935 F.3d 444

JERRY E. SMITH, Circuit Judge, dissenting:
This is a "red flag" case if ever there was one. The en banc majority commits grave error, as carefully explained in the dissents by Judge Jones, Judge Willett, Judges Ho and Oldham (jointly), and Judge Duncan. Yet eleven judges join the majority.
Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace officers with only a few seconds to react to dangerous confrontations with threatening and well-armed potential killers. In light of today's ruling and the raw count of judges, there is little chance that, any time soon, the Fifth Circuit will confer the qualified-immunity protection that heretofore-settled Supreme Court and Fifth Circuit caselaw requires.
Red flags abound. Judge Duncan cogently details the "rich vein of facts" describing this plaintiff's undisputed actions in the hours leading up to the shooting.
• Red flag: a 9mm semi-automatic handgun and ammunition.
• Red flag: a double-barrel shotgun with shells.
• Red flag: a .44 magnum revolver.
• Red flag: a .38 revolver.
• Red flag: a suspect who had broken into a gun safe and stolen an unknown quantity of weapons and ammunition.
• Red flag: a police visit the night before to the suspect's house because of a disturbance with his parents.
• Red flag: a suspect with a dangerous knife at his parents' house.
• Red flag: a suspect who had a wild look in his eye and was smoking K2.
• Red flag: a suspect, distraught over breaking up with his girlfriend, moving toward the school where she was a student.
• Red flag: a suspect near an elementary school.
• Red flag: a suspect with personal issues including drug abuse.
• Red flag: a suspect seen running through the woods with at least three weapons.
• Red flag: a suspect irate and distraught.
• Red flag: a suspect who said he would shoot anyone who came near him.
• Red flag: a suspect armed with at least one handgun and possibly three.
• Red flag: a suspect who had refused police demands to drop his weapon.
• Red flag: a suspect who deposited a cache of weapons and ammunition at a friend's house after arguing with his parents.
• Red flag: a suspect who yelled obscenities at an officer.
• Red flag: a suspect who had threatened to kill his girlfriend and himself.
• Red flag: a suspect whom the district court described as troubled.
• Red flag: a suspect described in his complaint as suffering from obsessive compulsive disorder, treated with medications from numerous medical professionals, and having poor judgment and impaired impulse control.
* * * * *
Normally we expect police officers to recognize such red flags and to respond appropriately. Instead of protecting these officers from obvious danger to themselves and the public, however, the en banc majority orders them to stand down. What is the hapless officer to do in the face of today's decision? What indeed is the "clearly established law" that the majority now announces? The judges in the majority do not say.
The law of qualified immunity was poignantly summarized in 2019 by a dissenting judge who is now in the majority. Today's en banc ruling turns those words to dust.
I respectfully dissent.
See, e.g., Kingsley v. Hendrickson , --- U.S. ----, 135 S. Ct. 2466, 2474, 192 L.Ed.2d 416 (2015) (courts "must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer"); Tennessee v. Garner , 471 U.S. 1, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (whether a "particular" seizure was justified depends on "the totality of the circumstances").
All of these facts come from reports and transcriptions of radio transmissions made within a day or two of the incident. None come from affidavits submitted by the officers years later. And, as explained below, none of these pre-encounter facts was disputed by Cole or analyzed by the district court.
See, e.g., Mullenix v. Luna , --- U.S. ----, 136 S. Ct. 305, 306, 193 L.Ed.2d 255 (2015) (assessing officer's shooting of suspect during car chase beginning with events preceding the "18-minute chase"); Plumhoff v. Rickard , 572 U.S. 765, 768-70, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) (assessing officer's shooting of suspects in Memphis, Tennessee after lengthy car chase beginning with traffic stop in "West Memphis, Arkansas"); Brosseau v. Haugen , 543 U.S. 194, 195, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (evaluating officer's shooting of fleeing suspect beginning with events "[o]n the day before the fracas"); Colston , 130 F.3d at 100 (determining officer's failure to warn was not objectively unreasonable "[i]n light of the totality of the circumstances facing [the officer]") (citing Garner , 471 U.S. at 10, 105 S.Ct. 1694 ).

Passage view · GavelSight