XPost: alt.law-enforcement, talk.politics.guns, alt.fan.rush-limbaugh   
   XPost: alt.politics.usa.republican   
   From: zinn@reno.us   
      
   As a gunman approached Robb Elementary School in Uvalde, Texas, one police   
   officer had an AR-15 trained on the suspect. Had he taken the shot, a   
   report from the Advanced Law Enforcement Rapid Response Training Center   
   concluded last week, 2 teachers and 19 children might still be alive.   
      
   Instead, the officer turned to his supervisor and requested permission to   
   engage. By the time he turned back around, the suspect was already inside   
   the school. Given the circumstances, the report argued, a "reasonable   
   officer" would have pulled the trigger.   
      
   But when cops in Texas have pulled the trigger under similar   
   circumstances, they’ve ended up in court. In at least three cases since   
   2014, the Fifth Circuit Court of Appeals sided against police officers who   
   made split-second decisions to shoot armed suspects—one of whom appeared   
   to be headed for a Texas high school. The court, which has jurisdiction   
   over the Lone Star State, denied several officers’ requests for qualified   
   immunity, a legal defense that protects police from civil lawsuits.   
      
   It also sent an entire county to trial for the actions of its officers,   
   who were responding to an active shooter in a residential neighborhood. In   
   that case, Winzer v. Kaufman County, police shot a suspect who was   
   bicycling toward them with a gun.   
      
   "If we want to stop mass shootings," Fifth Circuit Judge James Ho wrote in   
   a blistering dissent in Winzer, "we should stop punishing police officers   
   who put their lives on the line to prevent them."   
      
   These cases form the legal backdrop to the worst school shooting in Texas   
   history, which unfolded as police waited more than an hour before entering   
   the fourth-grade classroom where a shooter had barricaded himself. It is   
   impossible to know what was going through the officers’ heads as they   
   sanitized their hands and ignored parents’ desperate pleas for them to   
   storm the school. But one thought may have crossed their minds: What will   
   happen to us if we make the wrong call?   
      
   The answer, judging from the Fifth Circuit’s jurisprudence, is that the   
   officers could go to trial. Each of the court’s verdicts against the   
   police drew scathing dissents from a handful of judges, who warned that   
   the rulings would encourage cops to hesitate in life-and-death situations.   
   Read in the aftermath of Uvalde, the dissents are eerily prescient.   
      
   "The majority opinion," Judge Edith Clement wrote in Winzer, "instructs   
   [officers], in that pivotal split second, to wait. But when a split second   
   is all you have, waiting itself is a decision—one that may bring   
   disastrous consequences."   
      
   The verdicts from the Fifth Circuit, long considered the most conservative   
   appellate court in the nation, reflect what is an emerging bipartisan   
   consensus against qualified immunity. Qualified immunity creates breathing   
   room for the sort of split-second decision that might have stopped   
   Uvalde—but it does so by making it difficult to sue police officers,   
   including those who use excessive force.   
      
   As Black Lives Matter has drawn attention to cases of police misconduct, a   
   growing chorus of liberals and libertarians has argued the trade-off isn’t   
   worth it. The New York Times in 2021 called for an end to what it termed   
   the "doctrine that enables police brutality," while a 2020 report from the   
   Cato Institute dubbed qualified immunity a "moral failure." Faced with   
   demands to defund the police, moderate Democrats have framed qualified   
   immunity as a more productive punching bag, proposing legislation to   
   curtail or eliminate it.   
      
   The Fifth Circuit dissents—and the brutal school shooting they   
   prefigured—highlight the risks of such proposals, especially as police   
   departments hemorrhage officers in the wake of George Floyd.   
      
   Unfounded lawsuits can have "devastating costs," Judge Edith Jones said in   
   a 2019 dissent, including "the deterrence of able people from going into   
   public service, and the danger that fear of being sued will discourage   
   officials from vigorously performing their jobs." Those costs are   
   "particularly stark today," Ho said in a separate dissent, "given   
   widespread news of low officer morale and shortages in officer   
   recruitment."   
      
   Police shortages have increased 911 response times in several   
   cities—including Dallas and Austin—amid a nationwide spike in violent   
   crime. The shortages also come amid a 20-year high in the number of active   
   shooter incidents, according to data from the Federal Bureau of   
   Investigation.   
      
   It is difficult to know how much court verdicts affect an officer’s   
   decision to use force. Some research finds that cops know relatively   
   little about qualified immunity and make split-second decisions based on   
   instinct alone. But even if police aren’t thinking about appellate court   
   precedents when they zero in on a suspect, said Rafael Mangual, a policing   
   scholar at the Manhattan Institute, lawsuits can still diminish morale and   
   encourage officers to be less aggressive in the field.   
      
   "Police feel like they won’t get a fair look if they get in trouble,"   
   Mangual said.   
      
   In theory, qualified immunity is an exacting standard. To sue an officer   
   for excessive force, plaintiffs must show that the officer’s conduct was   
   "objectively unreasonable" and violated "clearly established law," in part   
   by finding an earlier case with a near-identical fact pattern in which the   
   court ruled for the plaintiff. "Reasonableness," the Supreme Court has   
   said, "must be judged from the perspective of a reasonable officer on the   
   scene, rather than with the 20/20 vision of hindsight."   
      
   Some lower courts have made that standard extremely forgiving for cops:   
   The Sixth Circuit, for example, gave immunity to an officer who sicced a   
   dog on a suspect after he’d already surrendered. But other courts have   
   been less lenient, sending officers to trial for shooting suspects who   
   seemed seconds away from violence.   
      
   Enter the Fifth Circuit. Though some commentators have painted it as   
   aggressively pro-cop, the court has been fairly stingy about granting   
   qualified immunity—even after the Supreme Court rebuked it in 2015 for   
   second-guessing the police.   
      
   That rebuke came in the case of Mullenix v. Luna, which involved a high-   
   speed car chase with an armed suspect who had repeatedly threatened to   
   shoot the officers pursuing him. The suspect was approaching an overpass   
   where an officer was laying down spike traps, meaning he would be exposed   
   to gunfire from the car’s window. With seconds to go before the suspect   
   encountered his colleague, another officer, Chadrin Mullenix, fired at the   
   car’s radiator from atop the overpass, hoping to disable the engine block.   
   He missed and killed the suspect instead.   
      
   The Fifth Circuit denied the officer’s request for qualified immunity,   
   saying he had not acted "objectively reasonably." The Supreme Court said   
   otherwise, overruling the Fifth Circuit. "Qualified immunity protects   
      
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