5th Circuit Holds Torching By Taser Reasonable

The call was for a troubled person in a troubling situation. Gabriel Eduardo Olivas was suicidal, having doused himself with gasoline, so his son called 911. Two Arlington, Texas, police officers, Jeremias Guadarrama and Ebony Jefferson, responded to the call and found Olivas smelling of gasoline.

The police claim that Olivas threatened not only to torch himself, but to burn down the house, an allegation his family denied in their §1983 complaint, which should have been taken as true for the purpose of a motion to grant the cops qualified immunity. The court nonetheless factored it into its decision.

We view the disputed facts in the light most favorable to Plaintiffs: Guadarrama, Jefferson, and Elliott arrived at the house in response to a 911 call, having been told that Olivas was threatening to kill himself and burn down the house. They found Olivas in a bedroom that smelled of gasoline. Olivas was holding a gas can. Officer Elliott shouted, “If we tase him, he is going to light on fire.”

To emphasize the obvious, their purpose of being there was to deal with a suicidal person, to prevent him from killing himself, harming others, burning down his house. They recognized, indeed said aloud, that the one thing they could not do if they were to fulfill any purpose for being there was to tase him, because if they did, “he is going to light on fire.” So what did they do?

Elliott then discharged OC spray at Olivas, temporarily blinding him. Olivas began to shout nonsense and yell that he was going to burn the place to the ground. He poured gasoline over himself. At some point before either taser was discharged, Officers  Guadarrama and Elliott noticed an object in Olivas’s hand that appeared to them to be a lighter. Guadarrama fired his taser, striking Olivas in the chest. Olivas burst into flames. Jefferson then fired his taser, which also struck Olivas in the chest.

The cops did the one thing, the thing they knew beforehand would be the one thing, that would cause the very problems they were there to prevent from happening. And rather than save a life, prevent harm and damage, they tased Olivas. The knew he would burn. He burned. And still they did it. And the Fifth Circuit held this to be a reasonable use of force.

The officers sought qualified immunity against the 1983 action, arguing that it was not a violation of Olivas’ constitutional rights to have tased him, and even if it was, it was not clearly established. Prevailing on either prong would be sufficient. so the court held that this was a reasonable use of force.

“It is undisputed that a Taser can cause death in more situations than would use of soft hand techniques or impact weapons applied to certain portions of a person’s body,” the complaint says. Since Elliott said he was standing about six feet from Olivas, it adds, he “could have easily” subdued the blinded man by “rushing and grabbing” him, and “other officers in the room could have done the same.” By firing their stun guns even after they were warned of the likely result, Alvarez says, Guadarrama and Jefferson violated the Fourth Amendment, which prohibits excessive force during searches and seizures.

The contention is that there were effective alternatives to tasing Olivas, although whether “rushing and grabbing” was something that “could have easily” been done and, if Olivas had a lighter, could have been accomplished without risk of the police going up in flames with Olivas is unclear. But the court not only didn’t accept the alternative, but affirmatively approved the choice made by the cops.

Olivas posed a substantial and immediate risk of death or serious bodily injury to himself and everyone in the house. He was covered in gasoline. He had been threatening to kill himself and burn down the house. He appeared to be holding a lighter. At that point, there were at least six other people in the house, all of whom were in danger.

That there were other, better, alternatives to the decision of the police to respond in a certain way does not, in itself, make the actions taken by police unreasonable. Faced with options, they chose the one they believed best, and courts are reluctant to second guess that choice. Rather, the question is whether the choice was, standing alone, unreasonable and therefore in violation of the person’s constitutional right not to be subject to unreasonable force.

The problem, then, is whether the choice that was made was reasonable in light of the fact that they fully appreciated that the choice was going to result in torching Olivas. The cops made a decision about how to respond knowing that they were about to burn a suicidal man alive. And did it anyway.

Although the employment of tasers led to a tragic outcome, we cannot suggest exactly what alternative course the defendant officers should have followed that would have led to an outcome free of potential tragedy. We emphasize that the reasonableness of a government official’s use of force must be judged from the perspective of a reasonable official on the scene, not with the benefit of 20/20 hindsight. See Graham, 490 U.S. at 396. The fact that Olivas appeared to have the capability of setting himself on fire in an instant and, indeed, was threatening to do so, meant that the officers had no apparent options to avoid calamity. If, reviewing the facts in hindsight, it is still not apparent what might have been done differently to achieve a better outcome under these circumstances, then, certainly, we, who are separated from the moment by more than three years, cannot conclude that Guadarrama or Jefferson, in the exigencies of the moment, acted unreasonably.

The court can’t come up with an alternative course? Fair enough. That’s why there is discovery and trial, where police and expert witnesses produce evidence and testimony as to whether there was a better, safer, more effective course of action that would not have risked the lives of the officers and the family, while not lighting up Olivas. But since qualified immunity was granted, there will be neither discovery nor trial to allow a jury to determine whether the worst possible outcome, a “calamity,” is a reasonable use of force.

9 thoughts on “5th Circuit Holds Torching By Taser Reasonable

  1. Guitardave

    Yes, this comment is off-topic, please trash it if you think it’s gonna derail things.
    I just can’t fathom that they would not have the situational awareness to have one of the cops armed with a fire extinguisher. WTF?
    You get a call involving gasoline, a lighter, and crazy and you DON’T bring a fire extinguisher?…jeze, the guy might have survived his involuntary impersonation of..

    1. SHG Post author

      It’s not off topic, though I don’t know whether having a fire extinguisher was a viable possibility. But that’s the point, the court is just making its own assumptions in place of evidence that could provide a real answer. Maybe that is the answer. Maybe not. But we’ll never know because they killed the case before we get to the point where competent evidence answers the question.

      1. Guitardave

        I see. They didn’t go far enough to find fault, that in turn could have led to establishing a protocol that could possibly save lives in a future, similar situation. Shame on the court.

        I do understand how the obvious can be overlooked in tense situations…and that your average officer Obie may not be known for his uber-creative thinking, but damn, you’d think maybe someone at dispatch might have instructed them to take the extinguisher in all cop cars along
        for their own protection, as much as Mr. Crazy and company.

        1. SHG Post author

          Not quite. They’re judges, not cops on the street. I’m a lawyer, not a cop on the street. What makes sense theoretically may not make sense in reality. At the same time, we’re not necessarily aware of all the possibilities that could have been available that would have saved a life rather than destroyed one. The point is that QI ends the case, so we never get to the point where we’re talking about real things rather than whatever crap floats through lawyers’ and judges’ heads.

  2. Bryan Burroughs

    Applying the whole-cloth rationale of QI, I can see a reason to dismiss the wrongful death suit, as it’s clear officers are allowed to use tasers on people. And, yes, there’s an obvious Catch-22 going on here, but QI has always been a catch-22.

    However, the logic for dismissing the property damage is absurd. There’s a clearly established right not to have the cops burn down your house. And the cops’ rationale for burning down the house was to prevent some other guy from burning down the house. QI doesn’t apply there, period.

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