Fifth Circuit: Never Mind Your Lying Eyes, These Cops Who Killed A Woman Deserve Immunity

The best place to be the sort of cop who thinks it’s a good idea to associate yourself with the Punisher remains the Fifth Circuit. Cops in Texas, Mississippi, and Louisiana are blessed with the most forgiving appellate court in the land — one even capable of irritating the same Supreme Court that has spent decades ensuring almost no cop goes unforgiven, no matter the level of misdeed.

And so it is here. This recent decision [PDF] by the Fifth Circuit says a car moving at speeds of up to [checks opinion] three miles per hour while boxed in by a squad car and surrounded by several police officers was such a threat to officer safety the officers had no choice but to kill Genevieve Dawes.

The set-up is this: Dawes and her husband (Virgilio Rosales) were parked in black Dodge Journey van at the back-end of an apartment parking lot. They both fell asleep in the car. A resident called the cops to report a “suspicious” vehicle, that being the Dodge Journey the couple were in.

Two officers (Christopher Alisch and Zachary Hopkins) arrived on the scene around 5 a.m. The van was parked in the last space, blocked in on the left and front by a fence. Another car was parked to its right. They pulled their guns and approached the car. (The apparent reason for the gun-pulling was the car had been reported as stolen, something that apparently wasn’t known by the couple in the car, who had purchased it from a third party.)

The windows were fogged, which made it difficult for the two officers to determine whether or not it was occupied. Officer Hopkins tried to open the rear door of the van but it was locked. Another officer arrived and (according to the Fifth Circuit’s recounting) “announced that the Journey was in fact occupied.”

A lot of shouting happened, with the officers ordering the occupants to show their hands eight times. Then two of the officers decided to move a bit further back. At that point, the engine of the van turned on. A fourth officer (Officer Hess) jumped into his cruiser and moved it forward to block the van. The van went into reverse and bumped into the cruiser. Then it moved forward and hit the fence. The van went back in reverse again as officers yelled again for the driver to show their hands.

Here’s how the rest of this interaction went:

After hitting the fence, the Journey immediately reversed. As it did so, Hess fired twelve rounds, all within a five second interval. Kimpel fired one round, simultaneous with Hess’s sixth shot.

Kimpel later stated that he fired his weapon “in fear of Officer Hopkins’ life.” Hess said he fired to protect both Hopkins and Kimpel, who he believed were in the path of the reversing Journey.

But that’s not what the recordings show:

Hopkins’s bodycam reveals that, although he was not in Hess’s or Kimpel’s immediate field of view, he had moved out of the Journey’s path several seconds before Hess first fired.

Here’s one recording of the shooting, as captured by Officer Hess’s body cam.

There are lots of things that can be seen here, including the fact that no officer was directly behind the van when it reversed. While it did hit the cruiser the first time, the second reversal hit nothing at all because there was nothing to hit.

The lower court — affirmed by the Appeals Court –said officers had no way of knowing this use of force would be excessive under these circumstances and granted immunity. The Fifth Circuit upholds this under the same reasoning:

Here, the facts exhaustively documented by multiple cameras cannot be disputed. Shots were fired in the dead of night as a vehicle traveled towards a location an officer had stood in seconds before. Baker therefore cannot “squarely govern[]” today’s facts.

There’s a dissent. And it’s a good one. The dissent, written by Judge James Dennis, asks the rest of the court what recordings they were watching, because the ones he watched didn’t show anything that justified this level of force. In fact, the force deployment was so egregious that the two officers who opened fire actually managed to get punished by their employer.

The majority’s approval of the district court’s misguided judgment extending qualified immunity to Hess and Kimpel is not only incorrect as a matter of law, but also serves to condone the inexcusable incompetence displayed by these two officers—both of whom were suspended or terminated from their positions as police officers for having violated their department’s use-of-force policy.

The dissent goes on to note that it’s improper to grant immunity at this point in the lawsuit. There’s still plenty of facts and interpretations that are open to interpretation. But, more importantly, there are a whole lot of facts captured on video by the officers’ own cameras that make it immediately clear no officer was in danger when these two officers decided to open fire.

Here, we have the benefit of video footage capturing the incident, which makes clear that the “videotape quite clearly contradicts” the officers’ dangerous belief that deadly force—indeed thirteen shots fired—was necessary to stop a boxed-in vehicle from reversing at a crawling speed of under three miles per hour when the officers could have, and in fact did, use a squad car to block Dawes’s vehicle—making it impossible for her to flee.

“Substantial and immediate risk” of injury or death did not exist here. That much can plainly be seen on the recordings.

It is undisputed that no one was in the path of Dawes’s slow-moving vehicle at the time the officers killed Dawes and injured Rosales; indeed, both officers testified that when they used deadly force they did not observe anyone in danger and did not tell anyone to get out of the way. In his deposition testimony, Hess agreed that Dawes’s vehicle was moving at less than three miles per hour when he fired his first round of shots, and that any officer in the path of Dawes’s vehicle could have moved out of the way by the time he fired his second round of shots.

Things that are disputed should go in front of a jury. Things that are undisputed — and directly contradict the assertions made by the two officers — weigh against their invocation of immunity. And long-settled case law says use of force that clearly exceeds the actual threat to safety is unconstitutional. The lower court screwed up. And the majority ratified that mistake.

The dissent has it right. But it doesn’t matter. The majority rules. And, unless the Supreme Court wants to take a swing at this (and I doubt it will if given the chance), that’s how this will remain: cops who were fired or suspended for killing Genevieve Dawes cannot be held civilly responsible for her death.