SELINA MARIE RAMIREZ, individually and as independent administrator of, and on behalf of, THE ESTATE OF GABRIEL EDUARDO OLIVAS and the heirs-at-law of GABRIEL EDUARDO OLIVAS, and as parent, guardian, and next friend of and for female minor SMO; GABRIEL ANTHONY OLIVAS, individually v. JEREMIAS GUADARRAMA; EBONY N. JEFFERSON
No. 20-10055
United States Court of Appeals for the Fifth Circuit
February 8, 2021
Lyle W. Cayce, Clerk
Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CV-7
Before JOLLY, STEWART, and OLDHAM, Circuit Judges.
This case arises out of the tragic death of Gabriel Eduardo Olivas. While responding to a 911 call reporting that Olivas was threatening to kill himself and burn down
Olivas‘s widow and two children subsequently brought suit, alleging that Officers Guadarrama and Jefferson had violated Olivas‘s Fourth Amendment rights when they tased him. Guadarrama and Jefferson asserted the defense of qualified immunity and moved for dismissal. The district court denied their motion, stating that more factual development was needed. Guadarrama and Jefferson then filed this interlocutory appeal. We reverse the denial of qualified immunity and remand to the district court with instructions to dismiss the claims against Guadarrama and Jefferson. With this background setting, we now proceed to explain more fully.
I
A.
On July 10, 2017, Gabriel Anthony Olivas called 911 and reported that his father was threatening to kill himself and burn down their house. Corporal Ray, Sergeant Jefferson, and Officers Scott, Elliott, and Guadarrama of the Arlington Police Department responded. Officer Guadarrama was first on the scene, and he began preparations while awaiting backup. Sergeant Jefferson and Officer Elliott were next to arrive, and the three of them proceeded to enter the house.
Upon entering, Officer Guadarrama detected the odor of gasoline. A woman directed the officers to a corner bedroom on the east side of the house. There they found Gabriel Eduardo Olivas (“Olivas“) leaning against a wall and holding a red gas can. After turning his flashlight on Olivas, Officer Elliott allegedly shouted to Sergeant Jefferson and Officer Guadarrama, “If we tase him, he is going to light on fire.” Elliott then discharged OC spray in Olivas‘s face, temporarily blinding him. It was at about this point—whether before or after being sprayed is not entirely clear from the record—that Olivas doused himself in gasoline. Guadarrama and Elliott, at least, and maybe Jefferson as well, noticed that Olivas was holding some object that appeared as though it might be a lighter. Guadarrama, followed in short succession by Jefferson, fired his taser at the gasoline-soaked man, causing him to burst into flames.
Corporal Ray and Officer Scott arrived at the scene at about this time. When they entered the house, they found Olivas engulfed in flames. The fire spread from Olivas to the walls of the bedroom, and the house eventually burned to the ground. The officers at the scene were able to evacuate the family members who had remained in the house, but Olivas was badly burned and later died from his injuries.
B.
Olivas‘s wife and son (“Plaintiffs“) subsequently brought suit, under
Guadarrama and Jefferson filed a joint notice of appeal and then a motion for reconsideration. Because filing of the notice
II
This court reviews de novo a denial of a motion to dismiss pursuant to
This court reviews appeals of qualified immunity de novo. Cantrell v. City of Murphy, 666 F.3d 911, 918 (5th Cir. 2012) (citation omitted). “When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (per curiam). We now proceed to the analysis.
III
A.
“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). Because qualified immunity is an immunity from suit, not merely a defense to liability, “it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It is for this reason that a denial of qualified immunity is immediately appealable and that a defendant‘s entitlement to qualified immunity should be determined at the earliest possible stage of the litigation. Id. at 526-27; Pearson v. Callahan, 555 U.S. 223, 232 (2009). This scheme prevents a defendant entitled to immunity from being compelled to bear the costs of discovery and other pre-trial burdens.
The qualified immunity analysis has two components: (1) whether a plaintiff alleges or shows1 the violation of a federal constitutional or statutory right; and (2) whether the right in question was clearly established at the time of the alleged violation. Pearson, 555 U.S. at 232. Since Pearson, a reviewing court may tackle these questions in whatever order it deems most expeditious. Id. at 236. The second question, addressing whether a right was “clearly established,” encompasses another question, discussed separately in some of this court‘s opinions, about the objective reasonableness of a defendant official‘s conduct. See Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2014). In order for a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The reasonableness
B.
We now turn to the first prong of the qualified immunity analysis. Plaintiffs allege that Guadarrama and Jefferson violated Olivas‘s Fourth Amendment rights by use of excessive force when they fired their tasers at him. The question is thus whether Olivas had a constitutional right not to be tased, not as a general proposition but under the particular circumstances present in this case. Plaintiffs have the burden of showing that such a right existed and that this was clearly established at the time of the incident.
The Fourth Amendment protects individuals from being subjected to excessive force when they are physically apprehended or subdued by agents of the government. Graham v. Connor, 490 U.S. 386, 393-94 (1989). The question of what is “excessive” is thus intertwined with the issue of reasonableness that is embedded within the Fourth Amendment. “To establish the use of excessive force in violation of the Constitution, a plaintiff must prove: (1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012) (internal quotation marks and citation omitted). We now turn to address those elements as they apply in this case.
IV
A.
Here Plaintiffs can easily show injury: Olivas died, and their house was destroyed. Next we must ask whether Guadarrama or Jefferson employed excessive force.
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.2 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.” 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.
Having set forth this factual background, we now consider the reasonableness of the force that was employed. Graham sets forth certain specific factors to be considered in the Fourth Amendment reasonableness inquiry: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Here, the severity of the threatened crime, i.e., felony arson,
B.
Arguing that the officers’ conduct was unreasonable, Plaintiffs cite a number of cases, most of which are unpublished or not from this circuit. Although true that use of a taser in unwarranted circumstances can be unconstitutional, the facts of this case do not resemble those of Samples v. Vadzemnieks, 900 F.3d 655 (5th Cir. 2018), or Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), the only published Fifth Circuit cases cited by Plaintiffs. Samples involved the tasing of an apparently intoxicated man who supposedly had “growled at” a police officer and adopted a “fighting stance.” Samples, 900 F.3d at 658. Newman involved an arrestee who was tased after getting into an altercation with the arresting officer while he was being patted down. Newman, 703 F.3d at 760. Given the degree of granularity involved in the qualified immunity analysis,3 we see no reason to engage in a detailed discussion of these cases. The only commonality they share with the instant case is that police officers in these cases also used tasers. Certainly, neither involved a suicidal individual, flammable material, a credible threat of arson, or the potential immolation of others.
Plaintiffs also cite extensively to the unpublished case of Peña v. City of Rio Grande, 816 F. App‘x 966 (5th Cir. 2020) (per curiam). In Peña, this court reversed a grant of qualified immunity. Police officers had tased a juvenile who was running away from them, saying that they believed she might run into oncoming traffic. Id. at 968. As an unpublished case, Peña is persuasive authority only, and we find it unpersuasive because it bears minimal resemblance to the instant case. For example, Peña had, at most, committed a minor misdemeanor infraction. She had not threatened harm to herself or anyone else. There was no particular reason to think she would run into the street. See id. at 973-74. By contrast, Olivas was credibly threatening to kill
himself and feloniously burn down a house containing at least six other people.
C.
We now turn to the officers’ arguments that their conduct did not violate any right of Olivas‘s, or at least that they violated no right whose existence was clearly established at the time of the incident. Guadarrama cites a number of cases in which police officers employed deadly force in at least somewhat comparable circumstances and in which this court found no constitutional violation. Examples include Rice v. Reliastar Life Ins. Co., 770 F.3d 1122, 1134 (5th Cir. 2014) (finding no constitutional violation where officer shot allegedly suicidal individual, who had been ordered multiple times to drop the gun he was
These cited cases recognize the principle that “[t]he use of deadly force is constitutional when the suspect poses a threat of serious physical harm to the officer or others.” Elizondo, 671 F.3d at 510. Plaintiffs refer us to case law purportedly establishing that deadly force may not be employed against individuals threatening only themselves. This discussion, however, is not apropos. Olivas may only have been threatening to harm himself, but he was threatening to do so in a way that put everyone in the house (and possibly others) in danger.
V
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.
While the preceding discussion applies to both officers, we now must distinguish between the actions of Guadarrama and those of Jefferson.4
Given that Guadarrama fired first, the most readily apparent justification for his use of his taser was to prevent Olivas from lighting himself on fire.5 Jefferson fired second, and while at one point he claimed to have
Accepting the pleaded facts as true and construing them in the light most favorable to Plaintiffs, neither officer‘s conduct was unreasonable, nor was the force they employed clearly excessive. We thus find that Plaintiffs’ factual allegations do not make out a violation of Olivas‘s Fourth Amendment rights.
The plaintiffs have asserted that Officers Guadarrama and Jefferson violated the Fourth Amendment rights of their deceased husband and father by using excessive and unreasonable force, causing his death. The officers have invoked qualified immunity from the lawsuit, arguing that there was no constitutional violation because their use of force was reasonable under the circumstances. We have found that, given the horrendous scene that the officers were facing, involving the immediate potential for the destruction of lives and property, the force used—firing tasers—was not unreasonable or excessive, and consequently we hold that the officers did not violate the Fourth Amendment and are thus entitled to qualified immunity.
For the reasons given, we REVERSE the order of the district court denying qualified immunity to Officer Guadarrama and Sergeant Jefferson and REMAND this case for entry of an order dismissing all claims against Guadarrama and Jefferson.