EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, June 27, 2021

Fifth Circuit Grants Qualified Immunity To Officers Who Tased Man Soaked in Gasoline, Knowing it Would Light Him on Fire

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).

Judge Willett was citing to Taylor v. Riojas and McCoy v. Alamu, the two cases at the heart of my recent essay, The End of Comparative Qualified Immunity. And, according to Judge Willett, he dissented for three reasons:

First, the panel applied a too-stringent standard at the 12(b)(6) stage. Respectfully, the panel assessed Plaintiffs’ facts instead of accepting them. 2 The question at the motion-to-dismiss stage is simply stated: Have Plaintiffs alleged “enough facts to state a claim to relief that is plausible on its face”?3 That’s the test—facial plausibility—and these appalling allegations satisfy it.

Second, the panel held that setting Olivas on fire was perfectly lawful under the Fourth Amendment. Igniting Olivas could not have been unreasonable, the panel surmised, because “the officers had no apparent options to avoid calamity,” and it was “not apparent what might have been done differently to achieve a better outcome.” Such speculation is out of place at the motionto-dismiss stage. This is exactly why we have discovery. In what legal universe is it not even plausibly unreasonable to knowingly immolate someone?

Third, the panel opinion is at odds with recent Supreme Court decisions reinvigorating the “obviousness” principle in cases involving clear constitutional abuses. Twice in recent months, the Court has directed this court to be less reflexive in granting qualified immunity in cases involving, and absolving, egregious behavior. Taking Plaintiffs’ horrific allegations as true—as we must at this stage—these officers knowingly inflicted the very tragedy they were called to prevent. It seems incontestable that this case, at minimum, merits factual development.



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Qualified immunity must go! This is horrifying.

Posted by: Debra Fulton | Jun 28, 2021 5:15:49 AM

End qualified immunity. Police and prosecutors who willingly violate citizens rights should be imprisoned and those who do unwillingly should be immediately fired.

Posted by: Robert | Jun 30, 2021 8:55:03 AM

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