The Fifth Circuit And The First Rule

The fact pattern was one of those that makes your head hurt.  Radley Balko explains:

Cass and Charles Camp were owners of the Abilene Gold Exchange, a business that bought jewelry and other precious gems and metals and paid the owners in cash. Like pawn shops, these are businesses where thieves often try to unload stolen merchandise, but the opinion itself points out that the two men had cooperated with police investigations in the past. Neither man had much of a criminal past. The only charge between them was a 30-year-old felony conviction against Camp for possession of marijuana.

Very long story short (and you should read Radley’s full post, as the facts are far too long to repeat in full here), the two were deemed “anti-cop” by the cops, failed to upload new buys to a website for cops to check out for stolen goods, and a new cop to the unit decided they needed some investigation, so he got a warrant.

[I]nstead of walking in, in uniform, and giving the two men the opportunity to peacefully comply with a search warrant, “a team in body armor led by a uniformed officer would enter the business quickly with guns drawn to secure the premises and execute the warrant” — for “the safety of the officers.”

The new cop, Chris Smith, went into the raid wearing dark glasses and a black bulletproof vest that gave no indication that he was a cop. His shield was on the side of his waist, but only visible from one side.  More long story short, Smith went to the office in the back of the store where Cass was working.

As Smith walked forward along the wall, his drawn gun, which was extended in front of him, crossed the open doorway and was the first thing Cass saw. At that point, Cass began to draw his own gun, which was holstered at his right hip. Smith continued walking forward, and as he came to the doorway, he saw Cass drawing his gun and raising it toward Smith. Because Smith was not wearing a vest marked “POLICE” and his badge was on his right side opposite Cass, nothing Cass could see indicated that Smith was a police officer; Cass saw only a gunman dressed in black body armor and dark sunglasses. Smith stepped to the right and fired twice, causing Cass to drop his gun and slump to the floor. 

An untenable situation all around, caused by the decision to execute a warrant with force rather than a polite knock on the door.  Except Cass was dead at Smith’s hand.

In affirming dismissal of the complaint, the 5th Circuit held:

As Cass continued to raise his gun and pointed it at Smith, Smith fired twice, causing Cass to drop his gun and slump to the floor. The encounter lasted no more than a couple seconds; neither man had time for reflection. As the district court correctly concluded, “[n]o reasonable juror could conclude that at the time of the shooting Defendant Smith did not reasonably perceive a threat to himself and the other officers.” Indeed, we have held that officers were entitled to qualified immunity for their use of deadly force when facing less immediate threats.

In other words, two guys were confronted with what they perceived as a life-threatening situation.  Each acted to save his own life. Cop wins.  Not just because Smith beat Cass to the trigger, but that the law prefers the life of a cop over the life of the other guy, who, just like the cop, wanted to make it home for dinner that night.

But there is a difference. Cass had no say in how the situation was created, what gave rise to the life-threatening scenario. Smith, on the other hand, had control, and could have prevented anyone from ending up dead that day. Does that alter the “cops’ lives matter more” analysis?

Appellants argue that “[t]he district court erred in allowing the Individual Defendants to create a dangerous, deadly situation and then avoid liability for their acts due to the alleged ‘necessity’ of having to respond with deadly force to the very situation they created.” We agree that by choosing to conduct the raid with surprise and with guns drawn, APD created a dangerous situation that led to Cass’s death. Nevertheless, our precedent forecloses consideration of this context in evaluating Appellants’ excessive force claim:

The excessive force inquiry is confined to whether the officer was in danger at the moment of the threat that resulted in the officer’s shooting. Therefore, any of the officers’ actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.

Not only is Smith’s life more valued under the law, but Smith, who had the capacity to make choices that could have avoided an armed confrontation, could have alerted Cass to the fact he was a police officer, could have saved Cass’ life, has no duty to do so.

It’s not that Smith conducted himself well, or that the court approved of his handling of the execution of the warrant. It didn’t. The district court didn’t.

The district court agreed that “the style and manner of executing the search warrant” was not “the wisest plan,” but that it was “at best negligent conduct and cannot form the basis of a constitutional violation.”

Of course, the resultant bullets that landed in Cass’ body might have been considered a constitutional violation, but as the circuit held, there was no “clearly established right” at stake here, given that the right to survive a violent confrontation with police that arose solely out of police malfeasance is subject to any crack, any spin, any twist a court can find to explain away why you have no right to live.

Sure, there is the occasional decision to deny police qualified immunity when they kill, which gives rise to people thinking they have as much of a right to make it home to dinner as the cop.  But don’t be misled. Those rare occasions offer no comfort to a guy like Cass, who did nothing more than act to save his own life from mind-bogglingly stupid police choices.

The First Rule of Policing is alive and well. Cass, on the other hand, is dead. That it was all due to the cops’ incompetence and needless violence changed nothing.

8 thoughts on “The Fifth Circuit And The First Rule

  1. kenm

    I want to shake my head, and say “unbelieveable”.

    But, I can’t. I keep reading about stories like these, where the only thing of import seems to be the life of the police officer.

    Is it just my faulty memory, or was there a time when the police were the shields for the civilians they protected, instead of their executioners?

  2. Brady Curry

    The court is telling the public that if you see a person with a gun, drop any weapon you have, and do exactly as they say because that person “might” be a cop. If that person is not a cop, and you end up getting shot by some common criminal instead, well that’s just too bad. Because if that person had been a cop, and you didn’t immediately surrender upon first sight, the cop “will” shoot you.

    I know this is a legal blog aimed toward lawyers. As a non-lawyer I greatly appreciate the work you put in and I try and wrap my tiny mind around the points being expressed and discussed herein. When I tell friends of some of the legal rulings you discuss they are in disbelief in that the courts and judges could have made such decisions based upon what my friends think they know about the law and the Constitution.

    I know you are fighting the good fight and the people on the street need to help. The people need to elect politicians who can make real changes in the law. Or at least in the way it is interpreted by the courts. If not, I don’t know where this all ends. Probably in a nation of the government, by the government, for the government. The public’s only roll will be to provide tax money and be completely submissive to anyone they meet (because that person could be from the government).

  3. John Barleycorn

    snap! ****
    Clear the aggregation! ! !

    Jump and park!

    You almost want to say something…..

    If you are not ready?

  4. Patrick Maupin

    Let this be a lesson to the police: all the lying in their initial affidavit about how they nicely and properly identified themselves was completely superfluous. Coulda gotten a doughnut instead of writing that fiction.

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