Fifth Circuit Says Tasing A Person Soaked In Gasoline And Setting Them On Fire Isn't An Unreasonable Use Of Force

from the fucking-system-burns-him-to-the-ground dept

So, here's where we're at in the Fifth Circuit: cops can literally set a person on fire and walk away from it.

Judge Don Willett's incendiary comments opposing qualified immunity notwithstanding, civil rights litigation still remains a sucker bet in the Fifth Circuit, where cops are granted judicial forgiveness more frequently than they are in any other judicial circuit.

Here's the latest depressing read from the Appeals Court, which can't talk itself into removing this shield from officers who tased a suicidal man after he covered himself in gasoline, turning a potential suicide into an actual homicide.

Some cops seem to feel suicide threats should be converted into self-fulfilling prophecies. The cops involved here -- all Arlington, Texas police officers -- turned a distress call from a family member into the very thing the family members were hoping to prevent. From the opinion [PDF]:

On July 10, 2017, Gabriel Anthony Olivas called 911 and reported that his father was threatening to kill himself and burn down their house. Corporal Ray, Sergeant Jefferson, and Officers Scott, Elliott, and Guadarrama of the Arlington Police Department responded.

Behold the thin blue line that stands between suicide and threats to burn a house down.

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.

With results like these, it's a wonder why anyone bothers calling the cops. If the family wanted their father dead and their house burned down, they could have accomplished that by doing nothing. Hell, they might possibly have prevented it. After all, the family had more at stake and would have been more willing to de-escalate. But the cops got involved and the rest is QI history.

The question comes down to what a "reasonable" officer would have done under these circumstances. But the court decides in favor of the less-reasonable officers, despite them being warned against doing this by other, more reasonable officers at the scene.

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.”

The court says it doesn't matter than the man was burned to death as a result of being tased. The only thing that matters is whether or not he deserved to be tased. The court says the dead man earned his tasing. The unfortunate byproduct of his tasing -- his death, the family home burning down -- can't be held against the officers who set him on fire.

Olivas posed a substantial and immediate risk of death or serious bodily injury to himself and everyone in the house. He was covered in gasoline. He had been threatening to kill himself and burn down the house. He appeared to be holding a lighter. At that point, there were at least six other people in the house, all of whom were in danger.

Under this line of thought, the force deployment was reasonable. That at least one other officer on the scene felt otherwise doesn't matter.

The fact that Olivas appeared to have the capability of setting himself on fire in an instant and, indeed, was threatening to do so, meant that the officers had no apparent options to avoid calamity. If, reviewing the facts in hindsight, it is still not apparent what might have been done differently to achieve a better outcome under these circumstances, then, certainly, we, who are separated from the moment by more than three years, cannot conclude that Guadarrama or Jefferson, in the exigencies of the moment, acted unreasonably.

Even if it could reasonably be foreseen that tasing a man covered in gasoline would result in serious injury or death, it was not unreasonable to tase him because of the threat he posed. That following through on this act turned the threat into a reality apparently has no bearing on the outcome. The only thing that matters is whether it was legally permissible to tase him. Everything else is just noise, according to the Fifth Circuit.

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Filed Under: 5th circuit, police, police brutality, setting people on fire, unreasonable use of force


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  • identicon
    Anonymous Coward, 26 Feb 2021 @ 4:23am

    All I can say is: in a sane world this would result in an impeachment.

    I wonder if we live in a sane world.

    (That last line definetly deserves a /s)

    reply to this | link to this | view in chronology ]

  • identicon
    me, 26 Feb 2021 @ 4:28am

    Simple case of murder and arsen

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 26 Feb 2021 @ 4:58am

    "When they entered the house, they found Olivas engulfed in flames."

    "At that point, there were at least six other people in the house, all of whom were in danger."

    So... knowing there were at least 6 people trapped in the house, they fired into the house from outside at someone they knew would be set on fire and just hoped they would be able make it inside and grab the trapped family members before things burned down too much?

    "indeed, was threatening to do so, meant that the officers had no apparent options to avoid calamity"

    Bull. Shit. There were at least 2 options presented to them - talk to the man and hope that he is convinced not to use the lighter, or fire the taser with full knowledge that they would set him on fire. They chose the option with a guarantee of calamity rather than the option with danger but still a way to defuse without that happening.

    I can imagine it was a tense situation and it's obviously easier to deal with in hindsight than while you're in that situation. But, the fact is they were prevented with options and they chose the option most likely to result in what happened.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 26 Feb 2021 @ 6:02am

      Re:

      "So... knowing there were at least 6 people trapped in the house, they fired into the house from outside at someone they knew would be set on fire and just hoped they would be able make it inside and grab the trapped family members before things burned down too much?"

      I have to refer to you our earlier discussion on why "not calling the police" may be a viable option, even in many emergencies. This, right here, is the expected standard of US law enforcement. As validated by the actual courts...

      "They chose the option with a guarantee of calamity rather than the option with danger but still a way to defuse without that happening."

      In fact, given that the man was armed only with a lighter, any normal person could have approached him with empty hands, talking to him in a calm tone of voice, and tried to talk him down. Twenty years back this is what US cops used to do to jumpers. I have no doubt they'd tase a jumper as well, today.

      "...the fact is they were prevented with options and they chose the option most likely to result in what happened."

      And pot odds are most officers learn how to talk down a suicidal person and normal risk/threat assessment in basic training. Then on the job they receive warrior training instead and learn the gun solves every dispute.

      I keep coming back to a hypothetical scenario of how something like this would pan out in countries like Sweden, France, Germany or the UK...I can't see a single situation where an european officer would manage a stunt like this. Only In America.
      I'm beginning to think there's just no saving that nation. Shit like this is just the best they can do.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 26 Feb 2021 @ 1:36pm

        Re: Re:

        Shit like this is just the best they can do.

        That's bullshit as well. I come from a period where cops rarely drew their weapon, much less fired it at someone. Where they talked down threats like this instead of going in guns blazing. The problem today is in WHO gets hired and HOW they are trained. It's no longer the best getting the best training, it's bullies and psychos who get taught how to get away with literal murder.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 26 Feb 2021 @ 2:24pm

          Not the best they can do, merely the best they're willing to do

          I'd lay a good chunk of the blame on the complete and utter refusal to hold police accountable as well, something which encourages the rot to spread and drives out any potential 'good' cops. Knowing that an officer can get away with anything up to and including literal murder is going to be one hell of a draw and motivation to psychopaths and great 'incentive' to anyone who doesn't fall into that category and doesn't want to work alongside them to get out or not join in the first place, such that over time the rotten, corrupt and/or psychotic go from a minority to the majority.

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 1 Mar 2021 @ 12:05am

          Re: Re: Re:

          "That's bullshit as well. I come from a period where cops rarely drew their weapon, much less fired it at someone."

          Yeah, and that is, today, once-upon-a-time bullshit...because in the US of today US law enforcement has a kill rate per capita higher than what actual criminals produce in a few other countries.

          So today shit like the above is, indeed, the best the US law enforcement can do. And unlikely to change, given that any rational change will be sunk by right-wing extremists hollering "soft on crime".

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Feb 2021 @ 7:22am

        Re: Re:

        I'm beginning to think there's just no saving that nation. Shit like this is just the best they can do.

        There never was. The US chose it's path towards destruction long ago. It's just taking forever to actually get there. Far too many people are of that "might makes right" mentality in the US for it to survive with all of it's different view points intact. The current political fights, the coup attempt on the US Capital, etc. are just the latest salvos being fired in the fight to determine which view points survive. That fight is now all consuming in US politics.

        While the rest of the world and the current US administration may like to pretend that the "US is back", it's not, never will be, and they all know it. The best anyone can hope for is a quick transition of power to whatever new (probably Fascist) government the US citizenry can come up with to minimize the number of lives lost, and that maybe whatever new admin that comes in won't completely abandon what few international agreements the old US had been upholding.

        Short of a major political / mindset shift of the entire US citizenry, I'd give it two decades at most.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 1 Mar 2021 @ 1:07am

          Re: Re: Re:

          "The current political fights, the coup attempt on the US Capital, etc. are just the latest salvos being fired in the fight to determine which view points survive."

          The capitol assault was more or less Trump's "Beer Hall Coup". A number of firebrands will do some time while the rest of the extremist right-wing leadership consolidate and come up with a better plan now that they've opened the fourth box and they've popped their cherry on violently overthrowing the government.

          "That fight is now all consuming in US politics."

          And one-sided. Most of the rational and liberal people are to greater or lesser degree still in blind denial that the line has been crossed, and will keep clamoring for "bridging the gap" and "mending the wounds" with the people who call for the death or incarceration of all who oppose them. When that mob carried the confederate flag and anti-personnel ziplock ties into the capitol past the battered corpse of a guard and shat on the god damn floor in the rotunda they demonstrated full well that the only way the US gets out of this morass a better nation is when the 70% who are still sane stand up and curbstomp the 30% who are today racists, bigots, and bona fide nazis into the dirt until they stop squeaking.

          Yet they don't. They keep inviting the raging herd of thugs to the negotiation table instead, and will end up compromising away the last principles they cling to just to present the image of a "unified nation".

          "Short of a major political / mindset shift of the entire US citizenry, I'd give it two decades at most."

          Probably less. Unless Biden works a miracle, most of the necessary changes will keep hurting the US economy in the short term or at least not keep it from sliding into the abyss Trump tipped it in. Hitler himself made do with a mere 12% of the people to obtain power in a time of crisis. The trumpists have 30%. With 87% of the republican voter base still believing in Dear Leader.

          "The US chose it's path towards destruction long ago."

          Repeatedly. There have been a lot of times when it had the option to get on track for a better future but rejected that option because the backlash from the malicious minority would have been too painful.

          reply to this | link to this | view in chronology ]

          • icon
            Upstream (profile), 1 Mar 2021 @ 4:11am

            Re: Re: Re: Re:

            the 70% who are still sane

            I am not sure where you are getting your data / estimates (although I have my suspicions), but I think this figure makes Pollyanna look like a pessimist.

            reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 26 Feb 2021 @ 4:31pm

      Re:

      1-2 cops with Fire extinguishers, would do the job.
      Cant lite a match with the cops blasting him with extinguishers.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 5:03am

    Hopefully another one for the Supreme's to overturn.
    Unlikely to get there though.

    The man had 6 people in a situation of potential risk - the cops decided to remove the potential and make it a certainty. There are very few places in the world where this would be considered an acceptable outcome

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 6:45am

    Let's be reasonable here

    I mean, they did stop him committing suicide. So there is that. Right?

    /s

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 6:50am

    Let's be reasonable here

    I mean, they did stop him committing suicide. So they kinda succeeded. Right?

    /s

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 26 Feb 2021 @ 6:51am

    Sweet jeebus.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 26 Feb 2021 @ 6:55am

    "The only thing that matters is whether or not he deserved to be tased."

    "Under this line of thought, the force deployment was reasonable"

    How so? The line of though claims both that he deserved to be tased because they needed to prevent him from starting the fire and they knew doing it would start the fire. That isn't reasonable it's self contradicting You can't have both, either you didn't know tasing him would start the fire or you tased him for a different reason than preventing the fire being started

    reply to this | link to this | view in chronology ]

  • identicon
    Peter, 26 Feb 2021 @ 6:55am

    So in summary

    In order to prevent a guy setting himself on fire, they set him on fire. And this is perfectly acceptable?
    Have I got that straight?

    reply to this | link to this | view in chronology ]

  • identicon
    Damien, 26 Feb 2021 @ 7:04am

    Yet another reminder to myself to never step foot any place that's under the jurisdiction of the fifth court.

    reply to this | link to this | view in chronology ]

  • identicon
    Eric, 26 Feb 2021 @ 8:01am

    What if a civilian did this?

    I think a good exercise in these situations is to replace the police officer with a civilian and determine if it was self defense (I realize this analogy is not perfect)..."So let's see here mr civilian, you went to person A's house because they were suicidal and you thought you could help out. Once there you discovered they were doused in gasoline, and although they were not directly threatening you, you were concerned they might set themselves on fire and in trun harm others, to prevent this from happening you proceeded to shock them with a taser and in turn set them on fire thus causing them to suffer an excruciating death, burn the house down and put everyone at risk...um yep we are going with a murder charge here".

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 26 Feb 2021 @ 11:36am

      The sad thing is how courts often forget that cops are staffed not by demigods sprung forth from Zeus’s head, but by the same people those cops swear an oath to serve. The only difference between murder and state-sanctioned lethal violence is that oath.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 1 Mar 2021 @ 1:11am

        Re:

        "The sad thing is how courts often forget that cops are staffed not by demigods sprung forth from Zeus’s head..."

        <casts a casual glance at greek mythology>

        ...you mean "murderous rapist thugs"? Maybe the courts would do better to just assume that US law enforcement is indeed often staffed by people closely corresponding to the demigods of greek mythology and have them all committed to Arkham Asylum?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 8:19am

    If you threaten Suicide...

    We will Kill you..
    (and maybe your family, destroy your property, your reputation...)
    (only a week pathetic pussy would ignore the chance to light someone on fire!)

    We Are The LAW!

    reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 26 Feb 2021 @ 8:51am

    Never...

    ...trust a law enforcement officer. NEVER. They lie, cheat, steal with impunity. There is no such thing as a "good cop" because even those who might appear "good" will protect and assist the "bad" ones. The police unions are nothing but organized crime syndicates.

    reply to this | link to this | view in chronology ]

  • icon
    Rico R. (profile), 26 Feb 2021 @ 9:24am

    SCOTUS this past week: Hey, 5th circuit... You messed up a lot of Qualified Immunity cases. We expect better from you.
    5th Circuit, looking at this case: **Fingers in ears** LA-LA-LA, I can't hear anything!

    reply to this | link to this | view in chronology ]

  • icon
    Coises (profile), 26 Feb 2021 @ 10:23am

    Negligence

    At what point does calling the police become the de facto equivalent of willful and/or criminal negligence?

    I mean, you can't hand a loaded gun to a four-year-old and expect to bear no responsibility for the consequences...

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 26 Feb 2021 @ 11:45am

      Re: Negligence

      Never, because that would require the courts and lawmakers to admit that calling the police is not justa bad idea but a known way to cause things to get worse, and since that's clearly not happening...

      reply to this | link to this | view in chronology ]

  • identicon
    dadtaxi, 26 Feb 2021 @ 10:44am

    weird language

    "who are separated from the moment by more than three years"

    What in the blue blazes has that got to do with anything? Would it have made any difference if it was determined within 30 seconds? If not - then why even mention that as a factor in the first place?

    Smells more like desperate straw-clutching excuse-making than a reasoned determination

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 1 Mar 2021 @ 1:55am

      Re: weird language

      "What in the blue blazes has that got to do with anything?"

      Well, spoken by a court judge those words can be translated as "I really don't want to penalize a police officer for willfully burning a man to death, lest my future career suffer, and my only way out is to fast-talk the case to a close".

      reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 26 Feb 2021 @ 10:50am

    The general rule is:

    Don't call the police...unless you are absolutely, positively sure they cannot make the situation any worse. It is becoming nearly impossible to make that determination.

    Given that, I think Coises has a valid point. I might add that, by similar logic, since the citizens pay the police via tax money, anyone calling the police (who then subsequently killed someone) could be charged not only as an accessory to murder, but could also be charged with murder-for-hire, as well.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 26 Feb 2021 @ 11:59am

    This is how you get not just protests but riots

    Intentionally lit a man on fire and allowed him to burn to death, burned a house down in the process and put half a dozen lives at risk, and the court shrugs and claims that nothing wrong was done. This is why people are pissed enough that they're protesting or even rioting you jackasses in robes.

    When no less than a circuit court is willing to rule that nothing listed above was worthy of so much as a wrist slap because it would be unreasonable to hold cops accountable for burning a man alive and torching a house in the process that just furthers the idea that if people want things to change they'll have to do it themselves because the legal remedies won't do it for them, and that's not a good or desirable outcome for anyone, the public or police.

    That out of the way while I don't want to blame the family for being naive and stupid it baffles and annoys me that even now there are people that have yet to learn that the absolute last person to call for a potential suicide is the police unless you want the person dead. Call your neighbors, call some random schmuck from the phonebook, but do not under any circumstances call the police unless you want things to get worse.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 26 Feb 2021 @ 1:44pm

      Re: This is how you get not just protests but riots

      On July 10, 2017, Gabriel Anthony Olivas called 911 and reported that his father was threatening to kill himself and burn down their house. Corporal Ray, Sergeant Jefferson, and Officers Scott, Elliott, and Guadarrama of the Arlington Police Department responded.

      He called 911, maybe thinking they'd link him to a suicide prevention hot-line or something similar. Instead, they sent the police. This is bad as it means that people will be discouraged from calling 911 for any emergency lest the police show up and make things worse.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 26 Feb 2021 @ 2:00pm

        If you wouldn't call a psychopath or sadist don't call the cops

        This is bad as it means that people will be discouraged from calling 911 for any emergency lest the police show up and make things worse.

        At this point while it's all sort of disturbing to say given the implications I wouldn't consider that a 'bad' outcome but a reasonable and safer one. If people are less likely to call the police then they're less likely to run into situations like this one where calling the cops was the worst thing they could have done.

        As a slight silver lining if more and more people come to realize what a terrible idea calling the cops are that will hopefully get those people on board with the idea of diverting funding into groups that actually will help(like, Oh I dunno, suicide prevention counselors...), so they're not stuck with 'call the cops and hope that they don't make things worse' or 'deal with the problem yourself' as the only options.

        reply to this | link to this | view in chronology ]

      • icon
        TKnarr (profile), 26 Feb 2021 @ 5:03pm

        Re: Re: This is how you get not just protests but riots

        This is one of the reasons why, here in Seattle, they took 911 away from the police and gave it to an outside agency with an explicit mandate to decide which emergency services to call for any given call. The police obviously aren't happy about this, but not many people can manage to feel any sympathy for them since they keep demonstrating why decisions like this are necessary.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 26 Feb 2021 @ 1:53pm

    Im considering there were MORE then 2 cops.

    Even as another is quoted:

    "Officer Elliott allegedly shouted to Sergeant Jefferson and Officer Guadarrama, “If we tase him, he is going to light on fire.”"

    We have 3+ officers. NO FIRE EXTINGUISHER.
    No one willing to talk/listen to the Person.
    NO ONE QUIETS THE ROOM AREA.

    What would of happened IF' a citizen had done this?
    Using the Taser, Made Sure that the person was NOT able to get up and run out of the room.
    IF they would shoot him in the Forearm or Hand, EVEN with a .22(so as not destroy the HAND) he would of dropped the Lighter, HOPE its not lit, HAD a Extinguisher, and HAD a great chance of things being better.

    So they had NO other choices?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 1:57pm

    Corporal Ray, Sergeant Jefferson, and Officers Scott, Elliott, and Guadarrama of the Arlington Police Department responded.

    5 cops to deal with a potential suicide, where two would suffice. That is starting out with overwhelming force, so no wonder it went downhill from there.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 26 Feb 2021 @ 4:30pm

      Re:

      That, an NOT 1 had a fire extinguisher.
      It would have solved 90% of the problem.. you cant light a FIRE if 1-2 cops are blasting you with an extinguisher.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Feb 2021 @ 5:03pm

        Re: Re:

        Also, if someone has mental issues, going in mob handed is going to make things work. One or two people, and they may talk, 5 or 6 or more and they panic even more.

        reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 26 Feb 2021 @ 9:32pm

    The police make it worse

    There was a crazy guy outside my window screaming at the vacant house next door. I felt bad for the guy.

    My husband thought perhaps we should call the non emergency number but we didn't. We were worried what the police might do and potentially could hurt or kill him so we left him alone.

    reply to this | link to this | view in chronology ]

  • identicon
    Hiddensol8563, 27 Feb 2021 @ 6:56pm

    Seriously?

    Excuse my blue language here for moment. But what the fucking hell.... I'm not sure if the judge is an idiot, evil, crazy, drunk, high, delusional, or all of the above. I think I actually lost some, rather admittedly fleeting, intelligence reading the opinion he authored. Is it me or is this basically the start of Idiocracy's legal system. I be drinking a number of strong drinks, I think I'll start with tequila, then I'll see if it makes any modicum of sense or sanity.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Feb 2021 @ 6:29am

      Re: Seriously?

      I be drinking a number of strong drinks, I think I'll start with tequila, then I'll see if it makes any modicum of sense or sanity.

      Won't help. Many have tried. None have succeeded. The idiocy remains. But drinking can be fun, anyway :)

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 1 Mar 2021 @ 1:57am

      Re: Seriously?

      "But what the fucking hell.... I'm not sure if the judge is an idiot, evil, crazy, drunk, high, delusional, or all of the above."

      None of the above. Try "Perfectly ordinary bog-standard american judge".

      And yes, that's as bad as it sounds.

      reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 28 Feb 2021 @ 10:30pm

    Judge Don Willett's incendiary comments opposing qualified immunity notwithstanding,

    Kind of dark, but I see what you did there.

    reply to this | link to this | view in chronology ]


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