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

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.