A species of indifference and anxiety which broods over the city

The drama of destruction draws to a close with the final catastrophe

Hello. Today Charles Star joins us to write about the case of a man in Texas who was threatening to set himself on fire so the cops tased him thereby instantly setting him on fire. Maybe they had somewhere to be and wanted to get it over with.

In February the U.S. Court of Appeals for the Fifth Circuit ruled that the cops had used reasonable force in setting the man on fire. I wrote about this in here before briefly.

“We have found that, given the horrendous scene that the officers were facing, involving the immediate potential for the destruction of lives and property, the force used—firing tasers—was not unreasonable or excessive, and consequently we hold that the officers did not violate the Fourth Amendment and are thus entitled to qualified immunity,” the court said in February.

Here’s what they said was basically fine:

“If we tase him, he is going to light on fire,” one of the cops said.

It was at about this point—whether before or after being sprayed is not entirely clear from the record—that Olivas doused himself in gasoline. [Officers] Guadarrama and Elliott, at least, and maybe Jefferson as well, noticed that Olivas was holding some object that appeared as though it might be a lighter. Guadarrama, followed in short succession by Jefferson, fired his taser at the gasoline-soaked man, causing him to burst into flames. Corporal Ray and Officer Scott arrived at the scene at about this time. When they entered the house, they found Olivas engulfed in flames. The fire spread from Olivas to the walls of the bedroom, and the house eventually burned to the ground. The officers at the scene were able to evacuate the family members who had remained in the house, but Olivas was badly burned and later died from his injuries.

The family sued for the wrongful death but the killing was clean the court said. You get nothing they said.

They recently upheld that decision again.

For a more informed opinion than “this is fucking horrific dog shit” I asked Hell World Senior Legal Analyst Charles Star — basically our Jeffrey Toobin in all ways — to explain what happened. Scroll down to read it below or click here to jump to it directly.

For previous discussions with Star about some egregious abuses of qualified immunity go here or here or for an interview with Matthew Segal a civil rights lawyer in Massachusetts about the same go here.

First some of my trademark meandering nonsense. Thank you for reading. Please consider a subscription to support this newsletter if you can.

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No one knocks on our door and so when someone does I assume something must be wrong like how it used to be getting a call in the middle of the night before you could silence phones yet here was the neighbor presenting a fresh baked loaf of bread she was holding in her hands like a loaf of bread. I baked some bread for you guys she said and I said oh thank you. There’s a hornet nest on your porch she said and I said oh thank you. It was nearly 100 degrees out and I wasn’t sure why she was baking bread on this day of all days but that didn’t stop me from eating it later when she wasn’t looking.

When one of us would fumble the football in practice the coach would say don’t hold it like a loaf of bread and none of us ever knew exactly what that meant. Coaches love to say stupid shit that doesn’t mean anything but for the intensity with which they’re saying it. Hold onto it so tightly you don’t care if you damage it I think was the point. Unlike footballs loaves of bread are meant to be handled lovingly. Sticking out of the basket on your Parisian bicycle maybe. Coaches hate Parisian bicycles and everything that whole thing sort of calls to mind. Maybe the striped shirts remind them of referees. 

Hornets and other kinds of wasps construct their nests by chewing up wood in their little beaks and turning it into a papery pulp whereas people chew on an entire loaf of bread and turn it into regret. Some of the nests are underground but most are exposed like the pathetic one being built by one single hornet on my porch flying back and forth pasting his home to my home one mouthful at a time. I poked my head out the door and saw the hornet right above where I sit to smoke my little cigarettes and thought ah there it is that must be the famous hornet I had heard about earlier. Sometimes if a bug is buzzing round my head I’ll exhale smoke at him then feel bad because that stuff will kill you. 

When it gets cold a hornet nest will die but the queen stays hibernating inside alone thinking nothing and waiting to start all over again later on. Before that it all goes to complete shit though. 

“The tragedy of the wasps’ nest at the approach of the first chills of winter is the final fragment of an epic,” Georges Victor Legros writes in Fabre, Poet of Science. “At first there is a sort of uneasiness, ‘a species of indifference and anxiety which broods over the city;’ already it has a presentiment of coming misfortune, of an approaching catastrophe. Presently a wild excitement ensues; the foster-mothers, ‘frightened, fierce, and restless,’ as though suddenly attacked by an incomprehensible insanity, conceive an aversion for the young; ‘the neuters extirpate the larvae and drag them out of the nest,’ and the drama of destruction draws to a close with ‘the final catastrophe; the infirm and the dying are dismembered, eviscerated, dissected in a heap in the catacombs by maggots, woodlice, and centipedes.’ Finally the moth comes upon the scene, its larvae ‘attacking the dwelling itself; gnawing and destroying the joists and rafters, until all is reduced to a few pinches of dust and shreds of grey paper.’”  

That all sounds like what Republicans think will happen if school kids learn that slavery was real.

Speaking of cancel culture here’s a story from Utah:

A 19-year-old woman was charged with a hate crime after allegedly “stomping on a ‘Back the Blue’ sign” at a gas station in Panguitch.

According to the affidavit of probable cause, a Garfield County police officer was conducting a traffic stop for speeding at a gas station when the officer saw a woman “stomping on a ‘Back the Blue’ sign next to where the traffic stop was conducted, crumble it up in a destructive manner and throw it into a trash can all while smirking in an intimidating manner towards me.”

The cops charged her for being mean to their fascist flag with a “hate crime enhanced allegation” because of “the demeanor displayed by [the woman] in attempts to intimidate law enforcement while destroying a ‘Pro Law Enforcement’ sign.” Essentially she was racist against the protected minority of cops. She faces up to a year in prison. 

Meanwhile in Texas a man named Hervis Rogers who was something of a news sensation for waiting in line for six hours to vote on Super Tuesday (heartwarming!) was just arrested for two felony charges of illegal voting. He was held on $100,000 bail for some reason and now faces up to forty years in prison. Rogers had been convicted of burglary years ago and still had some time left on his parole before he could vote again apparently. It is unclear why if Rogers was engaged in subterfuge and voting fraud and not just misinformed about his current voting eligibility he would proudly boast to every camera in the room about how long he was waiting to vote. 

I just looked up “hornet” on Google and the first result is something called Hornet Gay Social Network which I thought was funny because hornets’ whole thing is basically a gay little social network. After that the questions people want to know about them are: Are hornets nests dangerous? How do you kill a hornets nest? Should I leave a hornets nest alone? and Are hornets good for anything? which I thought was kind of rude. 

Then I read that a wasp-waist is a women’s fashion silhouette that you get by cinching everything together real tight with a girdle to accentuate the hips and breasts. Apparently at some point a guy decided he wanted to fuck wasps or at least women who look like them and then women had to go around like that. 

I rode my bike over some altogether unrelated hornet nest far from here long before I knew how to hold the football one way or another. Like other wasps hornets release an attack pheromone when threatened or when on the attack against prey in a sort of synergistic effect. Vespine is the term that applies to wasps. It comes from Latin and is basically the type of dickheaded word a poet would use if they were trying to show off how sensitive to nature they are. Vulpine is another one of those words. The word synergy comes from the Greek term synergos which means to work together which they promptly did that time crawling up inside my tight little boy’s camouflage jacket that I thought would have made me invisible to imaginary enemies. 

Here’s something I wrote in here before:

Sometimes I try to think about how to most succinctly explain what Hell World is in a sentence like what is the singular demonstrative Hell World story. I’ve said before it was the time that Richard Sackler was granted a patent for a drug that could ease opiate addiction and other times I think it’s the thing about people begging not to be taken on an ambulance when they’re hurt because they can’t afford it. Maybe it’s when you see a cheery story in the local news about a girl scout selling lemonade to help pay for her mommy’s leukemia. But this fire thing is a pretty good contender. Inmates being paid slave wages to battle the ravages of climate change then being denied the opportunity to work in that field once they’re released is pretty close to the ideal.

Fuck all of that though because here’s the new winner which also conveniently happens to describe synergy in the Business Mind sense or what you might call Vertical Integration:

US cigarette giant Philip Morris said Friday that it has agreed to buy Vectura, a UK company making breathing inhalers, as part of a push into healthcare.

Philip Morris said Friday's move was part of its expansion “beyond tobacco and nicotine” and into “a broader healthcare and wellness company.”

Is this true? 

Watch this if you haven’t yet 

This is the type of shit they include in a sci-fi movie to show how fucked up and sociopathic entertainment in the future is. The “I'd buy that for a dollar guy” saw this and was like come on lady.

Around the same time the hornets got me but not the same day because that would have been a bit much the neighbor’s dog bit me almost right on my dick and balls but it was a near miss. It was always a nice dog before that but I guess it had gotten old and was lashing out and its instincts were overriding its socialization. I remember my grandfather becoming very angry out of nowhere at times toward the end of his whole deal which was scary because he was never cross with anyone. He hardly did anything at all as far as I knew besides sit there and tremble. Toward the beginning of the end there he was a janitor at the local high school and I remember hearing that the kids would harass him because he was so slow and his hands shook so much. I think I mentioned that before and how I wanted to go back and find those kids and shove hornets into their jackets and I still do. 

A thing my mom likes to say to me is about the time I found a dead mouse in the yard when I was young and it was a whole thing for my little brain like this existential crisis and I cried over the mouse like it was my dead son or something. They killed my boy. I think she likes to tell it because it reminds her of when I was sensitive and stupid instead of an asshole and stupid like I am now. 

Did you know a hornet can sting you just about as many times as it wants without dying unlike a honey bee who only gets the one shot? 

So I asked Michelle where the can of poison was — no check in the other cabinet — and I went out and looked at the nest and there was the one guy laboring hard (minimum wage no benefits) and I pointed my awful spray gun at him like a Pinkerton and I noticed there was a large spider building a web in the general vicinity and I wondered which of them was waiting for the other to fuck up first. 

Adult wasps only eat flowers or whatever they don’t eat bug meat but their babies do so they have to go out and sting a spider or a cricket or some other poor son of a bitch in exactly the right nerve ending or joint or what have you so it doesn’t die instantly and then bring it back to the nest and lay an egg inside of it and then the larvae eat it very slowly and methodically piece by piece so it stays alive as long as possible. Remember that vignette from The Road where the guy comes across the cannibal cellar and everyone is inside there still alive with their legs chopped off and shit? That was just about one of the worst things I’d ever heard about. Nobody liked reading about that shit. 

“But the wound is not mortal; not only does the insect continue to live, but it has acquired the strange prerogative of being able to live for a very long period without taking any nourishment, thanks precisely to the condition of immobility, in some sort vegetative, which paralysis confers upon it. When the hour strikes the hungry larva will find its favourite meat served to its liking; and it will attack this defenceless prey with all the circumspection of a refined eater; ‘with an exquisitely delicate art, nibbling the viscera of its victim little by little, with an infallible method; the less essential parts first of all, and only in the last instance those which are necessary to life. Here then is an incomprehensible spectacle; the spectacle of an animal which, eaten alive, mouthful by mouthful, during nearly a fortnight, is hollowed out, grows less and less, and finally collapses,’ while retaining to the end its succulence and its freshness.” 

I get that nature is grand and beautiful and all but I feel like this guy above is taking a little too much pleasure in the whole thing right? Bug pervert.

I just read that in California alone there are 44,241 people “being held in a county jail without being convicted or sentenced for a crime.” 

“At least 1,317 people have been waiting in county jails for more than 3 years. For 332 of them, it’s been longer than 5 years.”

At the same time you have to admit it would be terrible for children to learn about the true nature of this country. They might end up motivated to do something to change it. 

It’s pouring rain right now and so I just went to check in on the basement because the other day it was torrential storms for hours and the stupid thing flooded. Michelle was down there with the shopvac and I thought ah that looks fun so I took over for a while and it was fun for about five whole minutes before it started to fucking suck. After we filled the bucket we each grabbed a side and started carrying it up through the bulkhead where a thousand spiders live and almost immediately dropped it spilling all of the water right back onto the floor which I understood would have been hilarious to watch happen to someone else but not so much to me. 

I went back to work with the vacuum thinking the last thing I need right now is for my basement to become a metaphor for anything. It was pretty bad not going to lie the water was seeping up through the stone with no obvious source like the house was bleeding it looked like a fucking Koji Suzuki story down there. Under one pole that holds the too low ceiling up (?) there was an especially bad gusher and I pointed the vacuum at it like a surgical assistant and it sucked and sucked and I just could not drain the thing it was like a weeping wound it was like trying to vacuum the ocean but I was determined to beat it I became sort of maniacal about it to be honest like a man bailing his sinking boat out because the alternative is the water taking over everything.  

Eventually the rain stopped and the floor sort of dried up on its own for the most part so I guess the lesson is everything will work itself out if you pretend it isn’t happening.

I saw the Mall of Louisiana was trending the other day and I thought ah fuck and then I clicked on it and it turned out it was only because a python was on the loose and I let out a sigh of relief because at least it was only a twelve foot long monster not a guy. The lady at the zoo there said Cara the python was non-venomous and quite friendly so that’s a relief but that’s also what they said about the dick-biting dog so who knows. Around then we were visiting family and I went for a run near where the old Hanover mall used to be and they’re in the process of tearing it down and building a newer mall that people will feel less sad about shopping in on the very same spot. The old movie theater with its out of fashion signage font is closed too with a pile of a rubble in front of it and I thought about for the first time in forever how that was where I went on my first junior high date although the girl whose name I no longer remember never showed up and so I sat there and watched the first Batman movie all alone feeling like it was the end of the world then waited for my mommy to come pick me up. 

Batman was still pretty cool though. It would have had to have been a pretty amazing girl to erase that. 

So I shot the shit out of the one hornet with the poison — solidarity, but — and then I felt weird about not killing the spider too because who am I to play a capricious god and once you start killing it’s easy to just keep going and the spider fell and sort of just laid there and the hornet took off and flew as far as he could go wherever he was going to go while he still could. 

When the hornets were attacking me decades ago I fell off my bike and ran back to my mother and she told me to take the jacket off. Take the jacket off she yelled at me but I didn’t I decided to roll around on the ground like I was on fire which I sort of was. Stop drop and roll would have been one of the only things they taught us about not dying at that point in history. They didn’t even teach kids how to hide from gunmen yet when I was young that wasn’t until later. It didn’t work though so I took off running to nowhere in particular just away but it didn’t really matter because I was carrying them along inside with me wherever I went.

If we tase him he is going to light on fire

by Charles Star

You may have read about a case out of Texas called Ramirez v. Guadarrama. You might know it better as “the one where judges signed off on cops setting a guy on fire.” I’ve complained about qualified immunity for Hell World before, but Ramirez is a new horizon in the discourse. Here the Fifth Circuit decided that setting a guy on fire wasn’t merely excusable in the typical way police are given broad allowances to cause harm, it was actually, they said, the correct decision.

There are times, it appears, when a man simply has to be set on fire. It doesn’t seem like that should be the case, but then again I’m not a federal appeals court judge so who am I to say? 

To back up a bit to 2017, the cops were admittedly in a pickle. The victim, Gabriel Olivas, was suicidal. He had poured gasoline on himself and around the house and he was threatening to set himself on fire. Olivas getting set on fire is the one thing that everyone was trying to prevent. To stop him from setting himself on fire, you’d have to subdue him. It’s possible, but not certain, that the only way to subdue him was to tase him. Here’s the problem, though: if you tase him, you will set him on fire. So, like I said, a pickle.

In a hypothetical case, it’s possible that the officers didn’t know that a man covered in gasoline would ignite if you tased him, in which case I think any court would grant the officers qualified immunity. They had to make a split decision, with lives at stake, and courts give that kind of thing a wide berth. There were two important things to consider here though. First, the officers had recently attended a training session where they were told that if you tase a guy covered in gasoline he’ll catch on fire. Second, and even more important, one of the officers on the scene literally warned his colleagues that if they tased him they would set him on fire. 

Two officers then tased Olivas. The gasoline ignited, setting Olivas and then the house on fire. Olivas later died of his injuries at the hospital and the house burned to the ground.

The first judge to review the case, brought by his family and estate in the Northern District of Texas, declined to dismiss it before discovery. Depositions hadn’t been taken and expert witnesses hadn’t reviewed the facts, and so it was too soon, in the judge’s opinion, to evaluate the officers’ actions. 

A three-judge panel on the Fifth Circuit Court of Appeals reversed that unanimously. The panel couldn’t conceive of an alternate path for the officers to have taken, and the plaintiffs didn’t seem to offer one, so it was decided that setting Olivas on fire was reasonable under the circumstances. Olivas’ family provided cases where courts found the use of a taser was excessive, but the panel declined to even consider them “given the degree of granularity involved in the qualified immunity analysis.” In other words, unless a court has identified an incredibly specific manner of excessive force, this court won’t reason by analogy. (This type of analysis is coming under increasing scrutiny, including from the Supreme Court, but we’re not there yet.) The one case the panel did consider -- tasing a fleeing minor because the cops argued “she might run into traffic” -- didn’t apply, they said, because the risk was more speculative and the underlying crime less serious. Easy peasy, there’s no precedent.

As for the police officers’ precedent, they produced cases where courts approved the shooting of suicidal suspects who threatened others or the officers. Olivas’ family pointed to cases holding that shooting someone who is threatening only themselves is unreasonable. The Court reconciled these cases by pointing out that Olivas was threatening a specific manner of suicide that put everyone else at risk. In the abstract, as case synthesis goes, I don’t think that this is particularly egregious. It’s here, though, that I part ways with the Court. 

After going through the cases, and reviewing everyone’s conduct, the Court, at an early stage of litigation, demanded that the plaintiff provide an alternate course of action for the officers. In the absence of an alternative, the police were excused from causing the one thing they didn’t want to happen. So even though the police set Olivas on fire and burned down the house in order to keep Olivas from setting himself on fire and burning down the house, the Court’s response was “well, SOMEONE was going to set him on fire and burn down the house, so...”

Judge Don Willett, also of the Fifth Circuit, wasn’t pleased. Like the District Court judge, he felt that before any discovery was taken it was too soon to make any judgment about the officers’ behavior. He asked the full court to review the case en banc -- basically, to give the plaintiff one more chance to convince the full appeals court that the three-judge panel was wrong before appealing to the Supreme Court. Of the 17 judges on the Fifth Circuit, 13 judges said no. And one of the judges only wanted to hear the case to make it extra clear that the original appeals panel got it right. Also, they took turns calling Judge Willett a histrionic woke-lord and spent much of their opinions saying that he was, essentially, a pussy and a liar.

Being called a woke-lord was probably something of a surprise for Judge Willett because before joining the federal bench he was a modest Twitter sensation for being a libertarian justice on the Texas Supreme Court who liked to post memes and make dad jokes but also was, I repeat, a libertarian. Judge Willett thought of it as a fairly straightforward case about civil procedure -- the rules about how cases wind through the system -- whereas his colleagues thought it was a case about Cops Making Split Second Decisions. 

To Willett it was simple: before any discovery is taken, it’s premature to dismiss the plaintiffs’ case. They should be given the opportunity to take depositions, obtain police records, hire experts to analyze the information that they collect, and present a complete argument about what they already suspect is true on its face: it was unreasonable to destroy the village to save it.

To the other judges, though, all that mattered is that the police were put in a difficult situation and resolved it, in a fashion. End of story. In fact, they are so certain, they take pages to spell out the part that Willett concedes: Olivas was suicidal, had a lighter, was threatening to use it. Willett even concedes that after discovery the Court might agree that there was no alternative. His main complaint is about timing, not result. I apologize for this, but to get to the next part I need to give a quick summary of what lawyers call “pleading standards.”

As a reaction to the olde days, where pleading was a trap for people who didn’t know all of the arcane rules of court, modern notice pleading generally requires only a “short and plain statement of the claim.” The simplest way to put it is that to sue someone your Complaint has to include why the court can hear the case (jurisdiction), why you are suing (claim) and what you want the Court to do (remedy). There are exceptions. Fraud, especially securities fraud, for example, requires more specificity. In addition, over the last 15 years or so, the Supreme Court has been tweaking the liberal pleading standards in federal court to require more information up front. First, in Bell Atlantic v Twombly, SCOTUS said that the pleading had to include enough facts for it to be plausible that the claim was correct and provable through discovery, rather than that the allegations make the claim conceivable. Second, in Ashcroft v Iqbal, SCOTUS expanded the rule beyond antitrust and used it to knock back a claim that Attorney General John Ashcroft and director of the FBI (Robert Mueller, Forrest-Gumping through history) had established the policies that led to his improper post-9/11 detention and abuse. The dissent pointed out, to no avail, that Iqbal made factual allegations but needed discovery to prove them, so these pleading standards were unfair, but that’s where the law stands now: kind of confusing about exactly when you have to provide notice and when you have to give more.

Back to Olivas. The argument of the complaint was essentially “you can’t set a guy on fire and burn his house down to stop him from setting himself on fire and burning down his house, QED.” The panel argued that this wasn’t enough. Even before discovery, if you don’t have an alternate path for the officers, you can’t take discovery to find that alternative. For this proposition the panel cited… nothing. It’s just how they resolved the case. It was, in their eyes, reasonable under the exigent circumstances and that was enough.

At a certain level, this is in line with the fundamental premise of qualified immunity (or, in the First Amendment context, anti-SLAPP laws): discovery is very expensive, and if you allow it, it encourages settlement, and if the defendant is likely to settle, you’ll get more of those cases filed. What it isn’t in line with is any of the pleading standard cases, unless you cram it in. “An alternate way of disarming a suicidal man” is not a fact you should be expected to plead at the outset. 

This is basically where the first two stages went: a district court judge said the plaintiff can have more time; the appeals panel said “not without a plausible alternative for the cops.” That division repeated itself at the Fifth Circuit. Judge Willett agreed with the district court judge and asked his colleagues, collectively, to rehear the case. First, because the case was being dismissed before discovery, and second, because it was obvious to him that intentionally setting a guy on fire before he could set himself on fire was obviously at least plausibly improper, and the Supreme Court had issued two opinions in the last year telling the Fifth Circuit to stop dismissing cases with obvious improper conduct by the police. To Willett this meant “in cases with particularly egregious facts, courts must not strain to absolve constitutional violations.” Only two of his colleagues agreed to rehear the case. (Well, technically three, but Judge Smith only agreed to rehear because he wanted to use this case to overturn Cole v Carson, a different case that didn’t give the officers immunity.)

The other 13 judges not only did not agree to rehear the case, Judge Jolly said Willett’s opinion “emotes; it does not reason” and called it “purple prose.” Judge Ho snarkily cited Willett’s own dissent from Cole v Carson by way of explaining that Willett is all over the place. Judge Oldham decided on his own that, well, actually the plaintiffs did suggest tackling Olivas, and also suggested that the officers should have stalled until the crisis negotiation team arrived … but then dismissed both as obviously worse options that don’t count, and chided Willett for not citing the proposed reasons at all. This last one sticks in my craw. 

One opinion after another makes clear that it was the plaintiffs’ obligation to provide an alternative for the police. It’s the fundamental point that all of the judge’s make: you can’t say the police acted improperly if you can’t even propose an alternative. But the judges also admit that the plaintiffs did propose alternatives and then shrugged any potential ones off as obviously bad. In other words, they are a mirror image of the error that they think Willett is making. 

Willett instinctively believes that setting Olivas on fire was outrageous; the other judges consider the alternatives self-evidently fruitless. Only one side, though, thinks that instincts are enough to decide the case. It’s the same side that instinctively and intentionally set a man on fire. That’s no way to run a legal system.

Charles Star is a Brooklyn-based lawyer and the host of Hostile Witness, a podcast about law at the end of the world. He will guest on your podcast and tweet about it at @Ugarles

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