Fifth Circuit Rejects Dog-Killing Cop’s Pleas For Qualified Immunity
Well, well, well. Is the Fifth Circuit finally going to start redeeming itself?
Just recently, the Fifth Circuit Appeals Court bucked the appellate trend (well, what there was of it…) by declaring geofence warrants unconstitutional. That ran counter to the expectations of this court, which has often chosen to treat the Constitution as a set of suggestions, especially when it likes the arguments any government in its jurisdiction is making.
And here it is bucking its own trend by denying qualified immunity to Deputy James Killian, who went on a (dog-)killing spree while responding to a domestic disturbance report. On December 2016 (welcome to the extremely slow roll of justice, folks) the deputy was dispatched to handle a call about a “big fight going on” between Rubicela Ramirez and her boyfriend, Francisco Gonzales. What followed Killian’s arrival on the scene was both a literal and Constitutional bloodbath.
The Fifth Circuit’s opinion [PDF] details what came next:
The next thirty-eight seconds of video show what happened from there. From the living room, Killian entered the kitchen, where he encountered Ramirez entering from another door. Killian ordered her to “come here, get over here, get over here and face that wall.” Ramirez approached Killian. Killian then ordered: “get over there and face that g— d—n wall, b—h,” simultaneously pepper spraying Ramirez’s face. While this was happening, Gonzales entered the kitchen from the same door as had Ramirez. At the same time, a pit bull entered the kitchen from another door and walked up to Gonzales, wagging his tail. Killian ordered Gonzales to “get over here” and said “I’ll shoot your dog.” The dog—Bruno—began to walk towards Killian, and Killian shot him three times.
We’ll get to more of this horror show in a moment, but let’s walk through a few of these selected moments in Killian’s law enforcing effort. First, he gave Rubicela Ramirez conflicting instructions. He told her to both “get over here” and “face that wall.” Killian was not standing against a wall presumably, so it would have been difficult for Ramirez to both move towards the deputy and the wall simultaneously.
Furthermore, as in any domestic dispute, the woman is usually considered to be the victim. (I realize this is not always the case, but that’s the presumption… and usually a solid one.) The deputy chose to greet the presumptive victim with this: “Get over there and face the goddamn wall, bitch.” Not only was this an abhorrent way to treat a potential victim, but it was completely uncalled for. (Calling her a “bitch” was never excusable, btw.) Ramirez had done nothing more than enter her own kitchen. And for that simple action, she was treated like a perp who had deliberately aggravated the responding officers.
Then there’s the dog, which did nothing more than exist. At least Killian was right about one thing: he promised to shoot the dog and he did, despite the dog apparently no more of a threat to him than the “bitch” he had ordered to face the wall, as well as the boyfriend, who was even less prepared for the presence of a law enforcement officer in his kitchen.
What was already terrible got even worse because Deputy James Killian has no business being a law enforcement officer.
Killian then ordered Ramirez and Gonzales to get onto the ground and continued to pepper spray them. Neither Ramirez nor Gonzales immediately complied, but Gonzales put his hands onto his head. Then, a German Shepherd appeared in the kitchen and walked toward Killian, who immediately shot it four times as he backed into the living room. Killian briefly exited the house from the door that he had entered and radioed for help. He then returned to the living room and continued to order Ramirez and Gonzales to get onto the ground. Ramirez and Gonzales went to their knees. Killian continued to pepper spray them. For the next few minutes, the three shouted profanities at each other as Killian unsuccessfully tried to get Ramirez and Gonzales to lie down on the ground.
Enter the third contradictory instruction: get on the ground. Come over here. Get up against the wall. Lay down on the floor. Even if one might make the argument it’s possible to both get up against the wall and lay down on the floor, there’s a really good reason neither Ramirez or Gonzales complied with this instruction. And that reason has everything to do with confirmed dog killer, Deputy James Killian.
The video makes it disturbingly clear that the kitchen floor, onto which Killian was ordering Ramirez and Gonzales to lie down, was covered by this point in their dogs’ blood.
Having pumped seven bullets into two dogs and an untold amount of pepper spray into the faces of the couple, Killian handcuffed the pair and sat them on the living room couch. Shortly after that, Sheriff Kent Riley arrived at the home. Ramirez recognized Sheriff Riley and figured he might be there to actually help, rather than harm. And he might have been there to do that. But when Ramirez stood up and called for the sheriff by his first name, this happened:
Killian immediately grabbed her by the hair and wrestled her to the ground. As he did so, his body camera fell off briefly and went black.
The couple’s allegations say this isn’t exactly what happened. It wasn’t “wrestling” so much as it was a brief, extremely violent attack by the deputy.
Ramirez and Gonzales maintain that immediately after Killian took Ramirez to the ground, he slammed her head against the floor, though the video was still black at this point and does not show it.
Undeniably awful. Awful enough the lower court denied immunity to Killian and put the whole thing in front of a jury. While the jury did find in favor of the deputy on some of the allegations, one of them stuck:
The unreasonable-seizure claim proceeded to trial. Before beginning his case-in-chief, Killian moved for judgment as a matter of law, arguing that Ramirez and Gonzales had failed to present evidence sufficient to overcome Killian’s qualified immunity defense. The district court denied the motion. The case then went to the jury, which was charged consistent with Fifth Circuit Pattern Jury Instruction 10.3. The jury found that Killian had “acted in an objectively unreasonable manner” and that “no reasonable officer could have believed that shooting the dog was lawful,” awarding Ramirez and Gonzales $100,300 in compensatory and punitive damages.
Having failed with the first judgment as a matter of law attempt, Killian immediately fired off another one after the jury had rendered its verdict. Somehow, that one worked and the lower court reversed its own conclusions (and the jury verdict), claiming the suing couple had not presented enough evidence to overcome Killian’s invocation of qualified immunity.
The Fifth Circuit, however, is not as welcoming of Killian’s repeated pleas that he should be allowed to escape judgment. While the court agrees Killian had the right to enter the house without a warrant in response to the domestic altercation call, nothing about what followed his entry is covered by Constitutional exceptions. And that means some of stuff that was written off earlier (like the excessive force claim) gets reinstated, along with the “unreasonable seizure” that was Killian’s killing of the couple’s two dogs.
While it is true that Killian was investigating a possible assault—a serious crime —Ramirez and Gonzales were not actively resisting arrest. Killian’s contention that his first orders were not contradictory, and that Ramirez and Gonzales did not comply, are flatly refuted by the video evidence. Killian’s order to “come here” was the exact opposite of his order to “get over there.” Nor were there any indications that either Ramirez or Gonzales posed a threat to Killian.
[…]
Moving now to Ramirez’s and Gonzales’s head-banging claim, we likewise find that they have satisfied both steps of the qualified immunity inquiry at the summary judgment stage. This is an even easier determination. Ramirez and Gonzales allege that, after Killian took Ramirez to the ground and was firmly on top of her, he slammed her head against the floor. There was summary judgment evidence that Ramirez suffered injury in the form of a black eye. And evaluating the evidence in Ramirez’s and Gonzales’s favor, Ramirez gave no indication that she was attempting to escape when she stood from the couch, as she was simply begging Sheriff Riley for help. Nor is it particularly plausible, especially once another officer arrived on-scene, that a handcuffed, pepper-sprayed subject could have posed much of a threat to Killian, either when she was standing or after Killian took her to the ground.
Established. Established. As to the dogs, it’s similarly well-established.
We are not even the first court to hold that a robust consensus of persuasive authority clearly establishes this exact legal proposition. The First Circuit in Maldonado “reject[ed]” the defendant state official’s argument that the “law was not clearly established because this court had not earlier addressed” whether killing a pet dog could constitute an unreasonable seizure. Rather, because four other circuits had already held as much, “the law was sufficiently recognized by courts to be clearly established.”
Furthermore, the lower court screwed up when it gave Deputy Killian a second swing at the “judgment as a matter of law” pinata. In doing that, it shifted the burden of proof to the plaintiffs, demanding they satisfy a completely non-existent third prong of the qualified immunity argument: “reasonable officer evidence.” That’s just not a thing, says the Appeals Court. The other two factors have already been satisfied, something that probably should have been gleaned from the jury finding in favor of the plaintiffs on the unlawful seizure claim.
Three errors is three errors too many. Back it goes to the lower court with the excessive force claims reinstated and the dog-killing judgment put back into place. Deputy Killian heads back to court as well, guaranteed that, if nothing else, he’s cost taxpayers a little more than $100,000. If the government is smart, it will offer a settlement before things get any worse or any more costly.