No reasonable officer in the Defendants’ position could possibly have thought this particular use of force was justified. Even where force itself is called for, clearly established Fourth Amendment doctrine requires that use of force be measured and proportionate to the threat posed by a suspect. Here, it’s inconceivable that knowingly setting Olivas on fire was a measured, appropriate response to the mere possibility—contested in the record—that Olivas might light himself on fire. One could as well argue that, if Olivas had been threatening to hurt himself with a gun, a reasonable response would have been to shoot him before he could shoot himself.
But despite this obvious violation of Olivas’s constitutional rights, the Fifth Circuit held that Defendants were entitled to qualified immunity. That decision was not simply an egregious misapplication of Supreme Court and Fifth Circuit precedent on excessive force—it is also reinforced a dangerous but widespread misunderstanding of how the doctrine of qualified immunity should apply in cases of obvious constitutional violations. Specifically, the panel disclaimed reliance on several Fifth Circuit cases involving excessive force against non‐resisting suspects, simply because those cases did not involve “a suicidal individual, flammable material, a credible threat of arson, or the potential immolation of others.” But to the extent this case involved those distinct facts, those distinctions only underscore how plainly unreasonable the use of force here actually was. It is precisely because this case involved “flammable material” and the “potential immolation of others” that the use of force was excessive—the Defendants knowingly created the very danger they were called to prevent.
Cato — joined by the ACLU, Americans for Prosperity, and Disability Rights Texas — has therefore filed an amicus brief encouraging the entire Fifth Circuit to grant the petition for rehearing. In its recent decision in Taylor v. Riojas, 141 S. Ct. 52 (2020), the Supreme Court reaffirmed the basic principle that qualified immunity turns on whether a defendant had “fair warning” that their conduct was unlawful, and that in cases with “particularly egregious facts” — like this one — it is unnecessary for plaintiffs to identify a prior case involving the same factual scenario. While Taylor did not formally revise the doctrine of qualified immunity, the decision was a much‐needed corrective to the increasingly common practice of lower courts requiring a prior case exactly on point before denying immunity. This case thus presents a crucial opportunity for the en banc Fifth Circuit to ensure that lower courts fully understand and abide by the Taylor decision and curb the worst excesses of the qualified immunity doctrine.