Court Shoots Down Cop’s Attempt To Instruct Jury That He’s Innocent Just Because He Wasn’t The FIRST Violator Of Rights

Are you familiar with felony murder?" Let's talk about it. It's a handy way to send more people to prison for more years just because they participated in a crime that contained a murder. While I can (sort of) understand the deterrent effect of laws like these, the simple fact is felony murder laws hold all crime participants liable for a murder if anyone involved in the initial criminal act kills somebody during the commission of the crime.

It's bystander liability," but for criminals. Any crime is everyone's crime, even if your only real participation in the crime was sitting in the car or acting as a lookout or assisting in the criminal conspiracy. Don't do the crime if you can't do the time," as the adage goes. But this law expects people to do the time for crimes they didn't actually commit.

Then there's bystander liability. If someone witnesses a criminal act, it might be proved that they had an obligation to prevent it from happening or, at the very least, to not participate in the actual criminal act.

Somehow, cops feel felony murder and bystander liability are legal concepts that should never apply to their acts. (They do, though.) That's how we arrive at the point a cop being sued for constitutional violations attempted to instruct the jury it would be impossible to find him guilty of anything.

Here's what happened following the court's rejection of Officer Maze's proposed jury instructions, courtesy of the Associated Press:

A federal court jury in Oxford on Thursday ruled that Southaven officers Zachary Durden and Samuel Maze had not violated the civil rights of Ismael Lopez when Durden shot him to death in 2017. The verdict came after a four-day trial in a lawsuit by Claudia Linares, the widow of Lopez, who sought $20 million in compensation.

The verdict was that the jurors did not believe that the use of force used by Officers Durden and Maze was excessive in light of all the facts that they considered," attorney Murray Wellstold WREG-TV.

Those facts are borne out by the docket, which shows the jury found both officers not guilty of rights violations. And maybe that's the correct decision. At least it was considered by a jury, rather than short-circuited by generous applications of qualified immunity.

This is what led to this lawsuit. Officers arrived at the home of Ismael Lopez and Claudia Linares late one night in 2017. The officers were serving a domestic violence warrant but had the wrong address. They knocked on the door without identifying themselves (wtaf?!). The door opened and a dog ran out. Officer Maze shot the dog and then (less than a couple of seconds later, according to Maze's testimony), Officer Durden fired multiple shots at Ismael Lopez, who was still inside the home.

Lopez was struck in the back of the skull and died. This incident was initially given this description by the employer of these two officers, the Southaven (KY) police department:

The report says Durden shot Lopez, and Maze shot the family's dog. Durden has since resigned.

The nine-page report says Lopez died from a gunshot wound to the back of his head. District Attorney John Champion has said Lopez refused commands to put a rifle down.

A third officer at the scene corroborated" this official narrative, claiming Lopez had ignored several shouted instructions to drop" the rifle. No recording of this incident survives. (Most likely, no recording was ever created.) Odds are, this narrative was generated after the fact as cover for the inexplicable killing of Lopez.

Lawyers for Lopez, who died before he could be taken to a hospital, have disputed that he pointed the gun at officers. They noted his fingerprints and DNA were not found on the rifle, which was recovered more than six feet away from his body. They suggested that Durden shot Lopez because the officer was reacting to Maze shooting the dog.

This suggestion is supported by the findings of shooting investigation, in which it was noted Lopez was found lying dead in the prone position, handcuffed, and several feet away from the rifle laying on the couch.

Lopez's widow sued the two officers. The cops' lawyers argued (among other things) that Lopez had no constitutional rights because he was not a legal resident of the United States.

Fortunately, all of this went before a jury, despite the government's best efforts to prevent this from going to trial. Officer Samuel Maze, however, felt the only way he could survive a jury's judgment was to instruct it that it could not possibly find him liable in this case.

According to Maze, he could not be found liable for his contribution to this tragedy because he didn't actually shoot Lopez himself. His proposed jury instructions misstated the law, misinforming juries that an officer can't be sued for excessive force if he did not actually engage in a seizure" of the victim of the excessive force.

Wrong, says the judge. The order [PDF] rewriting the jury instructions (and rejecting Maze's motion for reconsideration) spells out - in detail - how wrong the officer's proposed jury instructions are.

Under Maze's understanding of the law, in a situation where multiple officers are pointing their weapons at an armed suspect in a standoff, any of the officers is entirely free to be the first to fire his weapon, so long as he takes care to miss the suspect. An officer is even free to do so with malicious intent, hoping that his shot will cause his fellow officers to follow suit and kill the suspect. He may, under defendant's understanding of the law, do so completely secure in the knowledge that any legal liability resulting from the shooting will be faced by others, and not himself. Under defendant's theory of the law, the fact that the malicious officer took care not to strike, or seize," the suspect is the beginning, middle and end of the Fourth Amendment analysis, and a court may look no further. This court regards this as an unconscionable result and it will not accept that the law requires such a result...

The court goes on to criticize Officer Maze's myopic" view of Fourth Amendment law - one that ignores Fifth Circuit precedent. According to Maze's proposed jury instructions, bystander liability" simply ceases to exist. The court points out it definitely does exist. Not only that, this legal doctrine is supported by years of Fifth Circuit Fourth Amendment rulings.

While not all of it may be exactly on point, accepting Officer Maze's interpretation of the law would be, as the court says, ridiculous.

This court believes that the fact that both Gates and the bystander liability case law provide for liability of each officer in this context is not some extraordinary leap of logic applicable only to supervisors or bystanders, but, rather, a common-sensical application of joint causation principles which is applicable whenever two officers commit two objectively unreasonable acts or omissions which combine to cause a seizure in violation of the Fourth Amendment. Under these circumstances, what possible rationale would permit dismissal of one of the officers, who - again - committed an objectively unreasonable act which was a proximate cause of a Fourth Amendment violation, simply because another officer was the only one to physically seize the suspect? None that makes any sense to this court.

The court rejects the officer's proposed jury instructions, adding to it instructions of its own. Those instructions note Officer Maze did not fire the fatal shot that killed Lopez, but instructs the jury to consider whether Maze's (missed) shot at the dog was itself an unreasonable use of force and whether his possibly unreasonable shot may have prompted Officer Durden to open fire (the next set of possibly unreasonable actions). Basically, the court is saying these events were not separate. They did not occur in a vacuum. And it won't allow Officer Maze to instruct the jury to pretend they did.

In the end (as noted above), the officers were cleared of wrongdoing. And that makes the sign-off by this court a bit more bittersweet.

The above approach makes complete sense to this court, and it believes that refusing to apply this common-sensical approach to joint causation issues simply because Maze is neither a supervisor or a bystander would be an absurd result. Of course, the clearly established" prong is known for producing absurd results, at it at least seems possible this case will eventually be mounted above its fireplace as another example of that fact. But this court will not be the one to put it there.

All too true. The court knows it. The sentence about the clearly established prong" producing absurd results" has a footnote appended that quotes from Fifth Circuit Appeals Court Judge Don Willett's scathing take on qualified immunity, specifically this paragraph of his blistering dissent in a case involving a warrantless search of private medical records:

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

At least this court isn't willing to join the long list of participants in the HOUSE ALWAYS WIN scheme the Fifth Circuit presides over while often directly encouraging this sort of absurdity. Sure, the cops walk on this one, but at least one court did what it could to prevent them from obtaining an entirely unearned win.