5th Circuit Appeals Court Applauds Itself For Properly Handling An Obvious Denial Of Immunity

The Fifth Circuit Appeals Court has a particularly antagonistic relationship with long-held constitutional rights. It is, without argument, the most cop-friendly circuit in the nation — one that has managed to surpass even the generous immunity-or-else guidelines set down by the Supreme Court often enough that the nation’s top court has had to roll back rulings from this set of circuit judges.

The addition of Judge Don Willett, while welcome, has done little more than slightly increase the number of fiery dissents. Otherwise, it’s been business as usual, with the Fifth Circuit playing the fool for legislators and bad cops alike, limiting citizens’ rights while giving the government more power… and more ways to get away with unconstitutional fuckery.

So, this decision [PDF], while still entertaining (and then slightly horrific), is little more than a court congratulating itself for doing the job it’s expected to do, rather than the job it has always done. (h/t Volokh Conspiracy)

A little backstory on the case: Texas resident Austin Hughes is a former cop and current (at least when this incident happened) Uber driver. Having witnessed some apparent drunk driving, Hughes decided to follow the driver and perform a citizen’s arrest while waiting for law enforcement officers to finish off the job with a non-citizen’s arrest.

Former cops likely understand the intricacies of citizen’s arrests far better than citizens themselves, who rarely perform these acts of public service — acts that definitely aren’t covered by the extra rights afforded to actual law enforcement officers. Austin Hughes knew what to do and what steps to take to ensure law enforcement could very smoothly take over the arrest job once they arrived at the scene.

But none of that happened. Yes, some officers showed up but they decided the clearly drunk person was the most trustworthy party and arrested Hughes for the crime of… taking a drunk driver off the road. (Bold emphasis mine. Underlined emphasis is the court’s.)

When [Houston Police Department] Officers Michael Garcia and Joshua Few arrived on the scene (roughly 17 minutes after Hughes’s initial 911 call), they re-handcuffed the drunk driver and asked Hughes to meet them at a nearby gas station so they could take his statement. At the gas station, Officer Garcia interviewed the drunk driver while Officer Few interviewed Hughes. Hughes recounted his observations of the pickup truck’s erratic movements, the driver’s multiple collisions with the median and concrete barrier, and his assessment of the driver’s intoxication. Hughes also told Few “he used to be a police officer.” When Garcia finished taking the drunk driver’s statement, he asked Hughes for his Uber passengers’ contact information. Hughes explained that Uber’s privacy policies prevented him from accessing that information. But he showed Garcia his Uber app, including the details of his most recent trip. Later, at Garcia’s request, Hughes emailed Garcia screenshots of his Uber trip details. Inexplicably, the officers did not arrest the drunk driver.

Few and Garcia then prepared an incident report. According to Hughes’s complaint, the report recounted the drunk driver’s statement to Garcia at the scene:

On 3-23-2019 I was at a flea market with Jesse and his friends (Uber drivers [sic] alias). Jesse said that we could go back to his place and that he lived on 59 south near downtown. I told Jesse that I lived on I10 and he said that he would take me home later. I said okay because I had been drinking on night [sic] and had more than 7 beers. I was too drunk to drive but I had a friend at the bar that could of [sic] taken me home. Jesse said let’s go to his house and he offered to drive so we went. Mid way [sic] during the trip I was not familiar with where I was at. I started to ask Jesse where he was taking me. I finally asked Jesse to just take me home and[ ]that is when he got mad. Jesse asked if I had something going on with his wife. I told Jesse no. Jesse then asked me what I got going on with his wife. I was confused and asked what he meant. Jesse said he knows there is something going on. Jesse stopped my truck on the freeway and got out of it. He came to my passenger side door and was trying to get me out of the car. I was confused at this point and only wanted to know what was going on. Jesse kept telling me I am fucked and how I was going to be deported. I was on the freeway so I could not just get away from Jesse. Finally Jesse told me to turn around and put my hands behind my back. When I did not do it fast enough Jesse kneed my legs to force me to comply. I asked Jesse why he was doing this and who gave him the right to do this. Jesse told me he was a police officer. Jesse then put me in handcuffs. My leg was hurting making it hard for me to stand and I had scratches on my wrists from him trying to handcuff me.

Somehow, this rambling statement involving an apparent domestic dispute, a flea market that was apparently still open until 2 am (in which you could acquire and consume “more than 7 beers”), and someone named “Jesse” handcuffing someone else (rather than “Austin,” which was the actual name of the former cop/current Uber driver who performed the citizen’s arrest) was treated as credible. Austin Hughes’ statement — delivered by a sober person with plenty of documentation that backed up his assertions about his recent Uber fare — was treated as criminally suspect, resulting in the two HPD officers arresting Hughes for “impersonating an officer.”

The lawsuit followed. The lower court denied qualified immunity to the officers. The Fifth Circuit Appeals Court affirms this ruling… far too smugly. Here’s the leadoff to the opinion, which can barely be heard above the sound of self-congratulatory applause (emphasis in the original):

For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up.

Austin Thompson Hughes is a Good Samaritan. After 2:30 a.m., Hughes called 911 to report a pickup truck swerving violently across a four-lane highway in Houston. While Hughes was on the phone with emergency dispatchers, the drunk driver crashed. Still on the phone with 911, Hughes pulled behind the drunk driver and effectuated a citizen’s arrest in accordance with Texas law. But when police officers arrived at the scene, they let the drunk driver go and then arrested Good Samaritan Hughes. (Seriously.) Piling insanity on irrationality, the officers then charged Hughes with a felony for impersonating a peace officer. Hughes spent thousands of dollars defending against the frivolous criminal charges before the City of Houston dropped them. Then Hughes brought this § 1983 suit against the two officers who victimized him. The district court denied qualified immunity. We affirm. (Obviously.)

Hey, the Fifth: we already know qualified immunity “can be invoked under absurd circumstances.” There’s nothing to “worry” about. I mean, it HAPPENED HERE. The problem isn’t the invocation. It’s the response to the invocation — a response that applies rules made repeatedly worse by the US Supreme Court and decides it applies to “absurd circumstances” because the circumstances are novel enough there’s no on-point case law to apply to it. When all the discussion has ended, courts (especially the Fifth Circuit Appeals Court) tend to grant immunity, rather than recognize a clear rights violation has occurred that cannot be wiped from the record with the invocation of qualified immunity.

The parentheticals are just as self-serving. This is a court coming to a very obvious conclusion but serving it up as an indication of its willingness to respect the Constitution more than cops who try to bypass it. Applauding your efforts in a case that clearly falls outside of even the Supreme Court’s mandated deference to law enforcement is just kind of gross. This part of a footnote on page 13 makes it clear exactly how easy it was to affirm the denial of qualified immunity in this case. And because it’s crystal clear, it’s more than a bit unseemly that the Fifth Circuit would open up its decision by putting its self-satisfaction front and center.

This case does not involve excessive force, or split-second decisions, or the chaos of a chase. Rather, it involves a simple, clearly established rule that all officers should know at all times under Franks and Winfrey: Do not lie.

Beyond the obviously correct conclusion (the denial of immunity), the only other thing the ruling gets right is its final conclusion: that it’s amazing the same government that decided the “impersonating an officer” charge was not supported by the evidence still felt it was worth fighting in court, including this failed appeal of the lower court’s decision:

It is unclear which part of this case is more amazing: (1) That officers refused to charge a severely intoxicated driver and instead brought felony charges against the Good Samaritan who intervened to protect Houstonians; or (2) that the City of Houston continues to defend its officers’ conduct.

When you’re backing a case that is so obviously a loser even the Fifth Circuit feels comfortable taking pot shots at it, you should probably quit while you’re behind. The city should have written a check to Austin Hughes the moment he filed his lawsuit. At the very latest, it should have done it after receiving the lower court’s denial of qualified immunity. This case was a loser from the moment these two cops arrived on the scene. It should never have gotten this far. And it definitely shouldn’t have been used as an opportunity to gloat by a judicial circuit that gets these cases wrong far more often than it gets them right.