Fifth Circuit Finally Finds A Cop Unworthy Of Immunity, Strips Protection From Officer Who Shot Man Five Times During Routine Traffic Stop

To be fair, the Fifth Circuit Court of Appeals doesn’t always hand out immunity while waving away egregious, often horrific rights violations perpetrated by law enforcement officers. But it certainly seems to frequently find creative ways to let cops exit lawsuits, no matter how awful their behavior.

Even the Supreme Court, which has done the most to insulate officers from their own wrongdoing with its constant expansion of the qualified immunity doctrine, has recently rejected some especially terrible decisions by the Fifth Circuit.

So, it’s almost always a surprise when the Fifth Circuit Appeals Court delivers a decision [PDF] that denies an officer qualified immunity. Officers really have to go the extra mile with their rights violations to earn a denial from the Fifth. And that’s what officer Justin Hayes did in this case, which traces all the way back to the day the officer decided to kill Houston resident John Allen Sr., November 4, 2015.

Here’s how that went down:

Late that night, Officers Justin Hayes and Tyler Salina stopped Allen for a routine traffic stop. After Allen pulled the truck over, the officers approached the passenger’s and driver’s sides of Allen’s vehicle with pointed guns. Salina went to the driver’s side and asked Allen to roll the window down, but the window did not function. Salina heard Allen state that he was going to reach for his wallet. On the passenger side, Hayes instructed Allen to stop moving, to stop reaching, and to remove his foot from the gas pedal. Hayes had a taser in his pocket but did not use it. Instead, within seconds and without further warning, Hayes leaned across [passenger Shannell] Arterberry and fired six shots, hitting Allen five times at point-blank range.

What the fuck. That seems like an extreme reaction to someone who wasn’t suspected of committing any violent crime, was doing what most drivers do when stopped by cops (reach for their ID), and who had made no move to flee the scene.

What followed was just as terrible. Allen’s weight shifted after being shot, moving his foot back on the gas pedal and sending the truck slamming into a nearby scene. Officer Hayes ordered the passenger out of the car, handcuffed her, and placed her in his squad car. He then called for backup. After another seven(!) officers arrived, they broke the driver’s side window and pulled Allen’s injured body from the truck. Officer Hayes then handcuffed the dying man. Only after that — more than six minutes after Hayes shot Allen — did anyone bother to call for medical assistance. Allen died, handcuffed and shot, on the street while waiting for EMS to arrive.

Now Officer Hayes had a real problem. He had just shot someone but really had no justifiable reason for doing so. So, the officers went to work trying to convert this into a justified shooting. But they couldn’t.

Seven officers searched the scene and found no weapons in the car or in Allen’s pockets.

Then a law enforcement miracle was performed.

Twenty-two days later, however, Mandy Arroyo, an Internal Affairs Division investigator for HPD, reported that his investigation of the truck turned up a gun in plain sight on the back seat.

Hmm. Seven officers couldn’t find a gun apparently hidden “in plain sight,” but the person tasked with policing the police somehow found the gun seven other officers couldn’t find at the scene. The end result of this highly improbable turn of events was Officer Hayes receiving a promotion from the PD and an award from the city.

This is the second time the Appeals Court has handled this case. It already sent it back once, reversing the lower court’s dismissal of Allen’s survivors’ claims against the officers and city. After the suit was revived, the lower court again decided Officer Hayes was worthy of immunity because he had engaged in no violations of clearly established law.

Still wrong, says the Fifth. Try again.

As the court points out, it is possible for the use of force paradigm to shift if an officer believes they see a gun, even if no gun is actually present. But that doesn’t work in every case. And in this one, the allegations raised don’t help Officer Hayes, who can’t simply rely on his belief he saw a gun no one else saw for 22 days to justify his nearly instantaneous shooting of the driver. (Notably, the other officer on the scene did not open fire, despite being closer to the supposed threat posed by Allen attempting to retrieve his wallet.)

The majority of these factors cut against Hayes. Plaintiffs have alleged that Allen was not carrying a gun (nor was there a gun in the car), that a reasonable officer would have known there was no gun, and that Allen never reached outside the officer’s line of sight. Hayes had a taser he could have used instead of a gun, but he did not. Hayes never warned Allen that he would shoot. Taking these allegations as true, plaintiffs have pleaded sufficient facts plausibly to allege that Hayes’s decision to shoot Allen was an excessive use of force.

Not a new thing, judicially speaking. No QI on this count.

It was well established, at the time of the shooting, that such use of deadly force against a person who the officer knows is not dangerous is a constitutional violation.

The same rationale applies to Officer Hayes’ decision to handcuff the dying man after pulling his nearly-lifeless body out of the crashed truck. This seizure was clearly unlawful.

Taking as true that Hayes had no reason to believe Allen was armed and that Hayes knew Allen was seriously injured and likely could not move, a police officer would know, under these precedents, that to handcuff Allen was an arrest without probable cause under clearly established law.

Also clearly established? Ignoring a person you’ve fatally wounded for six minutes while you attend to other, apparently more pressing, law enforcement matters… like, I guess, searching for a gun that wouldn’t be summoned into existence for another three weeks.

Plaintiffs have therefore pleaded sufficient facts to make it at least plausible that Hayes’s actions were a violation of clearly established law. As alleged, Hayes stood by for six minutes without performing any medical care or calling for medical backup, aware that he had shot Allen several times and witnessed him crash into a tree, and after he had radioed for police backup for himself. In this posture, that is sufficient to survive a motion to dismiss. The claim is thus vacated and remanded.

Since the lower court has managed to get this wrong twice, the plaintiffs obviously have concern about the same judge taking a third pass at the lawsuit. Fortunately, the conclusion of the opinion notes they won’t be facing the same guy this time around.

Plaintiffs request reassignment to a different district judge. We take judicial notice, however, that the current judge has taken senior status and has reassigned all of his pending cases; he will no longer be assigned this case on remand.

Third time’s the charm? Will some meddling be-robed ass(es) decide to poll the rest of the Fifth in the hopes of giving this cop-killer (as in a cop that kills, rather than the other way around) a free pass on multiple rights violations? Who knows. That’s what makes this particular circuit so aggravating even as it provides a steady stream of emotional responses ranging from cautious elation to incredulous despair. Stay tuned.