“If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them,” James Ho of the New Orleans-based 5th US Circuit Court of Appeals said in an opinion released Monday.
Ho, a former solicitor general of Texas, served in the Justice Department as Assistant Attorney General for Civil Rights and then as an attorney-advisor to the Office of Legal Counsel. He is a former clerk to Justice Clarence Thomas and was nominated in 2017 and confirmed 53-43 to the conservative-leaning appeals court.
He was technically dissenting from a “denial en banc.” In layman’s terms, he was criticizing his colleagues on the court for clearing the path for a wrongful death case to go forward.
The case, with hotly disputed facts on both sides, concerns a shooting that occurred in 2013 and prompted a series of 911 calls and terrorized a Texas neighborhood. When police arrived on the scene, they observed an individual 150 yards away. The suspect fired at two officers and then disappeared. After a few minutes, Gabriel Winzer rode his bicycle toward the officers. Winzer’s family contends he was not the suspect, but on an innocent mission to show officers his toy pistol and that his hands remained on the handlebars. The officers claimed he was armed and had raised a pistol to a firing position. The officers ultimately shot and killed Winzer.
Winzer’s family and estate brought a wrongful death lawsuit against the county. A district court dismissed the case holding that the officers were entitled to qualified immunity. But a three-judge panel of the 5th Circuit sent the case back down for further proceedings.
“We look forward to proceeding in this matter,” Daryl Washington, a lawyer for the Winzer family said in an interview. “There is no question on that day that the force that was used was excessive.”
But Ho made clear that the case represents something else all together.
“It is unknown how many lives were saved by these deputies on Aprils 27, 2013,” Ho wrote.
“What is known,” he said, “is that Kaufman County will now stand trial for their potentially life-saving actions — and that its taxpayers, including those who will forever be traumatized by Winzer’s acts of terror, will pick up the tab for any judgment.”
For Ho, his colleagues’ decision to stay out at this juncture of the case was worrisome.
“I have deep concerns about the message this decision, and others like it sends to men and women who swear an oath to protect our lives and communities,” he wrote.
“For make no mistake, that message is this: See something, do nothing.”
“What’s more,” he said, “we have no business — no factual basis in the record, and no legal basis under the Fourth Amendment– second-guessing split-second decisions by police officers from the safety of our chambers.”
Ho was joined in his writing by three other judges also nominated by Republican presidents: Trump, Ronald Reagan and George W. Bush.
Washington said his clients are “happy that police officers have taken an oath to serve and protect citizens.”
“However,” he said, “that oath does not give them an excuse or justification to violate the constitutional rights of those they should be serving and protecting.”
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