Appellate Judges

Fifth Circuit and Junk Science: Tasing Olivas Was to “Prevent Olivas from Lighting Himself on Fire”

In a series of immunity cases – qualified, judicial and attorney immunity appeals which should have been rejected, the Fifth Circuit affirms. It’s further indication that congress needs to intervene and do so quickly.

Court Grants Qualified Immunity To Cops Who Set A Man On Fire By Tasing Him

FEB 19, 2021 | REPUBLISHED BY LIT: FEB 27, 2021




Two Texas police officers who ignited a man by tasing him, even after they saw him douse himself with gasoline and were warned, “If we tase him, he’s going to light on fire,” were granted legal immunity last week when a federal court tossed the surviving family’s civil rights lawsuit against the officers involved.

On July 10, 2017, Gabriel Eduardo Olivas threatened to kill himself. Panicked, his son dialed 911. Three officers from the Arlington Police Department—Jeremias Guadarrama, Ebony Jefferson, and Caleb Elliott—responded and quickly found Olivas in his bedroom, holding a red gas can. Elliott warned the other officers: “If we tase him, he’s going to light on fire.” To try and immobilize Olivas, Elliott pepper sprayed him. It blinded, but didn’t stop, Olivas. Instead, Olivas doused himself in gasoline and yelled that he’s going to burn the place to the ground.

Thinking he saw a lighter in Olivas’ hands, first Guadarrama, then Jefferson, fired their Tasers at the suicidal man now drenched in gasoline. Olivas burst into flames, just as their fellow officer had warned.

Read the Fifth Circuit Opinion by Judges Jolly, Stewart and Oldham

Several days later, Olivas died in the hospital, with more than 85% of his body covered in burns. Outraged, his family filed a civil rights lawsuit in federal court, asserting that Guadarrama and Jefferson violated Olivas’ rights when they tasered him amid considerable explosive hazards.

The two officers responded that they were shielded by “qualified immunity,” which protects government employees from any legal liability, unless they violate “clearly established” rights. Last year, a federal judge denied qualified immunity to Guadarrama and Jefferson, ruling that “more factual evidence is needed.” It set the case for trial that spring, but those plans were quickly derailed by the officers’ appeal to the Fifth Circuit U.S. Court of Appeals. As the Fifth Circuit explained, “qualified immunity is an immunity from suit, not merely a defense to liability,” and so “it is effectively lost if a case is erroneously permitted to go to trial.”

Unanimously siding with the officers, the Fifth Circuit declared that “neither officer’s conduct was unreasonable, nor was the force they employed clearly excessive,” and so, “there was no constitutional violation.” In overturning the denial of qualified immunity, the court emphasized that Olivas was threatening felony arson and “posed a substantial and immediate risk of death or serious bodily injury to himself and everyone in the house.” Tasing Olivas was to “prevent Olivas from lighting himself on fire,” the court added.

Yet tasing Olivas also “posed a substantial and immediate risk of death or serious bodily injury to himself and everyone in the house” and ultimately was the spark that set him on fire. Attorneys for the family argue that police could and should have evacuated the family, called for SWAT and crisis intervention teams to respond, or “could have easily” subdued Olivas by “rushing and grabbing” him.

Perhaps anticipating criticism of the officers’ actions, the judges “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.” “Qualified immunity is inappropriate only where the officer had fair notice…that his particular conduct was unlawful,” the court added.

But in this case, the officers were literally warned—and by a reasonable official on the scene no less—that if they tased Olivas, “he’s going to light on fire.” Moreover, Axon, which manufactures Tasers, has included this warning since the company’s founding in 1993: “TASER Devices Can Ignite Explosive Materials, Liquids or Vapors.” Plus there’s basic science: Gas is flammable, and sparks ignite.

“We respectfully disagree with the Fifth Circuit’s decision. In our opinion, tasing a man doused with gas, knowing that he will catch on fire, supposedly to keep the man from catching himself on fire, is irrational and thus clearly unreasonable force violating the Constitution,” said Dean Malone, who represents Olivas’ family. “The conduct was so outrageous, that even under a qualified immunity analysis, no previous case with similar facts was necessary to put officers on notice that their conduct violated the Constitution.”

Unfortunately, the Fifth Circuit has routinely shielded government workers from accountability. One of the panel members, Judge Andrew Oldham, also penned the opinion that threw out a lawsuit filed by José Oliva, a retired veteran who was savagely beaten by police at the VA Hospital in El Paso. Late last month, the Institute for Justice filed a cert petition on behalf of Oliva, urging the Supreme Court to hear his case and close “an enormous constitutional vacuum.”

Meanwhile, another member of the Olivas panel, Judge E. Grady Jolly, last year sided with the majority in a case that upheld qualified immunity to a prison guard accused of pepper spraying an inmate “for no reason,” even though the court had previously denied immunity to officers accused of unprovoked punching, beating, and tasing. And in November, the Supreme Court overturned a Fifth Circuit decision that upheld qualified immunity for prison guards accused of leaving a man in cells “teeming with human waste.”

“Mr. Olivas’ family will continue seeking relief in the courts, hoping that the courts will ultimately allow a jury to determine whether what happened was reasonable,” added Malone.

Attorneys for the officers did not respond to requests for comment.

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Fifth Circuit and Junk Science: Tasing Olivas Was to “Prevent Olivas from Lighting Himself on Fire”
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