Fifth Circuit Rejects Immunity Request From Lying Cop Who Shot Fleeing Person In The Back

Legal Issues

from the cover-up-queen-dethroned dept

The Fifth Circuit seems to love nothing more than creating more distance between cops and accountability. But, every so often, it finds a law enforcement member that even it is not willing to redeem. That’s how far Louisiana state trooper Kasha Domingue went off the rails in the incident leading to this lawsuit.

The ruling [PDF] also makes it clear Domingue had gone off the rails long before being sued for paralyzing Clifton Dilley by shooting him in the back. Unfortunately, it also shows the Louisiana State Police is willing to overlook routine misconduct, right up until it’s impossible to avoid dealing with it.

This one starts like far too many civil rights lawsuits: with what was supposedly a routine traffic stop. Somehow (there’s a lack of solid narrative here, which we’ll get to soon) it devolved into the driver and front seat passenger fleeing the scene. After they fled, the backseat passenger, Clifton Dilley, decided it might be a good idea to exit the scene as well. As he ran from the car and away from Trooper Domingue, the trooper shot him in the back, paralyzing him.

Immediately after this, Trooper Domingue began lying about what happened.

Inexplicably, after Domingue shot Dilley with a 9mm Glock pistol, she radioed to dispatch and said, “[t]aser deployed.” Other Troopers responded to the scene and left Dilley bleeding on the ground because they did not know he had been shot. Approximately ten minutes after the shooting, Domingue confessed to another Trooper that she shot Dilley with her handgun. But then she made up a new lie and said that she “took up a defensive position on the right side of [her] vehicle, went down on one knee, drew [her] firearm[,] and fired a shot.” Domingue repeated this story several times, including in an internal affairs investigation.

The trooper thought it would be fine to lie because she’d apparently done it so often and, until this point, it hadn’t been a problem. She also thought it would be her words against the paralyzed man not receiving medical attention because she had taken proactive steps to prevent anything from undermining the narrative she was delivering.

Domingue’s vehicle did not have a dash cam. And she did not turn on her body-worn camera.

Her belief there was no impartial witness to her actions was erroneous. Trooper Domingue may have done what she could to prevent the creation of a permanent record of this shooting, but everyone has a camera these days, including nearby inanimate objects.

But a nearby security camera shows some details of the traffic stop and the shooting.

This camera captured the entire stop (albeit without audio). But it did deliver one crucial freeze frame of the gun shot that initiated this case (and paralyzed the rear seat passenger who belatedly chose to flee from the scene).

As the appeals court dryly notes, this bears zero resemblance to the trooper’s sworn testimony, not to mention multiple statements she made to the Louisiana Department of Public Safety (LDPS) during its investigation of the shooting.

[T]he surveillance video screen-shotted above proves beyond cavil that Domingue was not kneeling and was not in a defensive posture when she shot Dilley at point-blank range in the back.

Beyond that, she’s not even “on the right side of her vehicle.” She’s standing between the cars, gunning someone down as they run past (and away) from her.

Back to Trooper Domingue’s long history of misconduct, which finally caught up to her after this shooting (and the ensuing lawsuit). The State Police terminated her, noting she was never not breaking the rules when it came to documenting her interactions with the public.

The Louisiana State Use of Force Board determined that Domingue repeatedly failed to use her body cam and repeatedly violated Louisiana State Police Policy and Procedure regarding cameras. It further found that Domingue repeatedly lied about her actions and shot Dilley “without any reliable justification.” And it found that Domingue committed criminal negligence.

All of that brings us to the trooper’s request the court grant her qualified immunity. It’s pretty easy to get courts to avoid making calls about the egregious rights violations by steering them towards questions about the “reasonableness” of the officer’s actions. In this case, it doesn’t work. “Reasonable” means there aren’t enough facts in dispute that it’s better to turn this over to a jury. But pretty much all of Trooper Domingue’s “facts” are still disputed… and it’s no one’s fault but her own.

Here, there are numerous disputes of material fact that require us to affirm the district court’s denial of qualified immunity. Many of them come from Domingue’s own lies about what happened. She said she used a taser, when in fact she shot Dilley with a 9mm pistol. She said she fired from a defensive posture when she instead shot Dilley from point-blank range in the back. Domingue says she warned Dilley to stop before shooting him, but over the course of the State Police investigation, Dilley gave numerous conflicting statements about what she might have said or not said. And her various statements to state investigators about her subjective intentions and state of mind were also wildly inconsistent over time.

Other fact disputes come from the summary judgment evidence. Dilley was unarmed when Domingue shot him, but she said she saw a black object in his hand; the video does nothing to clear up that dispute. And Domingue says she felt threatened because Dilley charged her; the video undermines that assertion and shows Dilley running away before Domingue shot him in the back.

Even if the trooper had been honest about her actions, it still wouldn’t have helped (although it might have helped the jury find her more credible). What she did was inexcusable under the Constitution. And for that reason as well, there’s no qualified immunity to be had.

[I]t should go without saying that shooting an unarmed and nonthreatening man in the back without a warning would violate clearly established law.

The court ends its opinion by noting judicial precedent discourages courts from playing Monday morning quarterback when handling split-second decisions made by officers in fast-moving situations. But in this case, they don’t have to second-guess anything because Trooper Domingue repeatedly lied about what happened during the stop. These factual “disputes” are not open to discussion. The recording shows what actually happened and that extremely uncomfortable fact (for the trooper, anyway) means this goes back to the lower court and what is sure to be a loss for the ex-trooper and all-around terrible law enforcement officer.

Filed Under: 4th amendment, 5th circuit, civil rights, clifton dilley, kasha domingue, police misconduct, police violence