Police Abuse

This Suicidal, Gasoline-Drenched Man Burned to Death After Cops Tased Him. A Federal Court Says That's Reasonable Force.

"In what legal universe is it not even plausibly unreasonable to knowingly immolate someone?" asks dissenting judge

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Gabriel Olivas burned to death in his Arlington, Texas, home. His house burned down along with him.

The U.S. Court of Appeals for the 5th Circuit last February ruled that the cops who tased the suicidal, gasoline-drenched Olivas—after they had been warned that such conduct would result in him bursting into flames—exercised a reasonable use of force. On Friday, the same court upheld that decision, declining Olivas' family's petition for a rehearing and thus preventing them from suing.

On July 10, 2017, Olivas was experiencing a mental health crisis when his son called the police for help. Upon arrival, Officers Jeremias Guadarrama, Ebony Jefferson, and Caleb Elliott of the Arlington Police Department found Olivas in his bedroom with a "red gas can." Guadarrama admits to smelling gasoline when he entered the residence.

Elliott pepper-sprayed Olivas, leaving him temporarily blind. It was around the same time that Olivas poured the gas onto his body. "If we tase him, he is going to light on fire!" Elliott yelled. The officers had been trained on Taser safety and the ill effects of using the weapon when paired with gasoline.

Guadarrama and Jefferson tased him anyway, engulfing Olivas' body in flames that eventually metastasized throughout the home, burning it to the ground. (As Reason's Jacob Sullum mentions, Jefferson initially denied that before owning up to the facts.) Olivas' wife and son, who were standing nearby, and who had to evacuate as he died, note in their suit that the only person Olivas posed a threat to was himself.

Yet the 5th Circuit employed a perverse logic in determining that the officers acted reasonably. It was for the family's own good, they said—a line of thought that Circuit Judge James C. Ho re-upped as he defended the majority's choice not to revisit the case.

"The fact that Olivas appeared to have the capability of setting himself on fire in an instant and, indeed, was threatening to do so, meant that the officers had no apparent options to avoid calamity," wrote the panel in February. "If, reviewing the facts in hindsight, it is still not apparent what might have been done differently to achieve a better outcome under these circumstances, then, certainly, we, who are separated from the moment by more than three years, cannot conclude that [officers] Guadarrama or Jefferson, in the exigencies of the moment, acted unreasonably."

There's one problem with that argument: The cops' actions caused the very mayhem they allegedly sought to avoid. Olivas could have set himself on fire, the court notes, endangering others and setting the home ablaze. That happened because the cops tased Olivas—not in spite of it.

That irony was apparently lost on Ho, who wrote that "there was no reasonable alternative course of action that the officers could have taken instead to protect innocent lives." The family's lawsuit lists several obvious avenues: namely that the officers could have attempted to evacuate the house, which they did not, or that they could have opted to subdue him, when considering that they were standing only six feet away.

It wasn't lost on Circuit Judge Don Willett, however, who was nominated to the court by former President Donald Trump, and who has been a steady critic of qualified immunity. The legal doctrine gives state actors a green light to violate your constitutional rights unless the precise way the rights-violating conduct played out has been outlined somewhere in a prior court precedent. (Ho, on the other hand, is the same judge who puzzlingly claimed that cops need qualified immunity to "stop mass shootings.")

Put plainly, qualified immunity is the reason that a cop didn't have to face a jury in civil court despite killing a man who had been sleeping. So, too, did qualified immunity shield the cops who allegedly stole $225,000 during a search warrant; the cops who assaulted and filed bogus charges against a man for standing outside of his own house; the cops who beat a man up during a routine traffic stop; the cop who shot a teen on his way to school; and the cop who shot a 10-year-old child while aiming at a nonthreatening dog. The victims in those cases were prevented from suing, not because the government's conduct wasn't egregious, but because there were no pre-existing court precedents with almost the exact same sets of facts.

The lower court in this case withheld qualified immunity from the officers. But the 5th Circuit overturned. "In what legal universe is it not even plausibly unreasonable to knowingly immolate someone?" Willett asks. "How is it reasonable—more accurately, not plausibly unreasonable—to set someone on fire to prevent him from setting himself on fire?"

It would seem difficult to find adequate answers to those questions. Yet somehow the 5th Circuit thinks it has. Willett emphasizes that denying the officers qualified immunity would not vindicate the family's claim. At this stage, it wouldn't even send it to a jury. It would have allowed the plaintiffs to proceed to discovery, a pre-trial procedure where evidence is exchanged. That would have been an opportunity to parse through the viability of those alternatives, which Ho casually dismisses outright.

Clark Neily, senior vice president for legal studies at the Cato Institute, previously told Reason about how qualified immunity undermines the jury process. The founders intended for citizen jurors to make such determinations; now, they're made by judges like Ho. "Three dissenting judges led by Don Willett took the majority to task, both for deciding that question in favor of the police on the basis of zero evidence," says Neily, "and for failing to heed increasingly clear signals from the U.S. Supreme Court that lower courts should be less reflexive in granting qualified immunity to police and other government officials who engage in what at least some people find to be conscience-shocking behavior, such as lighting a mentally disturbed man on fire in front of his wife and son."

Indeed, the Supreme Court has recently zeroed in on the 5th Circuit specifically for its overly granular interpretation of qualified immunity. In November, they overturned a decision granting the protections to a group of prison guards who left a naked inmate in a cell defaced in "massive amounts" of human feces and another freezing cold cell covered in sewage; in February, the Court rejected a ruling giving qualified immunity to a corrections officer who pepper-sprayed an inmate without any provocation.

Unless the Supreme Court intervenes in another 5th Circuit decision—this one—the Olivas family will have to live with the notion that it is reasonable for the government to set a man on fire and destroy a family's home without recourse. "The horrific death of Gabriel Olivas is also suffused in sorrow," concludes Willett. "And while qualified immunity has enjoyed special solicitude at the Supreme Court, perhaps these 'particularly egregious facts' will prompt another meaningful message from the Court, one that marries law with justice (and common sense) and makes clear that those who enforce our laws are not above them."

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60 responses to “This Suicidal, Gasoline-Drenched Man Burned to Death After Cops Tased Him. A Federal Court Says That's Reasonable Force.

  1. What sparked the decision?

    1. Oh c’mon, this is a sensitive matter, don’t fan the flames.

      1. It’s why we need a down-vote button, so comments like these don’t volt to the top.

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    2. Was there any 70s dance music playing when the happened? That would make it a disco inferno.

    3. This decision will ignite further debate.

      1. No need to add more fuel to the fire.

        1. Due to this decision the family will likely be smoldering for some time.

          1. It’s hard to continue to be shocked by stories like this.

            1. Thinking the cops should get a tased of their own medicine.

              1. They do, as part of training. Only problem is they’re not tased in the balls.

        2. As Paris Hilton said, “That’s hot”.

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  2. It wasn’t lost on Circuit Judge Don Willett, however, who was nominated to the court by former President Donald Trump, and who has been a steady critic of qualified immunity.

    This sentence doesn’t exist. Nope. Reason is a progressive magazine devoted to Biden. There’s no way they’d ever give kudos to Trump. Just ignore that sentence and move along. Nothing to see.

    1. Fuck off screetch, go pick your ass instead of cherry picking your arguments.

      1. Why would I pick my ass? Just because you’ve got boils that require a standing desk doesn’t mean I’ve got boo boos on my bum. Project much?

    2. Hey look, squirrel is posting his copypasta again.

    3. And in an article by Bunion no less. Will wonders never cease?

    4. Who did the Reason editors vote for? How many articles have been written about Ashli Babbitt? Why hasn’t ENB written any #metoo articles about Biden? Where were the questions regarding the lack of due process in Giuliani’s disbarment?

  3. So the two officers, having had their low lethality weapons rendered extremely hazardous, used them anyway, because they did not have any better ideas on how to deal with the situation. The court decided they could not be held responsible because the judges did not have any better ideas either.

    That is just great.

    1. Tasers are capable of gas lighting.

    2. Take a stand against the coppers: entire police union blackballs you.
      Cave and side with the pigs: one family with no political clout hates you.
      Simple math.

    3. Well, I do have to admit. I can’t think of any better idea that would actually have solved the situation. Evacuating the house and starting a siege would have simply delayed things and possibly given a desperate man ample opportunity to do harm to himself or others. Going hand to hand with a man covered in gas threatening to light himself on fire would have almost certainly ended with both the man and officer on fire. Even if there is some course of action that would have certainly left everyone alive without endangering the lives of others, then you cannot blame the police for failing to think of that one esoteric possibility in the heat of the moment.

      This sounds very much like the “just shoot him in the leg” arguments that ignore the practical reality that the rest of us have to live in.

      1. Garden hose, then tase him.

      2. Shooting him would have been a better idea. He would still have died, but with less suffering and without starting a dangerous fire.

        Using a taser when there is a fire hazard is worse than using a firearm. That’s basic safety knowledge and there is nothing esoteric here. They should be prosecuted not just for the dead guy, but also for the hazard they created for everyone else in the room.

        1. Bingo. They made a stupid, reckless choice that endangered the lives of others.

          1. Well, they’re cops, and cops gotta cop.

    4. This article is a textbook example of why Reason has no credibility when it comes to complaining about policing.

      The man was trying to burn himself to death, and the so-called “libertarians” of Reason are trying to convict the police of failing to change that outcome. There’s even a fairly direct complaint about the police being “innocent until proven guilty” in the article.

      What kind of libertarians are these?

  4. “If we tase him, he is going to light on fire!” Elliott yelled.

    Guadarrama and Jefferson tased him anyway

    Was Elliott warning them or encouraging them?

    1. When he said that a light bulb lit up over his head.

  5. Or better yet, Dead Milkmen..

    https://www.youtube.com/watch?v=Zlyvcti3kQU

    When I put that in one post it said awaiting moderation.

    1. Multiple links seem to cause issues for it.

  6. Background checks for gasoline purchases? Low capacity gas cans?

    1. Give it time-fossil fuels are already being banned in some Bay Area cities (no new gas stations, or natural gas appliances in Berkeley), so a gasoline can must then be. A weapon of mass destruction

  7. While qualified immunity in general is bad, I think we should still apply it in cases where cops come up with Mortal Kombat-esque fatalities for people. Lighting someone on fire with a Taser is extremely metal, let them go with a stern warning that if they do it again they need to make sure a suitable album cover is made out of it.

  8. Without recourse? They can sue the city and department can’t they?

  9. Cops are not going to subdue/wrestle with a gasoline soaked dude

    Shooting him might have been a better option, but ultimately the fault here is the guy who soaked himself in gasoline.

    1. “Shooting him might have been a better option”

      Lure the guy onto the street and strangle him. For a better brutality.

    2. Allow the guy to overdose on fentanyl then arres…never mind. That is a bad option.

    3. Come one, lighten up on the jokes for a minute. Jeremy has a very good point.

      We can’t condemn them if there was no right answer. This sort of desperate situation is the reason we have “strictly necessary” as an exemption.

    4. how about a fire extingisher or a water hose or just talk, the worst that could happen is that the guy offs himself

    5. Evacuating the house and waiting would have been a better option. Many suicidal people ultimately decide not to do it. Or maybe his lighter wouldn’t have worked. And if they had evacuated, no one else would have been endangered if he did light himself up.

      But these two brain-dead cops went for the one option that was 100% sure to burn the house down, and did it when both the guy’s family and several cops (not just themselves) were still in the house. The greatest fault here isn’t with the cops, but with the department for hiring and issuing weapons to men that make Barney Fife look like a genius.

  10. “Olivas was experiencing a mental health crisis when his son called the police for help.”

    Well there’s your problem right there. Don’t call the police, full stop. Eliminate that one phone call and they probably save a life and a home.

  11. He wanted to die and was too much of a cowardly pussy to do it himself. Who cares?

    Yes cops are worthless scumbags…. But suicide by cop is a known thing. Dog bites man.

  12. Justice? – You get justice in the next world, in this world you have the law.

  13. Textbook “Fuck you, that’s why” courtesy the United States Govt. Making a mockery of justice and common sense for a hundred years running.

  14. “In what legal universe is it not even plausibly unreasonable to knowingly immolate someone?”

    A.C.A.B.
    All
    Cops
    Are
    Bureaucrats

    “…a million bureaucrats are diligently plotting death and some of them even know it…” ~ Thomas Pynchon

  15. “Suicidal, Gas Drenched Man Burned to Death After Cops Tase Him.”

    Mission accomplished.

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  17. If you voluntarily douse yourself with gasoline, you shouldn’t be able to sue the cops or anyone else if you start on fire when they’re trying to subdue you.

  18. 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.

  19. The court was correct. Uneducated, uninformed, unintelligent, untrained and unreasonable are not identical terms. In theory, the officers should have stopped and thought “electricity plus gasoline equals combustion,” but they are not firemen, tanker-truck drivers, oil riggers, electricians, engineers, scientists, or the like. Nor do they appear to have been properly trained in the use of a taser. If you take an average person without immediately relevant education and experience and put them in the heat of the moment with insufficient training (e.g., “tasers will ignite combustibles”) then this is a reasonable result, or rather, a reasonable person would expect this result. The officers should receive qualified immunity from prosecution. Their department, however, should be held 100% liable for failing to properly train them in the use of the tools they issued to them.

    1. Other cops on scene were trained, and warned these two idiots. Most likely the idiots had also been trained in tasers. They just ignored their training and the other cop’s warning.

      But so what if they hadn’t been trained and warned? I knew enough in _elementary school_ not to make sparks around gasoline. Someone so ignorant of cause and effect should not be wearing a badge or issued any weapon more dangerous than pillows.

  20. “How can we stop this guy from carrying out his threat of lighting himself on fire?”
    “You’re not even thinking, man. He can’t light himself on fire if *we* light him on fire first.”
    They did exactly what they were called upon to do – they prevented him from killing himself.

    1. No, they assisted his suicide. That’s a crime in most states.

      1. And they “assisted” him before he’d clearly decided to go through with the suicide. So maybe it’s murder.

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