Qualified Immunity

Judge Says Cops Need Qualified Immunity To 'Stop Mass Shootings'

In fact, the legal doctrine lets cops to get away with outrageous conduct.

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Judge James C. Ho of the 5th Circuit Court of Appeals offered a novel theory this week: "If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them."

A majority of judges hearing the case disagreed.

The story begins in 2013, when sheriff's deputies in Kaufman County, Texas, responded to reports of a man terrorizing a neighborhood by kicking mailboxes, pointing a gun at residents' houses, and yelling, "I'm just trying to get back what's mine." One complainant stated that there was a man "walking up and down the street, screaming and firing a gun."

Upon arriving at the scene, Officers Gabriel Hinojosa and Matthew Hinds, a defendant in the suit, stated that they encountered a black male wearing a brown shirt; he allegedly fired one round at the officers before ducking out of sight on two occasions. Then Gabriel Winzer, wearing a blue shirt, "emerged from behind a house and biked toward the officers," Ho writes, prompting them to open fire.

Winzer retreated. He was found several minutes later in his father's backyard with four gunshot wounds to his chest, shoulder, and upper back. His dad was with him, "trying to comfort and revive him." As Winzer lay dying, officers attempted to handcuff him, but he resisted, so they tased him. Only then were paramedics allowed to enter the scene, where he was pronounced dead shortly thereafter.

Winzer was 25 years old. He was mentally handicapped. And he probably wasn't the man terrorizing the neighborhood.

Ho's dissent defends the officers fiercely, disregarding all evidence that contradicts the idea that Winzer was guilty. So he mentions that Winzer's father had several firearms in his home, but he omits the fact that Kaufman County's own sheriff confirmed that a gun was never found on Winzer. He also ignores the fact that the officers themselves say the man who fired at them was dressed differently. And he skips over an implausible part of their testimony—the part where Winzer "brought his hand gun to a firing position" while riding a bicycle.

"It is unknown how many lives were saved by these deputies on April 27, 2013," writes Ho. "What is known, however, is that Kaufman County will now stand trial for their potentially life-saving actions—and that its taxpayers, including those who will forever be traumatized by Winzer's acts of terror, will pick up the tab for any judgment."

The particulars of the case aside, Ho's support for the officers rests on the unfortunate legal doctrine of qualified immunity. This holds that public servants can violate someone's constitutional rights without fear of civil suits if those rights have not been "clearly established" by previous case law. In the case before the court, the county argued that the officers did not breach Winzer's Fourth Amendment rights because they had "probable cause" to think Winzer "posed a threat of serious bodily harm."

Ho asserts that qualified immunity is an imperative to protecting the public; without it, he implies, violence will proliferate, because officers will be too afraid to use lethal force. In reality, the contrary is true. Time and time again, civil servants—namely police officers—have used qualified immunity to avoid accountability for their outrageous, and oftentimes violent, actions.

Consider Corbitt v. Vickers, in which the 11th Circuit gave qualified immunity to a police officer who shot a 10-year-old boy in the knee as the cop was trying to shoot the family's nonthreatening dog. Although the officer faced no apparent threat, the court ruled that he did not infringe on anyone's constitutional rights because he meant to shoot the dog, not the child. The family was denied compensation for their medical bills.

Or take Jessop v. City of Fresno, in which the 9th Circuit granted qualified immunity to two officers who allegedly stole $226,380 while conducting a search warrant. The court acknowledged that "the City Officers ought to have recognized that the alleged theft was morally wrong," but it ruled that they "did not have clear notice" that stealing the property violated the Constitution.

The list of abuses goes on, but it does not seem to have moved Ho. Thankfully, this time, he was outnumbered.

NEXT: The NYPD Officer Fired for Choking Eric Garner Is Suing To Get His Job Back

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  1. “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.”

    “If we want to stop mass shootings, we should stop punishing ordinary citizens who put their lives on the line to prevent them.”

    1. It really is that simple. Soooo fucking simple …. judge the cop as an ordinary citizen would be judged.

      If I had shot the wrong guy 4 times …. would I get a paid vacation and be free to wander the streets for months while everyone debated my actions?

      1. Obviously that’s an unreasonable comparison. First, you need to establish that you believe the people around you have declared war on you. Next, convince a couple of judges to agree with you. Then, yes, you can expect paid vacation for shooting random people.

  2. the court ruled that he did not infringe on anyone’s constitutional rights because he meant to shoot the dog, not the child.

    “I would not harm thee for the world, Brother; but those standest where I am about to shoot.”

  3. It is unknown how many lives were saved by these deputies on April 27, 2013

    Well that only proves that Ho don’t know math. 2 officers divided by 0 lives saved equals infinity lives saved

    1. Those lives were undefined.

      1. Does the man lying on the ground with four bullet holes in his chest count as saved?

  4. “What is known, however, is that Kaufman County will now stand trial…—and that its taxpayers… will pick up the tab for any judgment.”

    In fairness, he is absolutely correct about this.

  5. What in the world does this have to do with violating his constitutional rights?

    Unless I’m missing something, we have two things here:

    1. A screw up. In the heat of the moment, having been very recently shot at, a couple of cops panic fired at the first thing that moved and ended up killing someone by mistake.

    2. Worrying that they’d get in trouble for that screw-up, they lied. They said he raised his gun at them. Obviously, not having a gun, this didn’t happen. Whatever they saw as this dude came around the corner toward them on a bike, it wasn’t him pointing a gun.

    So it should be open-and-shut. They are personally covered by qualified immunity. They were doing their jobs. They screwed up. Not in the “we are going to violate someone’s rights” way, but in the “we got panicky and shot at the wrong guy after we got shot at” way. The state is liable for the wrongful death.

    Whether they should keep their jobs or not is another matter.

    1. Is this really elaborate sarcasm? They ended a man’s life without probable cause. There’s no “oops, we messed up, but it’s still his fault” exception in the 4th amendment.

      1. Yeah, that take is exactly what I am talking about. It takes an extraordinary amount of tunnel vision to have that point of view.

        If they had hit a pedestrian with their car during a chase, they would not have committed any constitutional violation. But he’d still be dead. If they had fired at the gunman and hit a kid in a house in the background it wouldn’t be a constitutional violation… but the kid would still be dead.

        This guy did nothing wrong. He’s riding a bike and he gets gunned down. They have a wrongful death tort. And it is an easy win.

        But a civil rights violation? Nobody is claiming that it was anything other than shooting the wrong dude. That is a screwup.

        Kicking in Jose Guerreno’s door and opening fire on him in his kitchen, then keeping medical care away for two hours… that’s a rights violation. Their procedures, tactics and enforcement choices lead directly to his death.

        Holding a drunk guy in his underwear at gunpoint, screaming that you are going to kill him while issuing ridiculous and contradictory commands – then pumping 5 shots into his back…. that’s a civil rights violation.

        Telling some vagrant that you are going to F him up, and you and 6 of your buddies beating him to death while he screams for his dad and that they are killing him… that’s a civil rights violation.

        This is a screw-up. They were in a gunfight with a random crazy dude who had just shot at them. In the middle of that scenario, some other dude bursts in from the direction where crazy dude just ran. They panic and shoot the guy. That’s a human error, not a systemic error.

        I don’t know where you are getting “it’s still his fault”. Dude just rode his bike and ended up in the wrong place at the wrong time. Saying “It isn’t a rights violation” isn’t the same thing as saying it is his fault. The police are 100% at fault. Making a mistake doesn’t absolve you of responsibility. But in this case, they were acting in the course of their job.

        This is pretty much exactly the scenario qualified immunity is designed for. Police, in the course of their duties cause harm. The government is on the hook, not the individual officers.

        Now, after the fact… when they attempted to cover up their culpability…. that’s a different story. They probably should be prosecuted for those actions.

        This is something our society needs to come to grips with. If you are going to put a million armed police on the streets, you are going to get a certain number of screwups. So we can’t pretend that the police are always in the right when they screw up. And we can’t pretend that they are always acting nefariously when they screw up either. Sometimes a screwup is just a screwup. And if we could accept that, maybe they wouldn’t think it was a good idea to lie when they make a mistake. And maybe we wouldn’t have so many chiefs of police calling their officers heroes when they step over the line and cause real harm.

        1. I think your mistake might be in assuming the cops were panic-firing. That’s actually how they are trained, shoot first and ask questions later. If you don’t instantly know the person is <I<not a threat, if you don’t immediately recognize that it’s a cellphone in his hand, you treat him as a lethal threat, you assume that it’s a gun in his hand and you react accordingly. And as long as “proper procedures” are followed, everything’s cool.

          The Constitution provides that nobody shall be “deprived of life, liberty, or property, without due process of law”, which obviously cannot cover accidents, but it seems to me the police are claiming that their sacred “procedures” are in fact “due process”. This wasn’t an accidental shooting except insofar as they perhaps accidentally shot the wrong guy, they very deliberately shot the guy because that is what they have been trained to do, that’s what the law tells them is acceptable behavior. They followed procedure, the guy got his due process, what’s the problem?

          The problem is that this ain’t due process. “Kill anything that moves” is not anything anybody with a lick of sense would recognize as due process.

        2. It was a screw up when they shot him (and a pretty big one since he was dressed differently from the suspect). It crossed the line to civil rights violation when they subsequently tasered him.

    2. I don’t know if they should be prosecuted for murder but shouldn’t the family be compensated for the officers actions?

      1. My apologies just re-read and saw you stated that. But if they had qualified immunity then damages are denied, are they not.

        1. no, it means they are not personally liable. The government is still on the hook.

          But there are usually statutory limits to damages. So you get millions if you get burned by hot coffee from a huge multinational, but a couple hundred grand if you get murdered by the state.

    3. Allegedly been shot at.

  6. Ho was appointed by [wait for it] Donald Trump. Just sayin’.

  7. Just a Ho sticking up for a couple of bitches.

  8. Shoot a police dog and its murder akin to shooting a human cop. Cop shoots your dog and its just another work day.

    That’s how they view you. Expendable. Beneath them. Fun to kill. Cops are no different from criminals.

  9. James Ho, the clinger who was a mouthpiece for torturers? The right-winger known primarily for gay[bashing and superstition? The authoritarian conservative who promotes abusive policing? The Republican polemicist on the wrong side of America history?

    Just another bitter clinger, cranky because he has lost the culture war and is destined for replacement.

      1. You guys needs to keep your gloves up if you wish to try to become competitive in the culture war.

        1. “You guys needs to keep your gloves up if you wish to try to become competitive in the culture war.”

          Asshole bigots should learn they are losing ‘the war’. Here’s a list of your faves who learned something from 1989, unlike you, you fucking ignoramus:
          1) Lincoln Stephens
          2) Walter Duranty
          3) Joseph Davies
          4) Julian Huxley
          5) Upton Sinclair
          6) John Dewey
          7) Jean Paul Sarte
          8) Henry Wallace
          9) Alger Hiss
          10) Malcom Cowley
          11) Edmund Wilson
          12) G. B. Shaw
          13) Lillian Hellman
          14) C. Wright Mills
          15-20)Donald MacLean, Kim Philby, and the remainder of the Cambridge useful idiots
          21) Harold Lasky
          22) Jacques Derrida
          23) Harrison Salisbury
          24) Norman Mailer
          25) Graham Greene
          26) Harry Bridges

          1. What do you perceive Upton Sinclair to have learned from 1989, you disaffected, bigoted, to-be-replaced, right-wing rube?

    1. “authoritarian conservative” — otherwise known as a RINO..

      You do realize those two words are completely contradictive right?

      Almost like when Jimmy Carter [Democrat] cut regulation…
      https://reason.com/2018/12/12/when-democrats-loved-deregulation/

  10. The Bill of Rights was designed to protect the state, right?

  11. >>Ho’d

    1st word 2d PP you made a verb out of a judge

  12. “What is known, however, is that Kaufman County will now stand trial for their potentially life-saving actions

    …that resulted in an innocent man’s death.

  13. It seems to me that we could throw away this qualified immunity garbage simply by making police departments obtain some liability insurance and by doing so you kill two birds with one stone. You get rid of qualified immunity and you take away the excuse of taxpayers being hit with the bill. Granted we would pay the insurance.

  14. “Judge Says Cops Need Qualified Immunity To ‘Stop Mass Shootings’.”

    Really?
    I thought well trained people who know how to use a firearm properly in dangerous situations would be a better bet.
    But what do I know?

  15. An aptly-named National Socialist judge. Many of those tried as Nuremberg likewise claimed they were only following the law, prompted by intentions that were altruistic, therefore good for the common good. The individual good, not so much…

  16. “… by Winzer’s acts of terror…”

    Clearly Judge Ho is unqualified to be a jurist. Winzer had no trial and was denied due process yet based on mere hearsay Ho has found him guilty and found the sentence of death to be justified.

  17. Judge James C. Ho of the 5th Circuit Court of Appeals offered a novel theory this week: “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.”

    A majority of judges hearing the case disagreed.

    Gs up, Hos down.

  18. “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.”

    LOL… Tell that to the entire Broward County government. Top to bottom, complete and utter failure. But yeah, they need to be immune from making horribly shitty decisions. Especially ones that blatantly allow and support a mass shooting.

  19. “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.”

    If the venerable judge pleases, when have police *prevented* a mass shooting? How many times have they even intervened *during* a mass shooting – vice cleaning up afterwards?

  20. “Judge James C. Ho of the 5th Circuit Court of Appeals offered a novel theory this week: “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.””

    ‘[P]ut their lives on the line’ by shooting unarmed people and strangling some guy for selling cigarettes?
    Yep, ‘Thin Blue Line’ right there.

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  22. The hard part is separating those with malicious intent from those who made grave mistakes. Justice Oliver Wendell Holmes stated that “Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.” Those that appreciate this sentiment in self-defenses justifications seem to dislike it when applied to law enforcement. Do we need more case law establishing limits, or better police training? I’d say both. When days, weeks, months, years of mundane police activity is suddenly punctuated by legal violence, ordinary police are expected to exhibit extraordinary judgement and ability.

  23. The “cops” already have too much power. Eric Garner being the perfect example. They need to be restrained. My family and I and I am sure many others who are law-abiding CITIZENS have had their own negative experiences.

    Two decades ago we sued the local Sheriffs department/county for 14th, 4th, and 6th amendment violations that occurred on our private property. We put the deputies and the IA invetigaotr on the stand and they arrogantly lied on the stand. The jury saw this imeadeately based on the jury questionaire forms we read after the trial. And, guess what, there were no perjury charges brought against the cops. Figure that one out.
    We won. The jury deliberated for 30 minutes. And, most of that 30 minutes was filling out the paperwork for the verdict. That is how bad their case was and an example of how freaked up the system is.
    WE are currently in another similar lawsuit with the same Sheriff’s dept. for 14th and 4th amendment violations. The case is such a slam dunk the law firm took it on a contingency. Based on the evidence they know that this is a money tree for them.

    People need to stand up to the injustices that permeate many aspects of policing. WE still have rights, although just barely. Unfortunately, the public education system and media have dumbed people down to those rights. It is our responsibility as citizens to share our stories and educate the ones that have been brainwashed.

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