Qualified Immunity

5th Circuit Grants Qualified Immunity to Cops Who Ignited a Suicidal, Gasoline-Drenched Man by Tasing Him

The appeals court concluded that the officers' use of force was reasonable in the circumstances.

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Gabriel Eduardo Olivas doused himself with gasoline, but it was the cops who set him on fire. They were there to help him.

Last week the U.S. Court of Appeals for the 5th Circuit ruled that Jeremias Guadarrama and Ebony Jefferson, the Arlington, Texas, police officers who fired Tasers at Olivas, igniting him and burning his house down, are protected by qualified immunity, a court-invented doctrine that shields government officials from federal civil rights claims unless their alleged misconduct violated "clearly established" law. While Olivas' family argued that Guadarrama and Jefferson used excessive force, a unanimous 5th Circuit panel concluded that their actions were reasonable in the circumstances.

On July 10, 2017, Olivas' son called 911 to report that his father was threatening to kill himself. According to the 5th Circuit's summary, Olivas' son also said his father was threatening to "burn down their house." That assertion contradicts the family's account, which the court was supposed to accept as true in determining whether the officers deserved qualified immunity. The family maintains that Olivas "did not threaten to harm his wife, his son, or anyone else in his home."

Upon entering the house, Guadarrama smelled gasoline. Olivas' wife, Selina Marie Ramirez, directed Guadarrama, Jefferson, and Officer Caleb Elliott to a bedroom, where they found Olivas "leaning against a wall and holding a red gas can." According to the family's account—which, again, the 5th Circuit was supposed to accept as true in the context of this ruling—Elliott shouted to the other officers, "If we tase him, he is going to light on fire!" Elliott discharged pepper spray in Olivas' face, which temporarily blinded him.

Around the same time, Olivas poured gasoline over himself. According to the 5th Circuit, it is not clear whether that happened before or after Olivas was hit with the pepper spray. The court says Guadarrama and Elliott "noticed that Olivas was holding some object that appeared as though it might be a lighter." Guadarrama "fired his taser at the gasoline-soaked man, causing him to burst into flames." Jefferson also fired his Taser, although he initially denied that he had done so.

"The fire spread from Olivas to the walls of the bedroom, and the house eventually
burned to the ground," the 5th Circuit notes. Olivas was taken to a hospital, where he eventually died from his injuries. The officers thus precipitated the very outcome they were ostensibly trying to prevent.

Ramirez sued the officers under 42 USC 1983, which allows people to seek damages when government officials violate their constitutional rights. She argued that using Tasers in these circumstances was clearly reckless and that the officers should instead have used other techniques to control the situation.

"It is undisputed that a Taser can cause death in more situations than would use of soft hand techniques or impact weapons applied to certain portions of a person's body," the complaint says. Since Elliott said he was standing about six feet from Olivas, it adds, he "could have easily" subdued the blinded man by "rushing and grabbing" him, and "other officers in the room could have done the same." By firing their stun guns even after they were warned of the likely result, Ramirez says, Guadarrama and Jefferson violated the Fourth Amendment, which prohibits excessive force during searches and seizures.

When Guadarrama and Jefferson asked U.S. District Judge Mark Pittman to dismiss the lawsuit based on qualified immunity, he concluded that more information was needed to determine whether that doctrine applied, opening the door to pretrial discovery. Guadarrama and Jefferson appealed that decision to the 5th Circuit, which saw things differently.

"The severity of the threatened crime, i.e., felony arson, was considerable," the appeals court says. "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."

Notwithstanding Ramirez's argument that other kinds of force would not have posed the same deadly risk, the 5th Circuit says it is hard to see what else the officers might have done. "Although the employment of tasers led to a tragic outcome, we cannot suggest exactly what alternative course the defendant officers should have followed that would have led to an outcome free of potential tragedy," it says. "We emphasize that the reasonableness of a government official's use of force must be judged from the perspective of a reasonable official on the scene, not with the benefit of 20/20 hindsight."

Would a "reasonable officer," knowing Taser probes give off sparks that could easily ignite gasoline, disregard that hazard, especially after a colleague had emphasized it? Given Elliott's clear warning about what would happen if his colleagues fired their Tasers, "20/20 hindsight" was hardly necessary to anticipate "a tragic outcome."

The company that makes Tasers warns that their use "can result in a fire or explosion when flammable gases, fumes, vapors, liquids, or materials are present." It says "use of a [Taser] in presence of fire or explosion hazard could result in death or serious injury."

Ramirez's complaint notes that the officers underwent training in which they "were reminded of what they already knew regarding use of a Taser electronic control weapon in a situation in which flammable substances and/or vapors are present." In those circumstances, they were told, "a Taser should not be used." Hence when Jefferson and Guadarrama "chose to shoot their Tasers at Mr. Olivas," the complaint says, "they knew that he would catch fire. The concept was not new to them but one they had learned years before."

The 5th Circuit presents Olivas as a dangerous felon, a would-be arsonist who was threatening to kill his family and the officers on the scene. Ramirez—whose factual claims, it bears repeating, the court was supposed to accept in the context of this appeal—paints a different picture.

"Mr. Olivas was at home, telling family members that he would kill himself by lighting himself on fire after dousing himself with gasoline," the complaint says. "He did not threaten to harm his wife, his son, or anyone else in his home. In fact, he never harmed his wife, his son, or anyone else on that day. Rather, Mr. Olivas was distraught and seeking attention. Mr. Olivas did not intend to commit suicide, and he would not have committed suicide. Mr. Olivas never ignited a lighter or any other device to catch himself on fire. Instead, Defendant police officers arrived at his home, Tased Mr. Olivas (knowing that he was drenched with gasoline), and caused Mr. Olivas to catch fire and die after lingering in excruciating pain for days."

The lawsuit suggests that the officers also erred in failing to "remove people other than Mr. Olivas from the home" rather than "confronting and Tasing Mr. Olivas with family members in the house." Had the cops evacuated the house, they could have avoided the alleged threat to those relatives, which the 5th Circuit viewed as a justification for using what predictably turned out to be deadly force.

While the 5th Circuit endorsed the claim that Olivas was planning to burn down the house, the complaint says that is not true. Guadarrama initially thought Olivas might be splashing gasoline around the house, Ramirez says, but "after arriving at the residence" he "learned that the residence had not been doused with gas."

The 5th Circuit was unfazed by these contradictions. "Accepting the pleaded facts as true and construing them in the light most favorable to Plaintiffs, neither officer's conduct was unreasonable, nor was the force they employed clearly excessive," it says. "Given the horrendous scene that the officers were facing, involving the immediate potential for the destruction of lives and property, the force used—firing tasers—was not unreasonable or excessive, and consequently we hold that the officers did not violate the Fourth Amendment and are thus entitled to qualified immunity."

The best that can be said of this decision is that the court did not dodge the constitutional issue, as judges often do in cases involving qualified immunity. The Supreme Court has said a court is free to dismiss claims under 42 USC 1983 once it determines that the rights police allegedly violated were not "clearly established," meaning it can leave unresolved the question of whether their actions were constitutional. Instead of resorting to that dodge, the 5th Circuit has forthrightly declared that the Fourth Amendment does not prohibit police from firing Tasers at a suicidal, gasoline-drenched man.

"We respectfully disagree with the panel's conclusion," says T. Dean Malone, Ramirez's attorney. "This conduct so obviously violated the Constitution that no prior case with similar facts was necessary." Malone says he is seeking both a panel rehearing and review by the full court.

"Pursuant to 5th Circuit Rule 47.5," a footnote in the decision says, "the court has determined that this opinion should not be published and is not precedent." According to that rule, "The publication of opinions that merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." But the rule adds that "opinions that may in any way interest persons other than the parties to a case should be published." Publication may be warranted, for example, if the decision "concerns or discusses a factual or legal issue of significant public interest."

In other words, the 5th Circuit panel believed this decision was a straightforward application of Fourth Amendment case law of no interest to anyone but the plaintiff and the defendants. Given that rulings like these prevent plaintiffs such as Ramirez from even trying to prove their constitutional claims, even when their allegations involve striking recklessness (as in this case) or deliberate misconduct (as in others), critics of qualified immunity probably will disagree.

[This post has been revised to correct the plaintiff's name.]

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  1. I bet they lit him up on purpose and bragged to their envious buddies over beers that night before sleeping soundly.

    1. Bringing back some childhood memories, eh?

    2. “Sleeping soundly” WITH YOUR WIFE!

      1. If you two are just gonna be pricks, why don’t you do it somewhere else. You think you’re funny or something. We pity you that you’re too juvenile to be embarrassed.

        1. & if you wish to play moderator/mother do so on your own blog. Otherwise, stop pretending you have any authority here Cartman.

    3. Are you saying it’s a bad idea to send in armed morons to save a crazy person?

      1. It’s a bad idea to arm morons.

        Somehow tasers really bring out the stupidity. First, there was the cop trying to get a protestor out of a tree, that stood underneath and fired the taser upwards – and was surprised and injured when the guy fell on him. Then there are the many times gangs of cops have interpreted involuntary twitching from tasering as “resisting” and piled on with more force – although I don’t know if that’s stupidity or sadism.

        But firing a taser with gasoline vapor in the air is not only extra-stupid, but something they had been specifically warned against. Barney Fife would be ashamed to be associated with these idiots.

    4. Had they broken out the marshmallows, you might have a point.

    5. Have you smelled burned flesh? Probably not. However, in those situations, a few jokes over a couple of drinks may get you through.

  2. The department is hoping this story flames put quickly.

  3. Those old Keystone Cops flicks were the best case scenario of policing. They should have had a warning scrolling that the reality of policing is and will always be much worse.

  4. Suicidal? Law enforcement is there to help.

    1. Well, would you prefer a trained government social worker or Psych? The VA, the second largest medical entity in this country can’t reduce suicide rates either. Actually, the VA’s paperwork losing Affirmative Action hires have accelerated suicides. The Affirmative Action hired VA schedulers have killed more people than covid.

  5. Gabriel Eduardo Olivas doused himself with gasoline, but it was the cops who set him on fire. They were there to help him.

    No, no they weren’t.

    1. seems they DID try to help the others in the house, though they did so badly.

    2. His family could have done something. They didn’t. So, they called the Cops. Are they innocent?

    3. You just read that sentence incorrectly. The cops were there to help him *catch on fire*.

  6. According to the family’s account—which, again, the 5th Circuit was supposed to accept as true in the context of this ruling—Elliott shouted to the other officers, “If we tase him, he is going to light on fire!”

    To be fair, they thought that was a suggestion. E.g., “Hey guys, if we tase we’ll get to light him on fire!”

  7. The lawsuit suggests that the officers also erred in failing to “remove people other than Mr. Olivas from the home”

    Damn right. Step one is always to get rid of potential witnesses.

    1. or chance victims.

      I’d have tried to clear the house of all non-involved people. Houses can be rebuilt bodies not so much.

  8. “Gabriel Eduardo Olivas doused himself with gasoline, but it was the cops who set him on fire. They were there to help him”

    Hahahahahaha, don’t need to read any further! Fucking morons!

  9. was not unreasonable or excessive, and consequently we hold that the officers did not violate the Fourth Amendment and are thus entitled to qualified immunity.”

    the 5th Circuit has forthrightly declared that the Fourth Amendment does not prohibit police from firing Tasers at a suicidal, gasoline-drenched man.

    I’m a little confused here.

    QI is for when an agent of the state *fucks up* or *acts illegally*.

    If using the taser was not a violation of the victim’s rights and was reasonable under the circumstance (as the court held) – then why the need for a QI claim?

    Because state agents acting legally and appropriately is covered by Absolute Immunity. QI was a doctrine created by the courts not that long ago to provide cover to *mistakes and criminal behavior* by police – and the court says this was neither.

  10. They probably should have called the fire department instead.

    What is a cop going to do against a guy soaked in gasoline and has a lighter?

    They don’t have a lot of options.

    1. Yeah, that’s what happens when you give every shit job to a single organization and then give them two tools to deal with everything – tase or shoot.

      I guess its better than in the past when they only had ‘shoot’ but still . . .

      1. Until now, I’d not known that a Taser makes sparks, including sufficient to ignite a gasoline soaked perp. However, shooting him “in the leg” as many nitwits fantasize is workable most of the time might here actually have helped (apart from the obvious departmental resistance thereto, even given the extraordinary facts here), except that the ignition from the round might just as well have lit up the perp. And, of course, after Rodney King (beating of high on drugs perp beside a highway where if he got away he’d likely cause multiple car crashes, among other things) and more recently Eric Garner (alleged illegal chokehold), cops can no longer use physical bodily force against sainted criminals, and so are only left with tase or shoot. We have allowed this to happen to ourselves, and no amount “community involved policing” will change the facts of life that some perps need to be beaten and indeed doing so in lieu of shooting them to death is a pretty big favor, particularly since they’re the one who occasioned this meeting in the first place (despite loony black claims that they are “hunted” by cops, really?).

        1. There was a terrorist/prisoner transfer in Africa. The terrorist/prisoner was being handed over from one agency to another. During the handover, the terrorist/prisoner decided to fight. Several people shot OC spray into the guys face. He was coated from the chest up. One or more hit him with a taser, he burned from the chest up and to died on the spot.
          The moral of the story is, don’t resist, some Jackass may kill you.

        2. Shoot him in the leg? Might have helped? Have you fired a gun in close quarters? They cause a gout of flame and sparks too, they were inside a room filled with fumes.
          His family called the Cops which probably really set the guy off. No pun intended.

        3. Shooting in the leg is intent to injure. Which is illegal (at least it is in AZ even for law enforcement).

  11. Also, does not one have any personal responsibility? The guy chose to soak himself in gasoline.

    His family chose to stay in the residence instead of evacuate.

    Police are a necessary evil, the real problem is this idea that 911 (or the government) is a magical solution to your problems.

    1. Sure, the guy chose to soak himself in gasoline.

      The cops chose to tase him instead of withdraw or de-escalate the situation. Personal responsibility goes both ways.

      1. Actually, the article specifically mentions that he may not have been soaked with gasoline until after they pepper sprayed him.

        Did the cops pepper spray him and cause him to fall and get doused with gas?

        As I read the article, it seems to be a point of debate.

        1. You all miss the point, the big point: the moron actually had brought GASOLINE into the HOUSE. End of story.

      2. De-escalate. Yeah. A taser de-escalates. That is the tool they are trained to use unless they were a Psych in a previous life. Do Cops have time to get a Psych degree?

        1. If we fire them, they will certainly have time to seek productive employment.

  12. Was this a remake of the 1980s Michael Jackson Pepsi commercial?

    1. Charter member of the Ignited Negra College Fund.

  13. Guadarrama left the police department in January and Jefferson is still an Arlington police officer, Malone said.

    If you can fuck up and burn a man alive and still go about your job, there’s something disturbingly wrong with you.

    1. If you can spin one side of an argument and ignore the salient fact that the perp supplied the combustible fuel, there’s something disturbingly wrong with you.

      1. The “perp” was obviously mentally ill jackass. This doesn’t completely resolve him of responsibility, but stop acting as if it was a very normal person under very normal circumstances who is completely responsible.

    2. Most Cops see worse scenes of death and destruction caused by lunatic civilians, regularly. The moron soaked himself in gas, is he at all responsible? When you call a Cop, expect Cop tactics. If you think that your family member may be killed, step up and handle the situation yourselves. Hopefully, the suicidal shithead won’t kill you too.
      You can take American city dwellers on a free vacation to Vegas. Give them free beer and free lap dances at the strip clubs. They will complain that the beer wasn’t cold enough and the tits were not big enough.

  14. “Would a “reasonable officer,” knowing Taser probes give off sparks that could easily ignite gasoline, disregard that hazard, especially after a colleague had emphasized it?”

    The courts must believe that a “reasonable officer” is pretty damn stupid. Soft bigotry of low expectations and all that…

    1. Yes, I’ve noticed in a lot of decisions “reasonable officer” seems to mean “the stupidest possible reasonable officer.”

      1. In dealing, of course, with the “stupidest possible reasonable member of the sainted public”.

        1. Somehow, the “loving public” always escape scrutiny.

        2. I guess you missed the part where the officers knew this was possible as told during training and as warned prior to the event itself. So it’s not about being a saint, it’s about listening to what those around you are saying before acting.

  15. The capitol is surrounded by razor ribbon and troops, IF you like your Police state, you can keep your Police state.

    1. Wasn’t “troops in the capital” the beginning of the end for Rome or was it diversity? I forget.

  16. This is, indeed, one of those “split-second decisions” which cop apologists frequently refer to.

    But it doesn’t seem like a very *good* decision.

    What a tragic situation.

  17. When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

    1. They don’t have any of that “nonsense” in third world countries. Just Dictators, their thugs, brutal prisons, and the freedom to kill your neighbors and take their belongings.

  18. Even among the usual farces that are qualified immunity cases, the Fifth Circuit once again manages to distinguish itself as the absolute pinnacle of absurdity, sinking to lows rarely glimpsed by the other 12 circuits. These officers deliberately set a man on fire (since they allegedly took the time to note that would indeed be the consequence, as the safety literature described, making this clearly not a split second bad decision when viewed in the most favorable light), to prevent him from setting himself on fire, and this is supposed to be reasonable force? As expertly demonstrated by this decision, the Fifth Circuit is completely devoid of intellectual honesty in their QI jurisprudence, and should be ashamed of themselves generally, and Circuit Judges Jolly, Stewart, and Oldham in particular have brought dishonor to their bench and disgrace to the American justice system, having beclowned themselves with their poorly reasoned drivel.

    1. I like your use of “beclowned”, I have to remember it for future use as most of what I see on the left looks like a three-ring clown car circus. Here, sadly, the 5th Cir. merely prevented the family from monetizing their departed, as so many other ghetto dwellers have successfully done. Of course, being a liberal you think money grows on trees rather than coming from taxpayers, and it’s perfectly appropriate to divert tax revenue to, one ghetto family at a time, giving them a shortcut to the lottery, when there are so many potholes to fill, etc.

      1. If most officers think as little about the general public like you do, it’s quite easy to see why they set this guy on fire and why you would’ve as well. Seek help.

  19. Did anyone notice? Not a single spam-bot in this comment thread. Perhaps every article should mention tasing and gasoline to keep them away.

    1. You spoke too soon. Read it again.

  20. I mean, I’m not really blaming the cops here.

    They pepper sprayed him and couldn’t subdue him.

    So what’s next?

    A) Charge and get into a physical altercation with a man doused in a flammable substance, that’s going to surely absorb into your clothes if you’re wrestling, and who appears to have an ignition device?

    That either results in them all dieing, including the Cops, in a fire. Or this man going to jail. Forever. For endangering his family, children, and the cops. Certainly he never sees those kids again.

    B) They shoot him. He’s dead, fire still might spark.

    C) they say fuck this, walk away, hope goober was just attention whoring and leave his wife to deal with him. Which obviously wasn’t working, hence her calling the cops.

    You can say they should’ve tried crisis negotiations, but if a guy isn’t listening to his wife n kids he isn’t listening to anyone.

    1. Only logical comment thus far.

    2. Get the family and themselves out of there, then get in someone with skill in talking down crazy people. Or just wait. Worst case is he lights the fire – but maybe he would not have, if the cops hadn’t lit it. Firing that taser was the WORST choice. It made sure there would be a fire, with the cops and the family still in the building.

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