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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