Fifth Circuit: Never Mind Your Lying Eyes, These Cops Who Killed A Woman Deserve Immunity
from the officer-safety-on-lockdown-but-start-blasting-I-guess dept
The best place to be the sort of cop who thinks it’s a good idea to associate yourself with the Punisher remains the Fifth Circuit. Cops in Texas, Mississippi, and Louisiana are blessed with the most forgiving appellate court in the land — one even capable of irritating the same Supreme Court that has spent decades ensuring almost no cop goes unforgiven, no matter the level of misdeed.
And so it is here. This recent decision [PDF] by the Fifth Circuit says a car moving at speeds of up to [checks opinion] three miles per hour while boxed in by a squad car and surrounded by several police officers was such a threat to officer safety the officers had no choice but to kill Genevieve Dawes.
The set-up is this: Dawes and her husband (Virgilio Rosales) were parked in black Dodge Journey van at the back-end of an apartment parking lot. They both fell asleep in the car. A resident called the cops to report a “suspicious” vehicle, that being the Dodge Journey the couple were in.
Two officers (Christopher Alisch and Zachary Hopkins) arrived on the scene around 5 a.m. The van was parked in the last space, blocked in on the left and front by a fence. Another car was parked to its right. They pulled their guns and approached the car. (The apparent reason for the gun-pulling was the car had been reported as stolen, something that apparently wasn’t known by the couple in the car, who had purchased it from a third party.)
The windows were fogged, which made it difficult for the two officers to determine whether or not it was occupied. Officer Hopkins tried to open the rear door of the van but it was locked. Another officer arrived and (according to the Fifth Circuit’s recounting) “announced that the Journey was in fact occupied.”
A lot of shouting happened, with the officers ordering the occupants to show their hands eight times. Then two of the officers decided to move a bit further back. At that point, the engine of the van turned on. A fourth officer (Officer Hess) jumped into his cruiser and moved it forward to block the van. The van went into reverse and bumped into the cruiser. Then it moved forward and hit the fence. The van went back in reverse again as officers yelled again for the driver to show their hands.
Here’s how the rest of this interaction went:
After hitting the fence, the Journey immediately reversed. As it did so, Hess fired twelve rounds, all within a five second interval. Kimpel fired one round, simultaneous with Hess’s sixth shot.
Kimpel later stated that he fired his weapon “in fear of Officer Hopkins’ life.” Hess said he fired to protect both Hopkins and Kimpel, who he believed were in the path of the reversing Journey.
But that’s not what the recordings show:
Hopkins’s bodycam reveals that, although he was not in Hess’s or Kimpel’s immediate field of view, he had moved out of the Journey’s path several seconds before Hess first fired.
Here’s one recording of the shooting, as captured by Officer Hess’s body cam.
There are lots of things that can be seen here, including the fact that no officer was directly behind the van when it reversed. While it did hit the cruiser the first time, the second reversal hit nothing at all because there was nothing to hit.
The lower court — affirmed by the Appeals Court –said officers had no way of knowing this use of force would be excessive under these circumstances and granted immunity. The Fifth Circuit upholds this under the same reasoning:
Here, the facts exhaustively documented by multiple cameras cannot be disputed. Shots were fired in the dead of night as a vehicle traveled towards a location an officer had stood in seconds before. Baker therefore cannot “squarely govern[]” today’s facts.
There’s a dissent. And it’s a good one. The dissent, written by Judge James Dennis, asks the rest of the court what recordings they were watching, because the ones he watched didn’t show anything that justified this level of force. In fact, the force deployment was so egregious that the two officers who opened fire actually managed to get punished by their employer.
The majority’s approval of the district court’s misguided judgment extending qualified immunity to Hess and Kimpel is not only incorrect as a matter of law, but also serves to condone the inexcusable incompetence displayed by these two officers—both of whom were suspended or terminated from their positions as police officers for having violated their department’s use-of-force policy.
The dissent goes on to note that it’s improper to grant immunity at this point in the lawsuit. There’s still plenty of facts and interpretations that are open to interpretation. But, more importantly, there are a whole lot of facts captured on video by the officers’ own cameras that make it immediately clear no officer was in danger when these two officers decided to open fire.
Here, we have the benefit of video footage capturing the incident, which makes clear that the “videotape quite clearly contradicts” the officers’ dangerous belief that deadly force—indeed thirteen shots fired—was necessary to stop a boxed-in vehicle from reversing at a crawling speed of under three miles per hour when the officers could have, and in fact did, use a squad car to block Dawes’s vehicle—making it impossible for her to flee.
“Substantial and immediate risk” of injury or death did not exist here. That much can plainly be seen on the recordings.
It is undisputed that no one was in the path of Dawes’s slow-moving vehicle at the time the officers killed Dawes and injured Rosales; indeed, both officers testified that when they used deadly force they did not observe anyone in danger and did not tell anyone to get out of the way. In his deposition testimony, Hess agreed that Dawes’s vehicle was moving at less than three miles per hour when he fired his first round of shots, and that any officer in the path of Dawes’s vehicle could have moved out of the way by the time he fired his second round of shots.
Things that are disputed should go in front of a jury. Things that are undisputed — and directly contradict the assertions made by the two officers — weigh against their invocation of immunity. And long-settled case law says use of force that clearly exceeds the actual threat to safety is unconstitutional. The lower court screwed up. And the majority ratified that mistake.
The dissent has it right. But it doesn’t matter. The majority rules. And, unless the Supreme Court wants to take a swing at this (and I doubt it will if given the chance), that’s how this will remain: cops who were fired or suspended for killing Genevieve Dawes cannot be held civilly responsible for her death.
Filed Under: 5th circuit, christopher alisch, genevieve dawes, qualified immunity, zachary hopkins
Comments on “Fifth Circuit: Never Mind Your Lying Eyes, These Cops Who Killed A Woman Deserve Immunity”
Louisiana, Texas, Mississippi. 3 states that tried to break off to preserve slavery. 3 Jim Crow states.
The Fifth Circuit judiciary is waging information warfare against the American public as well as the American legal system.
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The really sad thing is that, when it comes to reigning in violent, abusive, or corrupt cops, the Fifth Circuit is only a little worse than average.
Americans are raised on a diet of heroic police fiction in film, TV, and, quite frankly, the news media. That kind of thing is hard to overcome with just plain old “facts”.
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It’s almost like the foundation of our legal system counted black folks as both property and 3/5 of a person. And we’ve been pretending to address it, but we can’t actually address it because that would go against said document.
It’s become a tautology. We can’t fix the rules because we can’t fix the rules.
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Black people are genetically-predisposed to both crime and having low-IQs.
Re: Re: Re:2
We get it. You’re afraid of black people.
This comment has been flagged by the community. Click here to show it.
Re: Re: Re:3
Of course I’m afraid of young Black males.
They’re scientifically-proven to be more likely to be homicidal maniac thugs than young White males.
It’s why I live in an upper middle class suburb with somewhat annoyingly-high property taxes: to ensure most Black families are priced-out!! An anti-Negro Tax, if you will!!
Re: Re: Re:4
It’s scientifically proven that conservatives are driven by fear.
Piss baby.
Re: Re: Re:5
That’s not really a good argument, since your assertion is provably true, and therefore doesn’t work as sarcasm.
Re: Re: Re:4
FTFY. YW.
Re: Re: Re:3
Oh… thanks for the clarification.
I thought he was claiming to be black, himself.
Re: Re: Re:2
So how is it that a single person, predisposed to have a low IQ score, can still run circles around three trained cops with an allegedly hidden gun for fifteen minutes?
Re: Re: Re:3 AND
They cant find the gun after?
Re: Re: Re:3
Hey, if you don’t like that black people are predisposed to have low IQ scores, fix the education system so it no longer discriminates against black people. Simples!
Re: Re: Re:2 never have you
Raised an Pet or a Child and Learned ANY BASIC Psychology.
You are a live alone Virgin with out a pet.
(maybe a gupy)
IF certain things happen, then there are ONLY certain things that respond.
HUMANS are reactionary to the Inth degree. And if you beat a dog Enough, there are ONLY certain things a DOG WILL DO.
Plz go take some Basic High school classes on Psych, and LEARN about 60% of the people in the USA. And HOW they program you, Force you to REACT the way they WANT you to react.
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Unsafe At Any Speed
We’ve complained about passive writing before at Techdirt, usually about police descriptions of events when they attempt to describe events that didn’t end well. But now Techdirt is doing it too.
No, the engine of the van didn’t turn on. The driver turned on the vehicle. No, the van didn’t go into reverse. The driver shifted the vehicle in reverse.
Passive writing is done to offer excuses. Don’t try to flee the scene. Don’t crash your car into other vehicles or a fence, at any speed. As usual, a perp gets shot because they can’t chill for just 5 minutes. Let’s put some responsibility on the driver: don’t flee from police, or try to ram their cruiser. In a stolen vehicle.
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The cops killed those people. The cops didn’t kill those people to protect someone from an immediate threat to their safety. How’s that for some active voice, bootlicker?
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You have that backwards, bootlicker: a suspect usually gets shot because the officers can’t chill for just 5 minutes.
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Sometimes, it’s not even a suspect that gets shot—it’s a victim.
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You actually have a legitimate criticism about the passive voice used, I agree with that. But the victim didn’t get shot simply for not being chill, they didn’t “flee” by any logical definition and the fact that the vehicle was (unknowingly) stolen is irrelevant to the driver’s behavior. The cops displayed an egregious contempt for human life and even their superiors knew their behavior was unjustifiable.
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This author is a coward who suppresses comments critical of his anti-police hate speech.
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You’re a coward making up dumb shit on the internet.
This comment has been flagged by the community. Click here to show it.
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What am I “making up”??? I’ve already had 13 attempted-comments to this post suppressed!!
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Probably the bitch filter.
Re: Re: Re:2
Actually, that’s insulting to females in general and female dogs in particular.
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Your type is not wanted here.
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Spambot filters aren’t censorship.
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Their blog, their rules. Don’t like it? Go to the grocery store and buy some cheese to go with all that whine.
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I have a first amendment right to post my grievances on the grocery store window.
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You probably need an /s just in case.
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And they have a First Amendment right to yoink those grievances down if they don’t want that speech on their window. Deal with it.
Re: Re: Re:2
No, that would violate my first amendment.
Re: Re: Re:3
The right of free speech has never given anyone the right of free reach.
Re: Re: Re:3
How so? Is the grocery store run by the government?
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…hallucinated nobody mentally competent, ever.
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And yet your comment is here, plain as day.
Any other lies you’d like to distribute?
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This author is a coward who suppresses comments critical of his anti-police hate speech
It’s the community of other readers hiding your useless comments that belong on 4chan, 8kun, or wherever else you douchetards congregate now.
IOW, you’re an asshole, and the community is responding like any reasonable community would…by essentially telling you to fuck off.
I hope this clears it up for you, asshole.
Fifth Circuit thought process: If COP = Innocent of all charges
The majority’s approval of the district court’s misguided judgment extending qualified immunity to Hess and Kimpel is not only incorrect as a matter of law, but also serves to condone the inexcusable incompetence displayed by these two officers—both of whom were suspended or terminated from their positions as police officers for having violated their department’s use-of-force policy.
Their behavior was so monstrous and indefensible that even their police department wasn’t willing to condone or give them a pass for it yet damned if the Fifth Circuit was going to let a pair of murderers with badges escape without patting them on the back and making clear yet again that if you live within their jurisdiction cops can gun you down with immunity.
4 years??
To get to court.
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Why rush? The victim won’t be any less dead if they got there quickly.
/s