Ramirez v. Guadarrama

• Decision Date: 25 June 2021
• Docket Number: No. 20-10055,20-10055
• Citation: 2 F.4th 506 (Mem)
• Parties: 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, Plaintiffs—Appellees, v. Jeremias GUADARRAMA; Ebony N. Jefferson, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

2 F.4th 506 (Mem)

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, Plaintiffs—Appellees,

v.Jeremias GUADARRAMA; Ebony N. Jefferson, Defendants—Appellants.

No. 20-10055

United States Court of Appeals, Fifth Circuit.

FILED June 25, 2021

Bruce K. Thomas, Law Office of Bruce K. Thomas, Dallas, TX, Thomas Dean Malone, Law Offices of Dean Malone, P.C., Dallas, TX, for Plaintiffs - Appellees.

Edwin Armstrong Price Voss, Jr., Esq., Brown & Hofmeister, L.L.P., Richardson, TX, for Defendant - Appellant Jeremias Guadarrama.

Scott Douglas Levine, Banowsky & Levine, P.C., Dallas, TX, for Defendant - Appellant Ebony N. Jefferson.

Jay Remington Schweikert, Cato Institute, Washington, DC, for Amici Curiae.

Before Jolly, Stewart, and Oldham, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

Per Curiam:

The court having been polled at the request of one of its members, and a majority of the active judges who are in regular service and not disqualified not having voted in favor ( FED. R. APP. P. 35 and 5TH CIR. R. 35 ), rehearing en banc is DENIED. In the en banc poll, four judges voted in favor of rehearing (Judges Smith, Graves, Higginson, and Willett) and thirteen judges voted against rehearing (Chief Judge Owen and Judges Jones, Stewart, Dennis, Elrod, Southwick, Haynes, Costa, Ho, Duncan, Engelhardt, Oldham, and Wilson).

E. Grady Jolly, Circuit Judge, concurring in denial of rehearing en banc:¹

The dissent and I must have received different sets of dots and dashes from the 1844 telegraph message that it attempts, strangely, to metaphorically adapt to this appeal. See post , at –––– – –––– (Willett, J., dissenting). For this appeal is not the "particularly egregious" case the dots and dashes transmitted to it. See id. Instead, this appeal is a textbook case for the grant of qualified immunity, as the doctrine presently is promulgated.

A 13–4 majority of the court has voted not to rehear, en banc, this factually horrifying but—legally speaking—transparent qualified-immunity appeal. The unanimous panel opinion explains why we must grant immunity to Officer Jeremias Guadarrama and Sergeant Ebony Jefferson. See Ramirez v. Guadarrama , 844 F. App'x 710, 713–17 (5th Cir. 2021) (per curiam). The unanimous panel opinion also explains why we cannot quarterback from our Delphic shrines, three years later, the split-second decision-making required of these officers in response to a suicidal man (1) doused in gasoline, (2) reportedly high on methamphetamine, (3) screaming nonsense, (4) holding a lighter, and (5) threatening to set himself on fire and to burn down the home, occupied by six people, which he had earlier covered in gasoline.² See id.

With respect, the dissenting opinion emotes; it does not reason.³ 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 –––– – –––– (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:

• Officers arrived at the home in response to a 911 call by a member of Olivas's family. Compl. ¶14.

• The family member had told dispatch that Olivas "was threatening to burn down the house." Compl. ¶15.

• The family member had told dispatch that Olivas "was pouring gasoline in the house." Compl. ¶15.

• Another officer was dispatched to the home based on reports of "an alleged suicidal subject." Compl. ¶19.

• This officer was told that the "alleged suicidal suspect" was "high on methamphetamines." Compl. ¶19.

• This officer was told that the "alleged suicidal suspect" who was "high on methamphetamines" was also "pouring gasoline inside the home." Compl. ¶19.

• After receiving the call from dispatch, Officer Guadarrama stated that Olivas might be "the same subject" he had encountered on a previous call, who had "want[ed] suicide by cop at the time." Compl. ¶38.

• When officers arrived at the home, they saw Olivas's wife "in the front yard waving ... and yelling ‘[h]urry up.’ " Compl. ¶ 17.

• When officers entered the home, they smelled gasoline. Compl. ¶23.

• When officers entered the bedroom where Olivas was located, they saw Olivas pour gasoline on his head while holding a lighter. Compl. ¶23.

• There were six people in the bedroom: Olivas, Olivas's wife and son, and three officers. Compl. ¶25.

• Olivas—gasoline-soaked and armed with a lighter in a gasoline-drenched bedroom occupied by five other people—"began screaming ‘non-sense’ [sic ] and yelling that he was going to burn the place to the ground." Compl. ¶49.

• Olivas stood just six feet away from the closest of the officers at the time he threatened to "burn the place to the ground." Compl. ¶50.

These factual allegations—demonstrating the intense, fast-moving, and incredibly dangerous circumstances under which the officers must make a choice when there are no good choices—make no appearance in the dissent. See post , at –––– – –––– (Willett, J., dissenting). If "facts are all that matter," id. , at ––––, surely the omission must be an oversight of such facts from the dissent's "officers gone wild" narrative.⁴ Perhaps the dissent would like another opportunity to look at and try to understand the record.

* * *

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.

Three years after the fact, the dissent is unable to articulate what the Fourth Amendment required Officer Guadarrama and Sergeant Jefferson to do in the circumstances they confronted. As for the "obviousness" of the Fourth Amendment violation, if a distinguished United States Circuit Judge—after months of research, thought, and contemplation—does not now know what the Constitution then required, it seems "obvious" that "these officers had no ‘fair and clear warning of what the Constitution require[d]’ " in the split-second, life-or-death encounter. City & Cnty. of S.F. v. Sheehan , 575 U.S. 600, 617, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 746, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (Kennedy, J., concurring)).⁵

In short, I write to say the dissent is quite unfair to the record, to the law, and to the officers.

James C. Ho, Circuit Judge, joined by Jolly and Jones, Circuit Judges, concurring in denial of rehearing en banc:

A robust majority of this court has voted to deny rehearing en banc in this matter. I concur and write separately to offer a brief response to the dissent authored by Judge Willett.

A unanimous panel of our court found that the police officers committed no constitutional violation in this admittedly tragic case. Their reason is simple—there was no reasonable alternative course of action that the officers could have taken instead to protect innocent lives:

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 [v. Connor ], 490 U.S. [386,] 396 [109 S.Ct. 1865, 104 L.Ed.2d 443] [(1989)]. 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 [officers] Guadarrama or Jefferson, in the exigencies of the moment, acted unreasonably.

Ramirez v. Guadarrama , 844 F. App'x 710, 716 (5th Cir. 2021).

Olivas didn't just threaten to light himself on fire. He also "posed a substantial and immediate risk of death or serious bodily injury to ... everyone in the house"—including members of Olivas's own family, as well as the officers themselves. Post , at –––– – –––– (Willett, J., dissenting). So the officers’ actions "turned risk into reality"—but only for the one person who actively sought to bring about his own death. Id. No one else was harmed, notwithstanding the "risk of death or serious bodily injury to ... everyone in the house." Id.

I.

According to the dissent, however, the officers committed an "obvious," "egregious," and "conscience-shocking" "constitutional violation." Id. at ––––, ––––, ––––, ––––, ––––. This despite the dissent's admission that the panel may well be right that "the officers had no apparent options." Id. at ––––.

But how can a constitutional violation be "obvious," "egregious," and "conscience-shocking," when the dissent can't tell the officers what they should have done differently to keep people safe?

The dissent responds that, if we allowed discovery, we might uncover some reasonable alternative action that the officers could have taken.

Two responses. First, the dissent does not explain how discovery would impact the analysis. To the contrary, the dissent has already decided that the officers...