If we tase him he is going to light on fire

Today Charles Star joins us to write about the case of a man in Texas who was threatening to set himself on fire so the cops tased him thereby instantly setting him on fire. Maybe they had somewhere to be and wanted to get it over with.

In February the U.S. Court of Appeals for the Fifth Circuit ruled that the cops had used reasonable force in setting the man on fire. I wrote about this in here before briefly.

“We have found that, 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 court said in February.

Here’s what the big brain judges said was basically fine:

“If we tase him, he is going to light on fire,” one of the cops said.

It was at about this point—whether before or after being sprayed is not entirely clear from the record—that Olivas doused himself in gasoline. [Officers] Guadarrama and Elliott, at least, and maybe Jefferson as well, noticed that Olivas was holding some object that appeared as though it might be a lighter. Guadarrama, followed in short succession by Jefferson, fired his taser at the gasoline-soaked man, causing him to burst into flames. Corporal Ray and Officer Scott arrived at the scene at about this time. When they entered the house, they found Olivas engulfed in flames. The fire spread from Olivas to the walls of the bedroom, and the house eventually burned to the ground. The officers at the scene were able to evacuate the family members who had remained in the house, but Olivas was badly burned and later died from his injuries.

The family sued for the wrongful death but the killing was clean the court said. You get nothing they said.

They recently upheld that decision again.

For a more informed opinion than “this is fucking horrific dog shit” I asked Hell World Senior Legal Analyst Charles Star — basically our Jeffrey Toobin in all ways — to explain what happened.

For previous discussions with Charles about some egregious abuses of qualified immunity go here or here or for an interview with Matthew Segal a civil rights lawyer in Massachusetts about the same go here.

If we tase him he is going to light on fire

by Charles Star

You may have read about a case out of Texas called Ramirez v. Guadarrama. You might know it better as “the one where judges signed off on cops setting a guy on fire.” I’ve complained about qualified immunity for Hell World before, but Ramirez is a new horizon in the discourse. Here the Fifth Circuit decided that setting a guy on fire wasn’t merely excusable in the typical way police are given broad allowances to cause harm, it was actually, they said, the correct decision.

There are times, it appears, when a man simply has to be set on fire. It doesn’t seem like that should be the case, but then again I’m not a federal appeals court judge so who am I to say?

To back up a bit to 2017, the cops were admittedly in a pickle. The victim, Gabriel Olivas, was suicidal. He had poured gasoline on himself and around the house and he was threatening to set himself on fire. Olivas getting set on fire is the one thing that everyone was trying to prevent. To stop him from setting himself on fire, you’d have to subdue him. It’s possible, but not certain, that the only way to subdue him was to tase him. Here’s the problem, though: if you tase him, you will set him on fire. So, like I said, a pickle.

In a hypothetical case, it’s possible that the officers didn’t know that a man covered in gasoline would ignite if you tased him, in which case I think any court would grant the officers qualified immunity. They had to make a split decision, with lives at stake, and courts give that kind of thing a wide berth. There were two important things to consider here though. First, the officers had recently attended a training session where they were told that if you tase a guy covered in gasoline he’ll catch on fire. Second, and even more important, one of the officers on the scene literally warned his colleagues that if they tased him they would set him on fire.

Two officers then tased Olivas. The gasoline ignited, setting Olivas and then the house on fire. Olivas later died of his injuries at the hospital and the house burned to the ground.

The first judge to review the case, brought by his family and estate in the Northern District of Texas, declined to dismiss it before discovery. Depositions hadn’t been taken and expert witnesses hadn’t reviewed the facts, and so it was too soon, in the judge’s opinion, to evaluate the officers’ actions.

A three-judge panel on the Fifth Circuit Court of Appeals reversed that unanimously. The panel couldn’t conceive of an alternate path for the officers to have taken, and the plaintiffs didn’t seem to offer one, so it was decided that setting Olivas on fire was reasonable under the circumstances. Olivas’ family provided cases where courts found the use of a taser was excessive, but the panel declined to even consider them “given the degree of granularity involved in the qualified immunity analysis.” In other words, unless a court has identified an incredibly specific manner of excessive force, this court won’t reason by analogy. (This type of analysis is coming under increasing scrutiny, including from the Supreme Court, but we’re not there yet.) The one case the panel did consider -- tasing a fleeing minor because the cops argued “she might run into traffic” -- didn’t apply, they said, because the risk was more speculative and the underlying crime less serious. Easy peasy, there’s no precedent.

As for the police officers’ precedent, they produced cases where courts approved the shooting of suicidal suspects who threatened others or the officers. Olivas’ family pointed to cases holding that shooting someone who is threatening only themselves is unreasonable. The Court reconciled these cases by pointing out that Olivas was threatening a specific manner of suicide that put everyone else at risk. In the abstract, as case synthesis goes, I don’t think that this is particularly egregious. It’s here, though, that I part ways with the Court.

After going through the cases, and reviewing everyone’s conduct, the Court, at an early stage of litigation, demanded that the plaintiff provide an alternate course of action for the officers. In the absence of an alternative, the police were excused from causing the one thing they didn’t want to happen. So even though the police set Olivas on fire and burned down the house in order to keep Olivas from setting himself on fire and burning down the house, the Court’s response was “well, SOMEONE was going to set him on fire and burn down the house, so...”

Judge Don Willett, also of the Fifth Circuit, wasn’t pleased. Like the District Court judge, he felt that before any discovery was taken it was too soon to make any judgment about the officers’ behavior. He asked the full court to review the case en banc -- basically, to give the plaintiff one more chance to convince the full appeals court that the three-judge panel was wrong before appealing to the Supreme Court. Of the 17 judges on the Fifth Circuit, 13 judges said no. And one of the judges only wanted to hear the case to make it extra clear that the original appeals panel got it right. Also, they took turns calling Judge Willett a histrionic woke-lord and spent much of their opinions saying that he was, essentially, a pussy and a liar.

Being called a woke-lord was probably something of a surprise for Judge Willett because before joining the federal bench he was a modest Twitter sensation for being a libertarian justice on the Texas Supreme Court who liked to post memes and make dad jokes but also was, I repeat, a libertarian. Judge Willett thought of it as a fairly straightforward case about civil procedure -- the rules about how cases wind through the system -- whereas his colleagues thought it was a case about Cops Making Split Second Decisions.

To Willett it was simple: before any discovery is taken, it’s premature to dismiss the plaintiffs’ case. They should be given the opportunity to take depositions, obtain police records, hire experts to analyze the information that they collect, and present a complete argument about what they already suspect is true on its face: it was unreasonable to destroy the village to save it.

To the other judges, though, all that mattered is that the police were put in a difficult situation and resolved it, in a fashion. End of story. In fact, they are so certain, they take pages to spell out the part that Willett concedes: Olivas was suicidal, had a lighter, was threatening to use it. Willett even concedes that after discovery the Court might agree that there was no alternative. His main complaint is about timing, not result. I apologize for this, but to get to the next part I need to give a quick summary of what lawyers call “pleading standards.”

As a reaction to the olde days, where pleading was a trap for people who didn’t know all of the arcane rules of court, modern notice pleading generally requires only a “short and plain statement of the claim.” The simplest way to put it is that to sue someone your Complaint has to include why the court can hear the case (jurisdiction), why you are suing (claim) and what you want the Court to do (remedy). There are exceptions. Fraud, especially securities fraud, for example, requires more specificity. In addition, over the last 15 years or so, the Supreme Court has been tweaking the liberal pleading standards in federal court to require more information up front. First, in Bell Atlantic v Twombly, SCOTUS said that the pleading had to include enough facts for it to be plausible that the claim was correct and provable through discovery, rather than that the allegations make the claim conceivable. Second, in Ashcroft v Iqbal, SCOTUS expanded the rule beyond antitrust and used it to knock back a claim that Attorney General John Ashcroft and director of the FBI (Robert Mueller, Forrest-Gumping through history) had established the policies that led to his improper post-9/11 detention and abuse. The dissent pointed out, to no avail, that Iqbal made factual allegations but needed discovery to prove them, so these pleading standards were unfair, but that’s where the law stands now: kind of confusing about exactly when you have to provide notice and when you have to give more.

Back to Olivas. The argument of the complaint was essentially “you can’t set a guy on fire and burn his house down to stop him from setting himself on fire and burning down his house, QED.” The panel argued that this wasn’t enough. Even before discovery, if you don’t have an alternate path for the officers, you can’t take discovery to find that alternative. For this proposition the panel cited… nothing. It’s just how they resolved the case. It was, in their eyes, reasonable under the exigent circumstances and that was enough.

At a certain level, this is in line with the fundamental premise of qualified immunity (or, in the First Amendment context, anti-SLAPP laws): discovery is very expensive, and if you allow it, it encourages settlement, and if the defendant is likely to settle, you’ll get more of those cases filed. What it isn’t in line with is any of the pleading standard cases, unless you cram it in. “An alternate way of disarming a suicidal man” is not a fact you should be expected to plead at the outset.

This is basically where the first two stages went: a district court judge said the plaintiff can have more time; the appeals panel said “not without a plausible alternative for the cops.” That division repeated itself at the Fifth Circuit. Judge Willett agreed with the district court judge and asked his colleagues, collectively, to rehear the case. First, because the case was being dismissed before discovery, and second, because it was obvious to him that intentionally setting a guy on fire before he could set himself on fire was obviously at least plausibly improper, and the Supreme Court had issued two opinions in the last year telling the Fifth Circuit to stop dismissing cases with obvious improper conduct by the police. To Willett this meant “in cases with particularly egregious facts, courts must not strain to absolve constitutional violations.” Only two of his colleagues agreed to rehear the case. (Well, technically three, but Judge Smith only agreed to rehear because he wanted to use this case to overturn Cole v Carson, a different case that didn’t give the officers immunity.)

The other 13 judges not only did not agree to rehear the case, Judge Jolly said Willett’s opinion “emotes; it does not reason” and called it “purple prose.” Judge Ho snarkily cited Willett’s own dissent from Cole v Carson by way of explaining that Willett is all over the place. Judge Oldham decided on his own that, well, actually the plaintiffs did suggest tackling Olivas, and also suggested that the officers should have stalled until the crisis negotiation team arrived … but then dismissed both as obviously worse options that don’t count, and chided Willett for not citing the proposed reasons at all. This last one sticks in my craw.

One opinion after another makes clear that it was the plaintiffs’ obligation to provide an alternative for the police. It’s the fundamental point that all of the judge’s make: you can’t say the police acted improperly if you can’t even propose an alternative. But the judges also admit that the plaintiffs did propose alternatives and then shrugged any potential ones off as obviously bad. In other words, they are a mirror image of the error that they think Willett is making.

Willett instinctively believes that setting Olivas on fire was outrageous; the other judges consider the alternatives self-evidently fruitless. Only one side, though, thinks that instincts are enough to decide the case. It’s the same side that instinctively and intentionally set a man on fire. That’s no way to run a legal system.

Charles Star is a Brooklyn-based lawyer and the host of Hostile Witness, a podcast about law at the end of the world. He will guest on your podcast and tweet about it at @Ugarles