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.

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


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  • icon
    That One Guy (profile), 1 Jul 2021 @ 12:13pm

    ''Murder is bad'? ... nope, no precedent so no conviction'

    If 'knowingly lighting a man on fire and letting them burn to death' isn't 'clearly established to be against the law' for the fifth circuit judges then they are essentially saying that deliberate and gruesomely painful murder is not clearly established as being against the law when done by police, and to call that 'monstrous and abhorrent' is a massive understatement.

    Whether through corruption or cowardice these judges(barring the rightly horrified dissent) are yet again demonstrating how broken the legal system is and how the law or even sanity simply does not apply to police, which is not exactly doing them, the courts or the public any favors.

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

  • identicon
    Pixelation, 1 Jul 2021 @ 1:46pm

    The man was a danger to himself. The officers decided to remove that danger. Brilliant!

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

  • icon
    Chris-Mouse (profile), 1 Jul 2021 @ 1:52pm

    One possible solution would be to make qualified immunity a defence rather than an automatic win. In order to invoke qualified immunity the defence would have to show a previous precedent rather than forcing the plaintiff to prove the precedence to avoid dismissal.

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

    • icon
      Stephen T. Stone (profile), 1 Jul 2021 @ 2:00pm

      This is a good idea.

      That’s why it’ll never happen.

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

    • icon
      That One Guy (profile), 1 Jul 2021 @ 2:20pm

      Re:

      Strangely enough I suspect that if police could defend their actions via QI by invoking precedent judges would have no problem at all creating that precedent, contrary to the current situation.

      As for QI at this point I'd say it needs to die entirely as both police and the courts have shown that they cannot and will not use it responsibly(see this article, where it's being used to justify burning a man to death). Every other profession gets along just fine without QI despite the fact that the dreaded personal responsibility might result in a lawsuit for actions and they can't do the legal equivalent of calling 'base', police can handle it just fine.

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

    • icon
      Upstream (profile), 1 Jul 2021 @ 2:59pm

      Re:

      Another possible solution would be to get rid of the QI horse$#|t altogether and insist on some sanity in the legal system.

      But that idea also makes sense and therefore will never happen.

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

    • icon
      Paul (profile), 1 Jul 2021 @ 11:58pm

      Re: Make QI a defence

      Unfortunately that doesn't work. The whole idea of QI was that in the absence of law or precedent a policeman should have the benefit of the doubt. Your proposal would make the policeman have the dis-benefit of the doubt; in ambiguous cases the policeman is presumptively guilty.

      The original idea of QI: that a policeman making a split-second decision shouldn't then have to defend themselves against a vague standard of "reasonable" was actually a sensible one. But it has become a monster. The "reasonable" standard isn't perfect, but QI is worse.

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

  • identicon
    Anonymous Coward, 1 Jul 2021 @ 2:29pm

    The obvious answer from my armchair

    ... keep him talking. Gasoline evaporates fairly fast. Keep him talking not even that long, and it will have dissipated enough to make him no longer all that flammable.

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

    • identicon
      Anonymous Coward, 1 Jul 2021 @ 2:30pm

      ... but that's not the point of this story.

      The point of THIS story is that the judges didn't even wait for discovery. This takes QI to a whole new level.

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

      • icon
        Upstream (profile), 1 Jul 2021 @ 3:46pm

        Re: ... but that's not the point of this story.

        Delaying would clearly have been a much better idea than cops providing multiple likely sources of ignition, of course. Hell, damn near anything besides cops providing sources of ignition would have been a better idea. This is just one of many situations where cops were the wrong answer, and that should have been obvious to everyone to begin with. Mental health counselors, the fire department, EMT's, or maybe even just some peace and quiet would all have probably had a better chance of a survivable outcome for this guy.

        Just as an aside: Gasoline is really only flammable when it is a vapor mixed with air (or some other oxidizing gas, like say, pure oxygen or nitrous oxide) and even then only when it is within a certain range of concentrations with respect to the oxidizer. If it is to "lean," or less than about 1.4% gasoline vapor to 98.6% air, it will not burn. If it is too "rich," or more than about 7.6% gasoline vapor to 92.4% air, it will not burn, either. Within that range, well, we all know what can happen then. As gasoline evaporates, under most conditions it is usually quite likely that some of it will be within the flammable mixture range, hence the danger. Depending on how much gasoline was present, it could take a really long time, and some good ventilation with fresh air, for the gasoline and it's vapors to dissipate enough to make an interior space safe.

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

    • identicon
      Bobvious, 1 Jul 2021 @ 3:13pm

      Re: The obvious answer from my armchair

      "Gasoline evaporates fairly fast"

      While that is generally true (given sufficient time) in open spaces or with significant ventilation, an enclosed space such as a house complicates matters, as the fuel may have soaked into things and remained in more liquid state, extending the evaporation time. Even in an open space, gasoline can ignite explosively.

      However, it is possible that Olivas was not thinking rationally, so having time to wait for the fuel to evaporate completely doesn't seem like an option in the circumstances.

      The correct response would have been to get fire retardant involved immediately, along with mental health experts, not pocket flamethrowers wielded by "heroes".

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

    • icon
      JMT (profile), 1 Jul 2021 @ 7:16pm

      Re: The obvious answer from my armchair

      "... keep him talking."

      Don't be silly. Only other first-world countries give cops training in de-escalation.

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

      • icon
        That One Guy (profile), 1 Jul 2021 @ 10:03pm

        Re: Re: The obvious answer from my armchair

        Nonsense US police have tons of training in deescalation, the fight goes right out of someone once they're dead after all.

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

    • identicon
      Ghost, 2 Jul 2021 @ 7:05am

      Re: The obvious answer from my armchair

      Yes, but if the only tool you have is a weapon... every problem looks like a victim.

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

  • identicon
    Bobvious, 1 Jul 2021 @ 2:43pm

    Call the Fire Brigade!

    From that earlier story, "On July 10, 2017, Gabriel Anthony Olivas called 911 and reported that his father was threatening to kill himself and burn down their house"

    So the cops knew there was a fire risk BEFORE responding, yet they didn't get the Fire Department involved. A suitably placed fire hose would have quickly brought the situation to a much better outcome.

    What the hell is wrong with these freaking morons?

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

    • identicon
      Anonymous Coward, 1 Jul 2021 @ 4:23pm

      Re: Call the Fire Brigade!

      also EMTs, don't know if they were there or not either. i mean, the situation was mostly medical to begin with.

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

    • icon
      That One Guy (profile), 1 Jul 2021 @ 6:44pm

      Re: Call the Fire Brigade!

      If you know that someone is threatening to kill themselves via fire and you want to prevent that, what is the first thing you grab before leaving the building? A fire extinguisher.

      At best they were grossly incompetent and negligent, knowing ahead of time what the likely problem was and failing to bring the one item that would have nullified it. Given they tased the victim after one of them noted that doing so would likely catch him on fire though I strongly suspect that that him going up in flames was the intended outcome.

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

      • identicon
        Peter, 2 Jul 2021 @ 2:33am

        Re: Re: Call the Fire Brigade!

        Does not matter if it is a screw and there is a screwdriver next to it if all you have ever used is a hammer.

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

    • icon
      Scary Devil Monastery (profile), 2 Jul 2021 @ 1:50am

      Re: Call the Fire Brigade!

      "A suitably placed fire hose would have quickly brought the situation to a much better outcome."

      An unsubtle use of a normal fire extinguisher (which i believe is standard equipment in both houses and any public service vehicles, including cop cars) would have saved that man. The police most likely had both the equipment and the necessary training at hand to make sure the man did not catchy fire. Instead they drew tasers and administered sparks.

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

      • identicon
        Anonymous Coward, 2 Jul 2021 @ 2:17am

        Re: Re: Call the Fire Brigade!

        See the opening scene in the first episode, series one of the BBC drama "Happy Valley".

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

        • identicon
          Bobvious, 2 Jul 2021 @ 5:28am

          Re: Re: Re: Call the Fire Brigade!

          Precisely the sort of gamechanger I was alluding to. Everything is wet, person needing help is swiftly separated from any type of weapon, and shown that they are no longer in control of the situation. A very useful negotiating tactic that was used in recent times to disarm a drunk yobbo and get their undivided attention. No weapon, no mouthing off to the bobbies, no longer standing, overwhelmed by simple application of streampower.

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

  • icon
    ECA (profile), 1 Jul 2021 @ 5:25pm

    A police car

    Full of all kinds of stuff.
    NOT including a fire extinguisher?
    How many dead because he is ill equipped?

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

  • icon
    Uriel-238 (profile), 1 Jul 2021 @ 7:55pm

    Something I remember as easily as the aughts.

    Blue suicide, or suicide by cop was considered bad form in the aughts given that it means leaving it up to an innocent officer to do the dirty work.

    Nowadays police seem to be desperately eager to notch their belts with kills like a WWII bombardier. Was it always this way, and the don't-stress-a-cop stuff was all pro-police propaganda?

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

  • identicon
    Peter, 2 Jul 2021 @ 2:28am

    As my maths teacher said...

    Does not matter how good you are at maths, if the answer is absurd, check your working.

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

    • identicon
      Anonymous Coward, 2 Jul 2021 @ 5:55am

      Re: As my maths teacher said...

      A skill no longer taught, it seems is to do a rough approximation to see if your answer is in the right balpark. This was especially useful in the days of log tables and slide rules, where it was all too easy to get the right digits, but put the decimal point in the wrong place.

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

  • identicon
    Anonymous Coward, 2 Jul 2021 @ 7:17am

    Fifth Circuit: "It became necessary to burn the victim down to save him."

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

  • identicon
    Anonymous Coward, 2 Jul 2021 @ 4:28pm

    It's pure sophistry to speculate about the officers' "non-lethal options" in a situation in which doing literally nothing at all would've improved the victims chance of surviving.

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


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