What is the difference between a legal opinion and an op-ed column? Judge James Ho of the Fifth Circuit appears to think not much. Recently, in Winzer v. Kaufman County, Judge Ho penned a dissent from an order denying a petition for rehearing en banc that seems better suited for the pages of the Dallas Morning News than the pages of the Federal Reporter. There have been many proposals to prevent mass shootings in America, and in the first sentence of his dissent Judge Ho advances a novel one: “If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.” Not only is this claim unsubstantiated and irresponsible, it is also untethered to the actual outcome of the case, which resulted –– as most qualified immunity cases do –– with a grant of immunity to the officers.
On April 27, 2013, the Kaufman County Sheriff’s Office received several reports of an armed man firing a pistol and destroying mailboxes in a residential neighborhood in Terrell, Texas. Callers described him as a black male wearing a brown shirt. The man fired at the first officers to arrive, but the officers did not initially return fire due to the presence of bystanders. The man then disappeared from sight. As more officers arrived, they confirmed the shooter was wearing a brown shirt and they established a defensive position.
A few minutes later, Gabriel Winzer –– who was wearing a blue jacket –– rode a bicycle within sight of the officers. Within six seconds of spotting Gabriel, the officers opened fire. Despite being shot four times, Gabriel managed to flee to his backyard, where his father attempted to provide medical assistance to his dying son. Though Gabriel may have had a toy gun with him when he was shot, he was “not the suspect who had fired at” the officers. Nonetheless, the officers tasered and handcuffed Gabriel when they arrived in the backyard. He was pronounced dead at the scene.
Gabriel’s family filed a § 1983 action against the officers and Kaufman County. The district court found that the officers were protected by qualified immunity, and granted summary judgement for the officers and the county. The Fifth Circuit affirmed in part and reversed in part.
In a per curium panel opinion by Judges Dennis, Clement, and Graves, the court held that the district court improperly disregarded an affidavit from Gabriel’s father and determined that failure to credit the affidavit caused the district court to err in its qualified immunity determination. Courts apply a two-prong test when determining whether to grant qualified immunity that asks: (1) whether the officer violated a constitutional right, and (2) whether the right was clearly established at the time of the conduct. The court began by considering whether the officers violated the Fourth Amendment, concluding that based on the affidavit “a jury could find that the use of deadly force was unreasonable.”
The panel then determined that under the “exacting standard” for determining whether a right is clearly established, Gabriel did not have a clearly established right to be free from excessive force in the context of the case. Because the right was not clearly established, the court affirmed the grant of qualified immunity to the individual officers. Finally, the panel reversed the grant of summary judgment in favor of Kaufman County because the district court’s decision was based on its ruling that there was no constitutional violation, a prerequisite for establishing municipal liability under § 1983.
Judge Clement dissented in part, arguing that the majority was not sufficiently deferential to the trial court, misapplied the sham affidavit doctrine, and ignored Fifth Circuit and Supreme Court precedent that requires broad deference to law enforcement officers who make split-second decisions. Judge Clement concluded that the officers acted reasonably and did not violate Gabriel’s constitutional rights. She warned that the majority’s decision “undermines officers’ ability to trust their judgment during those split seconds when they must decide whether to use lethal force.”
The Fifth Circuit denied the petition for rehearing en banc. Judges Smith, Elrod, Southwick, Ho, Engelhardt, and Oldham voted in favor of rehearing; Chief Judge Owen and Judges Jones, Stewart, Dennis, Haynes, Graves, Higginson, Costa, Willett, and Duncan voted against rehearing.
Judge Smith wrote a short, melodramatic dissent to the denial that cited both Galileo (“E pur si muove.”) and one of his previous dissents (“Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace officers with only a few seconds to react to dangerous confrontations with threatening and well-armed potential killers . . . .”).
But the real provocation came from Judge Ho’s dissent, which was joined only by Judges Smith, Clement, and Engelhardt. Judge Ho’s claim that “to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them” is unsubstantiated, irresponsible, and unconnected to the actual case.
Judge Ho’s opening salvo is not supported by a single piece of evidence. Indeed, the dissent contains very little legal argument –– most of it is a selective description of the events that preceded the shooting. The dissent is presumably leanly sourced because available evidence points the opposite direction: police officers enjoy broad immunity and are rarely punished for violating constitutional or statutory rights. In recent years the Supreme Court has consistently sided with officers in split-second decision cases, making a number of summary reversals of qualified immunity denials. Though the Court claims that one must not provide “a case directly on point” to show that a law has been clearly established, it has erected an extremely high bar by requiring the inquiry to “be undertaken in light of the specific context of the case.” This is hardly a doctrine that allows for unjustified punishment of police officers –– it is so pro-defendant that Justice Sotomayor has criticized the transformation of qualified immunity “into an absolute shield for law enforcement officers.”
Judge Ho’s suggestion is also irresponsible given the sheer frequency of police shootings of unarmed individuals. Nationwide, as of November 8, 783 people have been shot and killed by police in 2019; 116 of those deaths occurred in the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. And in the last two years, Texas officers have been implicated in two particularly shocking shootings of unarmed individuals in their own homes. To suggest that police officers ought to enjoy greater latitude to “shoot first and think later” is to ignore this grim reality.
Finally, Judge Ho’s proposal is untethered to the actual outcome of the case. Unless it is a punishment to be told that there is a question of material fact as to whether you violated the Fourth Amendment, the police officers in this case were not actually punished –– they were granted qualified immunity and dropped from the litigation. Though Kaufman County must continue to defend itself, it is farcical to suggest that law enforcement officers will second-guess themselves in split-second situations based on a concern for potential municipal liability (and, in any event, plaintiffs must meet a high burden to prove municipal liability under § 1983). What’s more, concern for personal liability almost certainly does not cause hesitation when an officer decides whether to pull the trigger: virtually all law enforcement officers are indemnified in police misconduct cases.
Judge Ho would be wise to rethink his unsubstantiated and irresponsible claim, particularly in light of the near absolute immunity already enjoyed by law enforcement officers and the very facts of this case. Ultimately, Winzer suggests a conclusion quite at odds with its dissents: if we want to stop the mass shooting of unarmed individuals by law enforcement officers, perhaps we should stop protecting police officers who make hasty decisions to kill unarmed individuals.