Qualified Immunity

No Qualified Immunity for Cop Who Shot and Killed a Suicidal Man, Says Federal Court

“An officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”

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Albina Roque called 911 on May 2, 2017, to report that her son, Jason, was threatening to kill himself. When officers from the Austin Police Department arrived on the scene, Jason was pacing in front of his house, with a black gun—later determined to be a BB gun—in his waistband. "I'll fucking kill myself!" Roque said as he turned away from the officers and pointed the gun at his head.

"Put the gun down," yelled one of the officers. Video footage shows what happened next: As Roque began turning back towards the officers, with the BB gun raised in the air, he was shot by Officer James Harvel. That shot caused Roque to drop the gun. Harvel then quickly fired twice more. The third shot killed Roque.

Roque's parents sued Harvel in federal court for using excessive force against their late son in violation of his Fourth Amendment rights. Harvel countered by invoking the controversial doctrine of qualified immunity, which shields state officials from being held civilly liable if the actions that they are being sued over did not violate a "clearly established" constitutional right.

In a ruling issued this week, the U.S. Court of Appeals for the 5th Circuit denied qualified immunity to the officer who fired the fatal shot. "By 2017, it was clearly established—and possibly even obvious," wrote Judge Don Willett in Roque v. Harvel, "that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene."

In Tennessee v. Garner (1985), the U.S. Supreme Court said that a "police officer may not seize an unarmed, nondangerous suspect by shooting him dead." Harvel and his lawyers argued that the present case is different. "All of the officers," they maintained, "including Officer Harvel, believed that after the first shot, Roque was still armed. Roque was not compliant with police commands, was not running away or surrendering, but was armed, mobile, and capable of firing his weapon at his mother."

The 5th Circuit took a different view. "As the video indisputably shows, [Roque] was unarmed and stumbling into the street, moving further away from anyone else," after Harvel shot him the first time. "Whether a reasonable officer would have thought Jason was incapacitated or a threat to his mother," the Court held, "is a question for the jury to decide."

It's a welcome result. All too often, the federal courts seem to go out of their way to defer to law enforcement in such cases. With qualified immunity denied to the officer here, this case is one big step closer to trial.

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  1. He said he wanted to kill himself; perhaps those nice police officers were just trying to be helpful?

    1. Libertarians for legalized suicide!
      We already support gender confirmation surgery for kids and legalized methamphetamine and heroin vending machines in elementary schools so why not take it a step further?

    2. Is assisted suicide legal in this state? In any state?

  2. Speaking of suicidal, how about that melanin enhanced Nation of Islam follower that just … wait for it … actually killed a Capitol police officer.

    White Knight hardest hit after surely praying all afternoon for a “Trumpist dick sucker” to have been the perpetrator …

    1. I thought he was a member of the Hotep Nation? Remember wypipo, Black people was kangs and kweens in Africa and dey built da pyramids n shiet!

      1. You speak as though you have cred.

  3. DC Captiol went into lockdown for deranged person today cops got him and the left equating this as a continuation of the Jan 6 “insurrection”. probably just a loon just like a few years ago when the woman tried to drive thru the same barraccads. Now they are talking the fencing will stay up till may because of this

    1. A black Islamic insurrection, to be sure.

      1. Obviously a Republican Insurrectionist!

  4. “Hey, you can’t sue me! I got dat… dat… dat… Quantified Incompetence thing!”

  5. There doesn’t seem to be bodycam footage of the shooting. Which makes my eyebrows raise with skepticism towards the cops.

    Just some potato-cam surveillance video. At least that’s all I could find, and KXAN was willing to show. https://m.youtube.com/watch?v=t2Y6Jn8J0kc

    I can’t tell where he was running in this snippet, nor if he was running to somebody. I also can’t hear if Roque was yelling anything during or just after that would make the responding officers think he was going to try and hurt someone else. Which you can do without a gun.

    I also can’t find a photo of the “BB gun” Roque was carrying. Knowing our shitty media, it’s an Airsoft replica of a real gun. Wouldn’t be the first time.

    Odd case for Willett, who’s usually a reasonable jurist, to pick for yanking QI.

    1. Willett is sticking QI in Scotus’s face. Even the lefties have noticed.
      https://slate.com/news-and-politics/2021/04/don-willett-qualified-immunity-police-accountability.html

      Willett is, in other words, a very conservative jurist. But unlike so many Trump nominees, he does not seem to be a rank partisan in robes. Willett has embarked upon an impressive and even courageous crusade for police accountability, challenging Supreme Court precedents that shield both state and federal law enforcement from liability when they brutalize civilians. Traditionally, it’s left-leaning judges who try to bend the law toward justice for victims of police violence. Willett, however, has become arguably the most vocal advocate of reform in this area of law among lower court judges. And there are already subtle signs that the Supreme Court is listening.
      The chief target of Willett’s ire is the doctrine of qualified immunity, which limits the scope of federal civil rights law. The actual statute, Section 1983, that grants civilians the ability to sue state and local law enforcement in federal court for violating their constitutional rights, says nothing about qualified immunity. But the Supreme Court has grafted this doctrine onto the statute and used it to immunize most officers from civil suits. Under qualified immunity, a victim of police misconduct must prove two things before their case can proceed to trial: first, that the officer violated a constitutional right, and second, that this right was “clearly established” at the time of the offense. If the victim flunks either test, the officers get qualified immunity, the case is thrown out, and the victim never even gets their day in court.
      Willett has consistently criticized both the doctrine of qualified immunity and its perverse consequences. In one opinion, he wrote “to register my disquiet over the kudzu-like creep of the modern immunity regime.” As he summarized it: “No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.” No wonder that “to some observers, qualified immunity smacks of unqualified impunity.” Willett concluded by adding his “voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration” of the doctrine.

      1. Oh, he’s totally an iconoclast. It’s just there likely are better police misconduct cases he could use to take an axe swing at the shit tree that is QI.

        I admit, I can’t see shit in that video. Maybe this kid was just running, and not threatening anyone? Two seconds after he indisputably was threatening people with a deadly weapon though, is a slender reed to hang this officer on. Worked for Michael Drejka though. Albeit he wasn’t a cop.

      2. Ahhh slate that’s why it’s a retarded take. The left loves qualified immunity. Imagine being ably to sue teachers, CPS agents, and any other Gov employee personally. The left does not want to end qualified immunity

    2. Which hurts worst? Your back or your legs? The end result of twisting yourself into a pretzel is generally pain. Your comment was as pretzelized as they come, as you draw convoluted conclusions from a 3 second snipped of video that shows the guy dropping the gun and running away. You should be ashamed of yourself.

  6. “An officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”

    But the man was threatening his own life. Its permitted to kill in order to protect the lives of others!

    1. Plus, your life belongs to the state. You can’t expect the state to stand idly by while its property is damaged.

  7. Don’t worry you’ll get more of this policing under feeble Joe and his psychotic VP.

  8. “By 2017, it was clearly established—and possibly even obvious,” wrote Judge Don Willett in Roque v. Harvel, “that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”

    I seem to recall this Willett fella was nominated to the circuit court by literal Hitler. Good thing Reason stepped up to drive that guy out of office.

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  10. Did the cop have time between the first shot and the others to re-assess the situation and realize that the guy had dropped his gun and was not moving towards anyone? It’s common advice in a self-defense situation to fire multiple shots or keep firing until sure the danger is over, and I expect cops are trained similarly.

    But that’s a question for trial, not a reason to avoid any trial due to qualified immunity.

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