emphasizing the obvious case should be “rare”
How later courts described this case
- emphasizing the obvious case should be “rare”
Written by the judges who cited it.
The opinion
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 24, 2023
No. 21-10644 Lyle W. Cayce
Clerk
De’On L. Crane, Individually and as the Administrator of the Estate
of Tavis M. Crane and on behalf of the Statutory Beneficiaries, G. C.,
T. C., G. M., Z. C., and A. C., the surviving children of Tavis M.
Crane; Alphonse Hoston; Dwight Jefferson; Valencia
Johnson; Z. C., Individually, by and through her guardian Zakiya Spence,
Plaintiffs—Appellants,
versus
City of Arlington, Texas; Craig Roper,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CV-91
ON PETITION FOR REHEARING EN BANC
Before Higginbotham, Dennis, and Graves, Circuit Judges.
Per Curiam:
The petitions for rehearing en banc are DENIED because, at the
request of one of its members, the court was polled, and a majority did not
vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35).
No. 21-10644
In the en banc poll, six judges voted in favor of rehearing (Richman,
Jones, Smith, Duncan, Oldham, and Wilson), and ten voted against rehearing
(Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho,
Engelhardt, and Douglas).
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No. 21-10644
James C. Ho, Circuit Judge, concurring in denial of rehearing en banc:
The dissent persuasively argues why the panel should’ve affirmed.
And that’s what I would’ve done had I been a member of the panel.
That’s because I firmly agree that it’s not the job of the judiciary to
second-guess split-second, life-and-death decisions made by police officers
who act in a reasonable, good faith manner to protect innocent law-abiding
citizens from violent criminals. These same themes have been sounded in
our recent cases like Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc),
Winzer v. Kaufman County, 940 F.3d 900 (5th Cir. 2019) (denying rehearing
en banc), and (again) Cole v. Carson, 957 F.3d 484 (5th Cir. 2020) (en banc).
See also Horvath v. City of Leander, 946 F.3d 787 (5th Cir. 2020).
But here’s the problem: These themes appeared in our dissenting
opinions (which I either joined or authored). The majority of the en banc
court rejected those concerns in case after case.
Meanwhile, en banc majorities on our court have also committed a
second category of error. It should be the job of the judiciary to hold police
officers and public officials accountable for violating a citizen’s established or
obvious constitutional rights. But once again, the majority of the en banc
court has rejected that view in case after case. See, e.g., Gonzalez v. Trevino,
_ F.4th _, _ (5th Cir. 2023) (Ho, J., dissenting from denial of rehearing en
banc) (collecting cases).
To be sure, that’s the opposite problem of the one presented in this
case—instead of subjecting officers to trial who shouldn’t be on trial, we
immunize officers from trial who shouldn’t be immune. But both problems
plague our en banc court, and illustrate the futility of granting rehearing en
banc today. “We grant qualified immunity to officials who trample on basic
First Amendment rights—but deny qualified immunity to officers who act in
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No. 21-10644
good faith to stop mass shooters and other violent criminals.” Id. at _. As a
result, “officers who punish innocent citizens are immune—but officers who
protect innocent citizens are forced to stand trial. Officers who deliberately
target citizens who hold disfavored political views face no accountability—
but officers who make split-second, life-and-death decisions to stop violent
criminals must put their careers on the line for their heroism.” Id. at _.
In short, “we grant immunity when we should deny—and we deny
immunity when we should grant.” Id. at _.
It’s a disturbing and dangerous pattern. And it’s confusing to citizens
and police officers in our circuit. As the dissent here rightly observes, “we
sow the seeds of uncertainty in our precedents—which grow into a briar
patch of conflicting rules, ensnaring district courts and litigants alike.” Post,
at _ (Oldham, J., dissenting from denial of rehearing en banc). The dissent
expresses further exasperation because this should’ve been a straightforward
case—after all, “[i]t’s all on video. And if a picture is worth 1,000 words,
query how much this video is worth.” Id. at _.
I agree. In fact, I would say (and I did say) the exact same things last
year in Edwards v. Oliver, 31 F.4th 925 (5th Cir. 2022). Like this case,
Edwards involved a police officer shooting at a driver in an effort to prevent
serious or fatal injury to innocent bystanders. In my panel dissent in Edwards,
I explained that that case was factually indistinguishable from an earlier case
that our court had just decided the previous year. I noted that video evidence
in the two cases confirmed the similarities in the two police actions. The
officers in the two cases took similar action in response to a similar threat. A
panel of our court granted immunity to the officer in the earlier case. Yet the
panel majority denied immunity to the officer in Edwards.
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No. 21-10644
So Edwards presented the exact same problems of “uncertainty” and
“conflicting rules” that rightly concern the dissent today. Yet our court
denied the officer’s petition for rehearing en banc in Edwards—no doubt
making the same judgment call about the futility of rehearing en banc in that
case that I do in this case.
***
I have no desire to tilt at windmills. En banc rehearing can be taxing
on our court, but well worth the effort—so long as there’s a genuine
opportunity to advance the rule of law.
But I see no hope of advancing the cause here. Rehearing this case en
banc would be futile. See, e.g., Cole, 935 F.3d 444 (en banc majority reaching
same result as panel majority). It doesn’t matter that I fully agree with the
dissent. Seven votes (the six dissenters and me) do not a majority make on
our en banc court. We had seven votes in Cole, too—and it wasn’t enough
there, either. See id.
I share the frustration of my dissenting colleagues today—as well as
my dissenting colleagues in Cole and Winzer, those who voted (in the
minority) for rehearing en banc in Gonzalez, and my colleagues in futility in
still other cases. That frustration is what leads me to vote to deny rehearing
en banc today.
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No. 21-10644
Andrew S. Oldham, Circuit Judge, joined by Jones, Smith,
Duncan, and Wilson, Circuit Judges, dissenting from the denial of
rehearing en banc:
Our refusal to take this case en banc is revelatory of a general
reluctance (at best) or refusal (at worst) to devote the full court’s resources
to qualified-immunity cases. That’s imprudent.
Officer Roper made a split-second decision to shoot a noncompliant
driver (Crane) in the heat of a wrestling match just before Crane twice ran
over another officer with his car. For several minutes, Crane (who had five
outstanding warrants) repeatedly ignored commands to turn off and exit the
car. Crane then pressed the accelerator causing the tires to spin and smoke
and the engine to rev. At this point, Officer Roper sensibly concluded that
Crane was going to kill or seriously injure someone using a three-ton
projectile—so he shot Crane. It’s all on video. And if a picture is worth 1,000
words, query how much this video is worth.
So why did the panel deny qualified immunity? The opinion begins by
explaining why (in its view) Whren v. United States, 517 U.S. 806 (1996), was
wrongly decided. Never mind that Whren is a unanimous, landmark Supreme
Court decision that has nothing to do with excessive force. Then the panel
holds that the obvious-case exception vitiates the officer’s qualified
immunity. Never mind that neither our court nor the Supreme Court has
applied that exception in a split-second excessive-force case. And never mind
that the panel’s theory of events—that Crane was shot in the chest at point-
blank range and only then somehow managed to drive over a police officer
twice—is belied by the video and common sense.
In split-second excessive-force cases, it’s “especially important” to
define clearly established law with specificity and not at a “high level of
generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (quotation
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No. 21-10644
omitted). The panel decision instead uses the obvious-case exception to
swallow the Mullenix rule. But see District of Columbia v. Wesby, 138 S. Ct. 577,
590 (2018) (emphasizing the obvious case should be “rare”).
So why did we deny rehearing en banc? True, qualified-immunity
cases are fact-dependent. But so are, say, criminal-procedure cases. That
doesn’t make either unimportant—as evidenced by the fact that the Supreme
Court takes at least one case from one or both categories every Term. If fact-
sensitive cases like these warrant the Supreme Court’s discretionary
jurisdiction, they certainly warrant ours. And by refusing to rehear this case
and others like it, we sow the seeds of uncertainty in our precedents—which
grow into a briar patch of conflicting rules, ensnaring district courts and
litigants alike.
To paraphrase Justice Thomas’s view in a different context, some
judges’ disagreement with qualified immunity “has found its natural
complement in other judges’ distaste for correcting errors en banc, no matter
how blatant, repetitive, or corrosive of circuit law.” Shoop v. Cunningham,
143 S. Ct. 37, 44–45 (2022) (Thomas, J., dissenting from denial of certiorari).
I respectfully dissent.
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