Judge Willett Torches 5th Circuit Dismissal

The underlying case was horrific, even if it wasn’t really a qualified immunity decision as many misconstrued it. The kicker to QI isn’t the first prong, that there was a constitutional violation, but the second, that the violation was “clearly established.” After all, if there was no constitutional violation in the first place, then the cops did nothing wrong. Even if there was no QI, cops would still prevail. This seems to get lost in the sauce for many.

After the original Fifth Circuit panel dismissed the complaint under Rule 12(b)(6), holding that tazing a guy soaked in gasoline such that he burst into flames was not a violation of his constitutional rights because there were others, cops included, placed in danger and the police had, the court found, no other option. The complaint did not plead a plausible cause of action.

The plaintiffs had two options, to either petition for cert from the Supreme Court or to move for rehearing en banc from the circuit, after which it could still petition for cert. They sought rehearing, which the circuit denied, but lit a blazing conflagration amongst the judges, led by Judge Willett’s dissent.

From the concurrence of Judge E. Grady Jolly:

From purple prose, to the astonishment of what God has wrought, to images of nineteenth-century Justices in green eyeshades hovering over a telegraph transmitter tapping out opinions in Morse code, to the patriotic celebration of 42 U.S.C. § 1983, and finally to the sermonette that good can come even from the tragedy of the unanimous panel opinion, much as it did to Samuel F.B. Morse in the invention of the telegraph, the dissent packs it all in—except for a fair and complete rendition of the facts and law.

And

With respect, the dissenting opinion emotes; it does not reason.Indeed, when reading the dissent, one questions why these officers have not been charged with first-degree murder. According to the dissent, the officers simply arrived at a suicidal man’s home and burned him alive—for no reason. See post, at 1–16 (Willett, J., dissenting). Of course, that is not what  happened and not what the complaint alleges. May I redirect the dissent from its rhetoric to the factual allegations of the complaint. (Italics in original.)

From the concurrence of Judge James C. Ho:

If the only way to know what the Constitution requires is to consult lawyers and conduct discovery, what message does that send to police officers? What are they supposed to do in extremely dangerous situations such as this?

And

Our Nation is currently engaged in a rigorous debate over the need for police reform. Some argue the police should not use force, even in cases involving deadly threats—or that we should defund the police altogether. But that is a policy debate for the political branches, not the judiciary. As judges, we apply our written Constitution, not a woke Constitution.

What did Judge Willett do that so enraged his fellow circuit judges to write these concurrences?

Standards matter. The panel quoted the correct 12(b)(6) standard but blurred it with a heightened one. This is an appeal from the district court’s refusal to dismiss, meaning:

• We must accept the facts in the complaint as true.
• “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
• Dismissal is appropriate only when a plaintiff has not alleged “enough facts to state a claim to relief that is plausible on its face” and has failed to “raise a right to relief above the speculative level.”
• We must allow discovery if those facts permit a “reasonable expectation that discovery will reveal evidence of illegal[ity].”

In sum, at the motion-to-dismiss stage, “it is the defendant’s conduct as alleged in the complaint that is scrutinized.”

These are commands, not suggestions.

All he is saying is give peace a chance. A 12(b)(6) dismissal is on the complaint, that it fails to plead a “plausible” cause of action and so should be dismissed before discovery can be had, after which the defendants can move for summary judgment. While Judge Willett finds the constitutional violation of burning a man to save a man obvious, which addresses an exception to the second prong of qualified immunity, a backdoor to “clearly established” when the conduct is so flagrantly wrong that even a cop would know it, he also challenges the similar assumption indulged by the panel and the judges on rehearing.

The panel opinion, however, invoked something resembling summary-judgment review, hesitating over “disputed facts,” crediting the officers’ allegations instead of Plaintiffs’, and speculating about what nonlethal options the officers had—declaring that Officer Guadarrama fired first and had a “readily apparent justification for use of his taser” and that Officer Jefferson fired second and “had good reason” to tase an already ignited Olivas.

What else could the cops do? That is, indeed, the question, and one that, as Judge Willett points out, the cops knew in advance of torching gas-soaked Olivas.

According to the panel, igniting Olivas does not get past the constitutional inquiry, whether the force was plausibly excessive. For support, the panel cited the rule that “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.” Fair point, but wholly inapt here. There is no need for 20/20 hindsight when there is 20/20 foresight. Before they discharged their tasers, Officers Guadarrama and Jefferson were affirmatively warned by “a reasonable official on the scene”—their fellow officer, right then and there, who shouted, “If we tase him, he’s going to light on fire!”

But then comes Judge Willett’s second point, the kicker.

Second, the panel stressed that because Olivas “posed a substantial and immediate risk of death or serious bodily injury to himself and everyone in the house,” it was reasonable for the officers to tase Olivas to “prevent Olivas from lighting himself on fire.” But according to the complaint, the officers’ tasing Olivas is what turned risk into reality, engulfing him in flames and ensuring that he “posed a substantial and immediate risk of death or serious bodily injury to himself and everyone in the house.”

The case wasn’t about qualified immunity, at least not yet, but about whether the complaint proffered a plausible claim such that the plaintiffs would get to the discovery stage to ascertain what drove the cops to “turn risk into reality” of the exact thing the panel held justified their conduct, and what options the police had that judges, omniscient though they believe themselves to be, missed.

The facts of the case were certainly of the sort that make judges shudder, so emotionally wrenching as to compel a jury to find for the plaintiff despite the police having acted within the reasonable scope of their ability and authority. But that’s the issue to be addressed at summary judgment, not a 12(b)(6) dismissal. Was Judge Willett really so outrageous to his brethren to justify such a vituperative reaction by arguing that the circuit should give plaintiffs a chance?

H/T Raffi Melkonian

14 thoughts on “Judge Willett Torches 5th Circuit Dismissal

  1. Hunting Guy

    I’m sorry but as I was reading this I immediately thought of Johnny Cash’s Ring of Fire.

    Black humor, I know. (Can I say that or has that term gone into a black hole?)

  2. Skink

    You’re right about the “sauce.” Nearly all QI issues are resolved on the quality of the pleading using ordinary rules. Nearly none are resolved on the clearly established prong because so much is clearly established. This is especially true in cases of this type: excessive force is clearly established as a constitutional violation.

    The reason QI is raised at dismissal by lawyers doing this stuff is that it gives them a shot at one of the rarest of appellate beings: an interlocutory appeal from denial of dismissal. These cases turn on pleading grounds, just like any dismissal motion for failure to support a claim. But by raising QI, you get the express train to the circuit.

    And so it is here. The plaintiff was done in by pleading too much. A 54-page complaint will nearly-always include allegations that plead a plaintiff right out of court–in any type of case. Internal inconsistencies will arise. Write too little, the court allows amendment to state the claim. Write too much, your day is over.

    You see the clarity of the issues. Cops get called to a suicidal man pouring gas all around. Others are in the room with him. A cop warns the taser will ignite the gas and kill the subject and maybe the others in the room. The taser is nonetheless used. Support those claims, and only those claims, and it’s past dismissal. Keep writing and you get the boot because the court is required to consider all the factual allegations.

    Willett’s error is reading the complaint too generally, where the allegations are very specific and lengthy. That’s the problem he has with 11 other circuit judges.

    1. SHG Post author

      Meh. Before computers and Twiqbal, complaints were shorter (as were decisions). But don’t assume too much from the page numbers.

      1. Skink

        I’ve been the appellee in more than 60 circuit cases without a reversal. My prize is the allowance to make decisions by weight.

        1. SHG Post author

          It’s a pie eating contest, pal. And it’s the swamp. Beating complaints drafted in road kill blood don’t count.

  3. B. McLeod

    I don’t see why a man would be different from a village. If the officers just backed out and left the guy to light himself up, they would have been criticized for that too. Obviously, all police should be equipped with some kind of fire retardant agent that would make it impossible for a guy soaked in petrol to light himself afire. These officers, for some reason, just didn’t have theirs with them.

    1. SHG Post author

      Maybe there were better available options. After we, like the judges, are lawyers and it’s possible we might be limited in our knowledge of what can and should have been done. Maybe not, in which case the plaintiffs lose at SJ. This is about whether they get discovery, or whether the fact that the judges believe they are too smart for the complaint to offer a plausible cause of action. This is not about who wins at trial.

  4. Mike V.

    I was a Taser instructor for a number of years. It is a known thing that tasing someone doused in gasoline (or some OC sprays) can cause them to catch fire. I’m surprised the plaintiff’s didn’t know this.

    1. SHG Post author

      Plaintiffs knew it. Defendants knew it. The judges knew it. Everyone knew it. That wasn’t the issue.

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