[erronis]

3. "knew full well what you were doing". Ah, that's the escape route.

(Congrats on the 14,000 post!)

Any (in)decent lawyer can argue that their client was (perhaps) not totally aware depending on a huge number of external circumstances.

[Bettie]

6. Apparently, it isn't a murder if you're a cop

unless you do it in front of multiple witnesses.

Chauvin was an anomaly. They still get away with murder.

[uponit7771]

4. It's the "knowing" part that should make this am open closed issue no?

[FBaggins]

8. No

The question (under existing SCOTUS rulings) is whether the victim had a right not to be tased and whether that right was so clearly established that any reasonable officer should know it. Not whether there was another option or whether it was the best course.

The police were called because dad threatened to kill himself and burn the house down (with his family inside). In such a scenario you obviously don’t have a clear right to not be tased. So the question now becomes whether you can artificially create such a right by dousing yourself in gasoline.

I doubt it. Certainly not one that would get past the current standard (though perhaps not the standard that should exist).

The police first tried pepper spray, but that caused him to douse himself and pull out the lighter that would surely result in the fire that he had threatened.

Also worth noting that this has happened before and police training says that they CAN ignite gasoline. Not that it WILL. With a warning saying “Do not knowingly use a CEW in the presence of any explosive or flammable substance unless the situation justifies the increased risk,”

[FBaggins]

5. This isn't surprising. It's consistent with existing jurisprudence

Worth noting that the decision included a Clinton appointee and was unanimous. It was originally from February and this was just the denial of an en-banc petition.

[WhiskeyGrinder]

7. ACAB, qualified immunity or not.

[cstanleytech]

9. I can kinda understand the court being reluctant to do away

with it so as to protect police officers that are trying to do their jobs however the family should at the very least have to right to sue the county or city where it took place.

[Orrex]

10. If we want to pretend that "qualified immunity" is anything other than raw fascism...

then police should be legally required to intervene, even at the risk of their own safety, health, and lives, to protect citizens.

At present, thanks to a bullshit SCOTUS ruling, cops have no obligation to protect if they can later make up any bullshit excuse to justify why these well-trained, fully-armored and fully insured knights of justice are too fucking scared to do their fucking jobs.

[FBaggins]

11. That doesn't fit in this scenario

Gasoline had already been spread around the home (or at least the room) when they arrived. Taking a risk of igniting the fuel was putting their own lives in danger in trying to save his and that of his family.

They could have run when the pepper spray failed to subdue him and he got out the lighter.

It's also worth noting that the key qualified immunity SCOTUS cases were 8-1 on much more liberal courts.

[Orrex]

13. I know it's not entirely relevant here, but the larger point stands

Qualified immunity, regardless of whichever court approved it, is great power explicitly without great responsibility, and it is obviously and predictably abused.

Granted, they had little choice in the current case, but if an assailant were about to ignite a school bus full of kindergarteners, our brave cops are not required to intervene until after they've first acted to ensure their own safety.

Absent the obligation to protect, I see absolutely no reason why cops should be afforded such broad latitude to maim and murder with impunity.

[Duppers]

12. 😡