Appeals Court Says No Immunity For Cops Who Shot A Man Standing Motionless With His Hands In The Air

from the try-being-actually-reasonable-for-once,-officers dept

Federal judges continue to trip over themselves in their hurry to extend qualified immunity to law enforcement officers. No matter how egregious the violation — and how simply wrong it appears to reasonable human beings — cops can usually escape judgment by violating rights in new ways, ensuring there’s no precedent that would make them aware they shouldn’t do things like destroy someone’s house after they’ve been given permission (and a key!) to enter.

This decision [PDF] from the Fifth Circuit (and the Fifth Circuit can be the worst about protecting the government from citizens it has aggrieved, stinging dissents from Judge Willett notwithstanding) involves officers who shot a man holding a knife. Given that judges seem to believe any weapon real or perceived that “threatens” an officer makes ensuing homicides wholly justifiable, this refusal by the court to bless the actions of reasonably-scared cops is more surprising than it should be.

The description of the events leading up to the shooting would seem to be laying groundwork for a QI-based dismissal:

In 2015, after a domestic dispute between Flores and his wife at Flores’s mother’s home, Flores’s mother called 9-1-1 for assistance. According to the 9-1-1 call transcript, Flores’s mother told the dispatcher that Flores beat up his wife and had “gone crazy”. Deputies Vasquez and Sanchez were dispatched to the residence in separate vehicles. While in route, dispatch advised Vasquez and Sanchez that Flores was upset, and that Flores wanted to commit “suicide by cop.” Vasquez was also informed that Flores had a knife.

The next paragraph, however, points to subverted expectations:

Twelve minutes elapsed between Vasquez’s arrival and the officers’ fatal shots at Flores. During those twelve minutes, the deputies had a number of encounters with Flores, and ultimately deescalated the situation. It was only after Flores was standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds that the officers looked at each other and then decided to shoot Flores. The officers each fired a shot, and Flores fell to the ground.

The Fifth Circuit says too many factual disputes remain unresolved. And one of the disputed facts is the officers’ own testimony, which says something a cellphone camera recording of the incident does not: that officers were in danger of being attacked when they decided to shoot Flores as he stood motionless thirty feet away with his hands in the air.

Most significantly, the officers assert that “Deputies Vasquez and Sanchez were in imminent fear of death or serious bodily injury by the actions of Gilbert Flores at the time of the fatal shots.”

But the officers can’t explain how they were in “imminent fear” when nothing about Flores’ actions at the point he was shot indicated he was an imminent threat.

Flores had a knife, not a gun; was several feet away from the officers, the house, and the vehicle; had his hands in the air in a surrender position; and stood stationary in the officers’ line of sight. Under these facts taken in the light most favorable to Plaintiffs, we conclude that the district court correctly identified material factual disputes as to whether the officers violated Flores’s Fourth Amendment rights.

There is no automatic grant of qualified immunity because these officers should have known killing someone in a situation like this would be unlawful.

A reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment.

With this rejection, there’s probably a settlement on the horizon for the survivors of the shooting victim. The district court refused to dismiss the suit and the Fifth Circuit Appeals Court says the lower court’s reasoning is sound and the right of citizens to not be killed by cops when they don’t pose a threat is clearly established. Chalk up a win for the citizens, who, far too often, come out on the losing end when qualified immunity is in play.

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Comments on “Appeals Court Says No Immunity For Cops Who Shot A Man Standing Motionless With His Hands In The Air”

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52 Comments
This comment has been deemed funny by the community.
Agammamon says:

Look, they were there dealing with this perp for TWELVE WHOLE MINUTES!

You can’t expect these guys to spend their whole shift dealing with this stuff – there are asset forfeitures to be done, marijuana possession arrests they have to make. Quotas ain’t gonna fill themselves.

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Andrea Iravani says:

Holding government employees at all levels accountable for their crimes must be done if this is ever to become a functioning country again.

Today, the U.S. offered $15 million for the arrest of former Venezuellan President Maduro, on the ludicrous allegation that Maduro was responsible for narco-trafficking drugs into America from Columbia through FARC.

We live in a total state of surveillance, proving both how pointless having a surveillance state is since the drugs even make it into the country at all, and how full of shit the government is for blaming Maduro for narco-trafficking, which is the CIAs and military’s, not to mention JP Morgan’s are of expertise. The facts prove it! Former CIA officials have attested to it! Does anyone seriously think that it is a coincidence that the heroin epidemic coincided with the war in Afghanistan? JPM leased a Dutch ship previously busted twice for narco-trafficking, and was found to contain an enormous heroin shipment by the DEA. Are we to beleive that bankers do not know how to conduct due diligence, when a ship previously busted twice for importing narcotics might be an indication that it is involved in narco-trafficking?!

Where does this leave Jamie Dimon? Where does this leave the millions of other small time users busted and imprisoned? Where they busted for being small time? Apparently their only crime was that the quantity was too small by the looks of things!

David says:

Look, it was a standoff

At the end of the shift, our brave officers want to return home safely. Not standing for hours 30ft away from some guy holding up his hands with a knife in them, catching a cold. That’s probably a situation the officers have not been trained for.

So they converted into a situation they have been trained for and resolved the standoff. It’s really a mathematician’s approach. For once the officers acted like intellectuals, and you are still not satisfied.

Anonymous Coward says:

Re: Look, it was a standoff

So, if I understand your argument correctly: cops are trained how to kill people, and any waiting at all is too difficult for them so make with the killing.

That’s definitely an…. interesting argument to make. However I suspect sane people might disagree with it’s validity.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re: Re: Look, it was a standoff

Poe detector in this case, and that’s kinda the ‘problem’ with poe’s in a crazy world, while the one making them may not be serious the reason they are so easy to fall for is because there’s good odds that the readers have run across one or more people who said similar but were serious.

This comment has been deemed insightful by the community.
Upstream (profile) says:

Re: Re: Re:2 Look, it was a standoff

Yes, Poe’s law is definitely in effect here. I prefer to think that David was being dryly sarcastic / humorous because

  • I try to be positive, even if it may not be warranted
  • I tend to like that sort of humor
  • It is less stressful than the other disturbing / outraging option

However, given the current state of outrageous policing, the courts’ equally outrageous responses to said outrageous policing, and the public’s general indifference to both, it is not much of a stretch to think that his comment might be accurate and insightful, no matter how distressing that thought might be.

Anonymous Coward says:

Re: Look, it was a standoff

Not standing for hours 30ft away from some guy holding up his hands with a knife in them, catching a cold.

Are you their mom or something?

For once the officers acted like intellectuals, and you are still not satisfied.

Neither is the court. Now they’re going to get sued.

Anonymous Coward says:

Re: Re: Re: Look, it was a standoff

Many people believe that the burden of successful transmission of a message lies with the receiver and that a misunderstood message is entirely the receiver’s fault. This is categorically incorrect.

If an audience doesn’t understand your message it is because:

A. You don’t understand your audience
B. You are simply a poor communicator
or C. You are being intentionally obtuse

None of the above are the message receiver’s fault.

David says:

Re: Re: Re:2 Look, it was a standoff

You are working on the assumption that the way to rate a message is to make sure it is understood by the largest possible set of people.

That is a reasonable metric for a news anchor.

However, sometimes a sender may choose to provide additional value to a subset of recipients at the cost of possibly getting misunderstood by others.

That is particularly true for jokes: those very often rely on a double take or at least an unexpected twist, and sarcasm is a typical kind of joke.

A "double take" relies on the capacity for evaluating anything beyond the first superficial impression in contradiction to the actual message.

Not every conceivable recipient has what it takes to double take. You’ll find announcements of important news usually comparatively free from sarcasm.

While I feel honored that you apply the metric of "important news" to my Techdirt comments, I feel compelled to point out that this might sometimes not be entirely warranted.

There have been occasions where comments of mine, as unbelievable as that may sound, have not been entirely devoid of traces of sarcasm.

Anonymous Coward says:

Re: Re: Re: Look, it was a standoff

Thanks so much for that Mr. Helper!

As my comment was third in the thread, as you can plainly see by the time stamp (protip – there’s a time stamp next to each commenter’s name), I only had two others to refer to. But thanks for the info anyways!

Let me point you to the author’s name next to the title – if you click on that, it will bring up other articles by the same author (how the fuck about that???).

If you peruse some of those articles, you’ll find serious dicktards who firmly believe what the OP was implying. This I know because I’ve visited this site for years.

Hope this helps explain the "whoosh"

Scary Devil Monastery (profile) says:

Re: Look, it was a standoff

The very very sad fact to take away from this is that what you stated in sarcastic jest would be a plausible argument for a number of people, with genuine authority such as Barr and Acevedo among them.

Hell, I can see the current president of the USA tweeting what you just wrote, only adding a few typos and a covfefe to give it his personal touch.

Anonymous Coward says:

the thing that concerns me over this sort of cop action is why do they always have to (try) to kill the other guy? are they all such piss-poor shots that shooting the suspect in the leg is impossible? not only can I imagine that hurting a whole hell of a lot, it’s gonna incapacitate all but the strongest-minded, strongest bodied of people. it’s certainly gonna slow someone down to the point of being unable to do very much at all, while keeping that person alive! or is this some new ‘game’ that law enforcement are now playing where they get x-number of points simply for ending someones life, regardless or the circumstances and reasons? it sure as hell cant be for any other reason except maybe to gain prowess with compatriots. if that’s the case, it needs stomping on asap from a great height because everyone deserves to keep their life until proven guilty in court of committing some heinous crime!!

Anonymous Coward says:

Re: Re: Re:

Have you ever tried to aim a shot at a living being’s leg?

Arguing that the police are piss-poor at shooting does nothing to their argument. It just reinforces what we all knew already – they’re either marginal at their jobs, or piss-poor at them.

If you can’t hit a stationary target in the leg at 30 feet after being "trained" to use a service weapon, then frankly you’re a shit shot.

Upstream (profile) says:

Re: Re:

From what I understand about the possible civil legal repercussions of defensive (which is what the cops tried, unsuccessfully, to claim) use of deadly force in general, one (cop or not) is usually in a better legal position if one is sued by a deceased person’s relatives, rather than by a (possibly very sympathetic) living victim with (possibly huge) current medical bills and / or (possibly huge) future and continuing medical bills and / or permanent disabilities. You might file this one under bad incentives create bad outcomes.

nasch (profile) says:

Re: Re: Re:

one (cop or not) is usually in a better legal position if one is sued by a deceased person’s relatives, rather than by a (possibly very sympathetic) living victim

In this case, there was no reason for there to be a victim at all, and that is not why cops aim for center mass and not limbs. If you are ever in the position of having to fire on someone to defend yourself, aim at the torso:

https://www.ajc.com/news/national/here-why-police-don-shoot-wound-the-case-deadly-force/IV4ohtIm6r8FaEMj78u1bO/

https://abcnews.go.com/US/police-trained-shoot-wound-experts/story?id=40402933

https://blogs.findlaw.com/blotter/2014/08/why-dont-police-shoot-to-wound.html

Upstream (profile) says:

Re: Re: Re: Re:

In this case, there was no reason for there to be a victim at all, and that is not why cops aim for center mass and not limbs. If you are ever in the position of having to fire on someone to defend yourself, aim at the torso:

You are absolutely correct on both points. From a criminal liability standpoint torso is always preferred because of better chance of hitting and better chance of immediately stopping the threat. I was just trying to point out that there are some other, unfortunate, considerations, too. In any case, the idea that "ya coulda just winged ‘im" is not a valid concept. I should have made that more clear.

Upstream (profile) says:

Re: Re: Re:3 Re:

It helps to legitimize the generally necessary legal defense that "I reasonably feared for my life (or serious bodily injury or the life of someone else)." The theory is that if you have reasonable fear of (one of the above) you will do that which has the best chance of immediately stopping the threat.

Attempting to injure an arm or leg does not meet that condition due to much greater chance of missing completely, and even if you do hit, there is much less chance of immediately stopping the threat. At least, that is what a prosecutor would say. It makes sense to me, too, but my opinion doesn’t really matter. How a prosecutor might frame it in court to a jury is what matters.

And, as R.H. said, this is what is taught in the classes that some states require for a pistol permit (or concealed carry license, or whatever they happen to call it in the state in question). In my state in the permit class it was presented essentially as I stated above.

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This comment has been deemed insightful by the community.
nasch (profile) says:

Re: Re: Re: Re:

Because it’s disgusting to think that rape is a suitable punishment for a crime. If that were actually part of the official sentence, it would be struck down as unconstitutionally cruel and unusual in a heartbeat, yet for some reason people like you think it’s an appropriate additional punishment. I would ask what other forms of torture and punishment you would delight at inflicting on prisoners, but I don’t really want to know.

If you dont want to get raped without lube then dont commit crimes.

If I were like you, I would hope that you get unjustly convicted of a crime you didn’t commit so you could find about it. But I’m not. I hope that doesn’t happen to you (or anyone), but unfortunately it does happen quite a bit. Are you OK with those people getting raped too?

Emelie says:

Re: Re: Re:2 Re:

Please read it all before you judge. These do make sense you just have to be willing to see it in a different viewpoint. Keep an open mind.
Lets see some examples:
1) Instead of letting death row prisoners continue to live for years they would be executed immediately.
2) Women who lie about rape will get sentenced to actually be raped and recorded as a deterrent so liars will think twice before telling such a lie. Since the men’s live will be destroyed by such a lie and they don’t recover so the punishment must fit the damage the liars have caused. Of course the recordings will be publicly available for the public’s enjoyment (the deterrent part).
3) The police will not get away with murder, if found guilty they will be executed. Of course psych test and such should prevent gun nuts and bully type mentality, etc.
4) Crimes like pedophilia, such people will be tortured and kept alive as long as possible and the public will be able to watch it. (I admit Im biased with this one).
5) Rapists will be constantly raped during their sentence. And the victims will have access to the recording of each session. Maybe the victims may have a say in how each session should be done.

Yes of course the justice system sucks. It have failed me and some of my friends so Im very aware of that. Some people are very unlucky by encountering cops that adjust the evidence so the unlucky person can get charged or the case is simply dismissed due to some excuse. This should also be fixed with proper training of the cops.
No system is perfect unfortunately. We will just have to accept the error rate and aim for it to be kept as low as possible. It is same with medical operations, etc. When an error is detected it should be investigated and hopefully fixed so it doesnt happen again.

If I were like you, I would hope that you get unjustly convicted of a crime you didn’t commit so you could find about it. But I’m not. I hope that doesn’t happen to you (or anyone), but unfortunately it does happen quite a bit. Are you OK with those people getting raped too?

Of course the rape is bad if that wasnt included in the sentence. Fortunately we have sex toys and medications that may solve that need. The medication can be in the food if the sex toys doesnt solve the issue. Maybe a combination will work the best.
And all rapes that are reported and proven to be true will have severe punishment. Snip-snip. They cant rape without a penis. Im very sure that will be a very good deterrent. After all men have a special relationship to that thing.

That One Guy (profile) says:

Re: Re: Re:3 'It is better to be thought a terrible person...'

Oh I’m fully aware that there are disgusting individuals such as yourself out there, it just always surprises me how eager some of them are to showcase just how disgusting they are at the first opportunity, but I suppose better for people to know upfront than think someone’s a decent person only to be disappointed later on I guess.

Scary Devil Monastery (profile) says:

Re: Re: Re:3 'It is better to be thought a terrible person...'

"You havent figured out humans yet?! Oh dear."

The point of civilization is about trying NOT to be animals and monsters.

You do realize that there is little difference between the one who tortures and the one who relishes the idea of torture? Both are on a power trip where helpless people are the victim of their twisted ideas.

It’s not acceptable to include as possible sentencing something irreversible. Hence mutilations, rape, and trauma likely to scar for life is not valid as punishment.

Except in the mind of someone who dreams of inflicted harm on others and thinks making the victims criminals gives them an excuse.

That One Guy (profile) says:

Re: Re: Re: Re:

Given the wording ‘could only be relieved by medical by smoking medical marijuana’ would seem to imply great pain and suffering in general no, though I would probably make an partial exception if Sessions has dismissed in the past the suffering of those in that position, as at that point it’s simply applying the ‘turnabout is fair play’ rule/test.

Even then however you’d still be wishing excruciating pain on someone, and I would hope that the reason that’s hardly a good thing should be blatantly obvious.

tz1 (profile) says:

But he had a knife!

See, among others:
https://www.nytimes.com/2015/08/02/us/training-officers-to-shoot-first-and-he-will-answer-questions-later.html

Police get paranoia training so they think they are in a Stephen King movie where everyone is going to try to kill them and will if they ever hesitate for a mircosecond.

25 feet is the usual cited distance in which a knife wielding urban ninja can kill a cop before he has his gun out.

Joke: A cop walks into a steak house and shoots everyone. He explained, they all had knives and were within 25 feet.

tz1 (profile) says:

But he had a knife!

See, among others:
https://www.nytimes.com/2015/08/02/us/training-officers-to-shoot-first-and-he-will-answer-questions-later.html
Police get paranoia training so they think they are in a Stephen King movie where everyone is going to try to kill them and will if they ever hesitate for a mircosecond.
25 feet is the usual cited distance in which a knife wielding urban ninja can kill a cop before he has his gun out.
Joke: A cop walks into a steak house and shoots everyone. He explained, they all had knives and were within 25 feet.

Bergman (profile) says:

Giving permission to come in

I find myself curious — if you stand at the door of a police station and ask permission to come in, if a cop grants you that permission would that mean that you would therefore have no reasonable belief that smashing out the glass in the door to enter with the door closed might be unjustified?

According to the police, there’s no way for any reasonable person to know that doing that might be illegal.

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