5th Circuit Awards Immunity To Cop Who Decided A Suicidal Man Should Be Tased While He Had A Noose Around His Neck

from the if-you-want-to-die,-a-cop-can-help-you! dept

Oh, Fifth Circuit Court of Appeals. Whatever will you do next?

The qualified immunity complaints of Judge Don Willett notwithstanding, the Fifth Circuit is where you go if you want batshit decisions that run contrary to common sense, much less established constitutional law. If you need a decision that sides with the government — no matter how bizarre the government action — you appeal rational decisions and roll the dice on irrationality.

The Fifth Circuit recently handed us a completely inexplicable decision that said social media moderation isn’t a First Amendment issue. And if it is a First Amendment issue, it’s because private companies are somehow capable of violating constitutional rights. Compelled speech is the name of the game in the Fifth Circuit, which recently sided with Texas’ unconstitutional social media law in a decision handed down by a judge who was appointed by Donald Trump and had previously worked as Texas Governor Greg Abbott’s general counsel.

This is also the same Appeals Court that said qualified immunity protected cops who tased a man soaked in gasoline (but was carrying no weapons), igniting him and the house he was in, killing him and destroying the house.

That brings us to this decision, handed down in August, but somehow escaped my attention. Fortunately, Clearly Established, which tracks qualified immunity decisions, highlighted this one in its most recent roundup.

It’s more of the same for the Fifth Circuit Appeals Court, which remains the cop-friendliest place on earth™. It’s another case where a mental health call turned into an execution, because many cops believe the only response to any unfamiliar situation is the application of violence.

And that’s exactly what happened here. Maria Ramirez placed a 911 call, expressing her concern that her son, 30-year-old Daniel Ramirez, was planning to commit suicide by hanging himself from the basketball hoop in her backyard.

Maria did not tell the dispatcher that Daniel had a weapon because why would she? Daniel was not carrying a weapon. The dispatcher did not tell the responding officer (El Paso PD officer Ruben Escajeda) that Daniel had a weapon because why would they? They had received no information stating anything about the presence of a weapon.

Despite the lack of any information pointing to this being anything more than a distress call seeking help to prevent a suicide, Officer Escajeda decided he was the one in need of saving. From the decision [PDF]:

When Escajeda arrived minutes later, at 10:40 p.m., he found the lights off. He became concerned, asking himself “Why [was] the house so dark, inside and . . . outside?” Without announcing his presence, he proceeded to the back yard, gun drawn.

An odd response to a suicide call, but to each his own. It gets odder from there. Officer Escajeda’s testimony becomes internally contradictory shortly thereafter.

He decided not to wait for other officers because he felt “urgency to prevent a suicide.”

Good, good, good… except:

Concerned he could be walking into an “ambush,” Escajeda repeatedly ordered Daniel to show his hands to ensure he had no weapon.

So, which was it? Was it a suicide or an ambush? If it was the former, move quickly. If it’s the latter, maybe call for backup. Officer Escajeda, hoping to secure immunity, argued it was both. And these competing concerns justified his use of force — a force deployment that killed the person he claimed mere sentences earlier he was trying to save.

Daniel’s hands stayed around the rope. So, Escajeda holstered his gun, moved closer, and tased Daniel in the abdomen for five seconds. Daniel’s body tensed and Escajeda saw Daniel’s fists squeeze harder and heard a “crunch” or “gargle.” Escajeda then removed the rope from around Daniel’s neck and lowered him to the ground. He administered CPR on Daniel and felt a faint pulse in his neck. Other officers arrived seconds later and assisted Escajeda with CPR. Paramedics arrived soon after and took Daniel to a nearby emergency room where he was pronounced dead at 11:24 p.m. An autopsy concluded Daniel’s death was caused by hanging.

Well, yes. By hanging. But a hanging that could have possibly been prevented, but was instead made inevitable by the officer’s taser deployment, one that definitely appeared to be unjustified.

The lower court denied immunity to the officer, citing precedent that clearly established “officers may not use a taser against a subdued person who neither committed any crime nor who resisted the officer’s authority.”

The Appeals Court, however, disagrees with this basic, logical premise. Instead, it says precedent provides no case on point and, beyond that, the officer said the magic words about fearing for his safety. And that’s enough to give the Appeals Court the opportunity to both award immunity and avoid further discussion of the underlying incident, much less add it to its precedent.

Contrary to the plaintiffs’ arguments, Escajeda did not have Daniel “subdued” and under his control when he used the taser. To the contrary, Escajeda faced a “tense, uncertain, and rapidly evolving” situation, Plumhoff, 572 U.S. at 774, wholly unlike those faced by the officers in Bush, Newman, and Martinez.

Escajeda used the taser precisely because Daniel was not in custody and Escajeda was unsure whether the strange scenario he faced posed a threat to his safety. Perhaps his fear that he might be walking into an “ambush” was unfounded; in that event, the tasing could be excessive under prong one of the analysis. But even so, no authority cited by the plaintiffs remotely addresses the situation Escajeda faced. It follows, then, that Escajeda could not have been on notice that his single use of the taser was clearly unlawful.

The Supreme Court has periodically warned lower courts to not discuss situations too generally when dealing with immunity claims. Contrarily, it has also warned lower courts to not to allow specificity to get in the way of recognizing obvious rights violations even though there is no precedent exactly on point. Given these two competing options, the Fifth Circuit says it prefers specificity.

Furthermore, the district court did not “frame the constitutional question with specificity and granularity.” The court asked about the proper use of tasers “against a subdued person.” That is too general. It is one thing to ask whether police may tase someone after they have handcuffed him and put him face-down on the ground. It is quite another to ask whether an officer may tase someone who may be hanging himself, who may or may not have a weapon, who does not respond to the officer’s commands—all when the officer approaches him rapidly, alone, and in the dark.

It may be “quite another” question when “specificity and granularity” are compared to analogous cases not exactly on point. But this decision does more harm than good by allowing cops to place themselves in danger, act quickly, and walk away from the poor decisions they made after placing themselves under this stress. The officer approached the suicidal man “rapidly, alone, and in the dark.” If he truly believed the situation was dangerous, he would have acted differently, perhaps waiting for backup or seeking assistance from the man’s mother. Instead, the officer presented testimony that said he wanted to prevent a suicide but approached the scene as though he was the only one in danger of being harmed.

Contradictory motives are a sign of post-fuck up rationalization. The officer had options but placed himself in danger (a completely subjective statement) and then increased the perceived danger by “rapidly evolving” the situation. He should not be rewarded for doing his job poorly. But that is what happened here and continues to happen with alarming regularity in cases handled by this particular appeals court.

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Comments on “5th Circuit Awards Immunity To Cop Who Decided A Suicidal Man Should Be Tased While He Had A Noose Around His Neck”

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17 Comments
PaulT (profile) says:

Just a reminder from the POV I generally see – this what “defunding the police” is meant to prevent. Instead of sending in people untrained in situations like this, you send in qualified experts who can deal with a situation with something other than assisting the person trying to kill themselves. That way, the police can deal with other situations while you perhaps avoid a dead body.

“Concerned he could be walking into an “ambush,” Escajeda repeatedly ordered Daniel to show his hands to ensure he had no weapon… Daniel’s hands stayed around the rope. So, Escajeda holstered his gun, moved closer, and tased Daniel in the abdomen for five seconds.”

So, his hands were visible, but non-compliance was enough to attract use of a weapon? Then, he felt safe enough to put away one weapon, but had time to use another?

PaulT (profile) says:

Re: Re:

Indeed. Apparently, he felt safe enough to holster his main weapon, could see nothing but a rope in the hands of the victim, but still decided to deploy a “less lethal” weapon for non-compliance.

“NOTHING here describes ANY of his training.”

On the other hand, this might perfectly describe his training – it’s to view anyone he encounters as a threat and to deploy deadly force if he feels he’s in danger. The training seems to be that the public are the enemy and as long as the officer comes out OK then anything else is justified.

I’m fortunate enough to only have viewed US police activity from afar, but in comparison to police elsewhere (some of whom I have encountered first hand), the common theme seems to be that they’re far quicker to escalate when not forced to.

Anonymous Coward says:

Re: Re: Re:

The problem is that plenty of cop apologists will provide an abundance of anecdotes and doomsday scenarios for why they act the way they do, typically with a “Why didn’t you escalate?” gripe they claim to receive from the public. You need only look at the kind of rants davec goes on to explain why a death sentence by cop is the only possible option when dealing with suicidal people. To him, cops are unsung heroes painted as villains, even in the case of needless escalation.

Anonymous Coward says:

There's a dangerous slippery slope here

In linguistics it is reasonable to conclude that a human mind generally memorizes rules (about what makes a valid sentence) rather than individual sentences, because a person can construct and comprehend a limitless number of valid sentences never exactly spoken before. Example: Jesse said that Morgan claimed that Alex reported that Murphy predicted that you understand that this sentence is valid even though you didn’t memorize it.

The court asked about the proper use of tasers “against a subdued person.” That is too general. It is one thing to ask whether police may tase someone after they have handcuffed him and put him face-down on the ground. It is quite another to ask whether an officer may tase someone who may be hanging himself, who may or may not have a weapon, who does not respond to the officer’s commands. [Emphasis added.]

In requiring extreme similarity to past cases, the 5th Circuit apparently wants cops to memorize sentences (individual cases involving rights violations) rather than rules (patterns such as “the use of a taser against a non-suspect who poses no danger to anyone else is a rights violation”). But it’s impossible for a cop to memorize and to recall so many cases, especially during a “tense, uncertain, and rapidly evolving” situation!

If I didn’t know any better, I’d conclude that the 5th Circuit is trying to eliminate the notion of rights violations by giving cops plausible deniability in the manner of “the precedent is on point but the cop could not be expected to remember THAT case because there are too many cases to memorize”.

Anonymous Coward says:

Re:

It is quite another to ask whether an officer may tase someone who may be hanging himself, who may or may not have a weapon, who does not respond to the officer’s commands.

1) The potential suicide having a gun is very unlikely, as if they had one the very probably would use it rather than hang themselves.

2) If someone is in a mental health crisis, and attempting suicide puts a person on that category, shouting orders at them is a bad idea, while polite requests will likely succeed, if they are politely engaged for a couple of minutes. Responders do however need to remain calm, and not go into excited delirium, screaming orders, and resorting to violence when they do not get instant compliance.

Anonymous Coward says:

What is up with the 5th circuit. Do judges only retire there when there is a republican president to ensure only the right kind of judge will get appointed?
Quick search and lo and behold… of 24 current judges, only 5 were appointed by a dem with none since 2011. There appears to be 1 vacancy so we might end up with 6.

David says:

Re:

What is up with the 5th circuit. Do judges only retire there when there is a republican president to ensure only the right kind of judge will get appointed?

Please don’t equate “Republican president” with “batshit crazy”. Republicans need viable options of working towards general populace support other than manipulating elections. If you equate everything in the party with Trumpism, it will become a self-fulfilling prophesy.

Trump should not be treated as the epitome of “Republican” or he will become it.

Anonymous Coward says:

He was in fear and its his fear thats the problem

I believe the officer truly thought he might be getting ambushed, that the kid in the noose was just the decoy to distract him into death.

To me that just highlights exactly why we have the constant overreactions and incorrect assessments by officers.

Many cops view every citizen as a threat resulting in the officer quickly interpreting all actions as threats to their life.
When every innocent action is a threat and the only tool you have is deadly force you have what we have here. For the record I view a taser as deadly force as it does cause deaths from time to time.

Maybe cops should not carry any weapons for the first 10 years on the job, not even a club, so they can learn to deal with people using words and learn how to identify real threats. They can use their radio to call for experienced cops when needed just like they expect us citizens to do.

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