In July 2017, Arlington, TX police officers Ebony Jefferson and Jeremias Guadarrama responded to a 911 call placed by a son worried about his father, Gabriel Eduardo Olivas, who was threatening to commit suicide by lighting himself on fire. When Jefferson and Guadarrama found Olivas in a bedroom, they smelled gasoline and could see Olivas holding a gas can. Jefferson and Guadarrama knew from their training that tasers could ignite gasoline, but they drew and aimed their tasers anyway. Another officer on the scene, Caleb Elliott, warned them “[i]f we Tase him, he is going to light on fire.” Despite this explicit warning, Jefferson and Guadarrama tased Olivas, setting him on fire and killing him, thereby causing the very injury they had been called to prevent. Olivas’s family then brought a Section 1983 claim against Jefferson and Guadarrama.

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 the 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. In addition, the court distorted basic principle of civil procedure by adopting a heightened pleading standard for excessive-force claims, as the panel required specific allegations that the officers had an alternative that would have avoided the harm.

Cato, joined by the Law Enforcement Action Partnership and MacArthur Justice Center, has therefore filed a brief in support of Olivas’s family’s cert petition, urging the Supreme Court to summarily reverse the lower court. The Fifth Circuit in particular has been especially reluctant to heed the Supreme Court’s repeated instruction that, in the case of obvious constitutional violations, overcoming qualified immunity should not require a prior case with nearly identical facts. Indeed, the Fifth Circuit was rebuked for exactly such a mistake twice in the October 2020 term; in Taylor v. Riojas and McCoy v. Alamu, the Supreme Court vacated Fifth Circuit decisions that granted immunity to corrections officers who committed flagrantly obvious constitutional violations.

Even if the Supreme Court is unwilling to reconsider qualified immunity entirely, the doctrine’s legal deficiencies ought to make the Court especially vigilant about checking lower courts that allow erroneous expansions of the doctrine, thereby compounding a preexisting legal error. Ensuring that the Fifth Circuit does not continue to defy the Court’s case law is especially important today, at a time when public trust in our government institutions has fallen to record lows. By telling the public, in essence, that even obvious instances of official misconduct can go unremedied, the Fifth Circuit is not only misapplying the Court’s precedents—it is fueling a crisis of confidence in our nation’s law-enforcement officers.