Winzer v. Kaufman County
Winzer v. Kaufman County
FILED
No. 16-11482 October 21, 2019
Lyle W. Cayce
Clerk
EUNICE J. WINZER, Individually and on behalf of the statutory
beneficiaries of Gabriel A. Winzer; SOHELIA WINZER; HENRY WINZER,
Plaintiffs - Appellants
v.
-------------------------------
Plaintiff - Appellant
v.
Defendants - Appellees
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JERRY E. SMITH, Circuit Judge, dissenting from the denial of rehearing
en banc:
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JAMES C. HO, Circuit Judge, joined by JERRY E. SMITH, EDITH BROWN
CLEMENT, and KURT D. ENGELHARDT, Circuit Judges, dissenting from
denial of rehearing en banc:
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11472367, at *1 (N.D. Tex. Aug. 10, 2016), rev’d in part, 916 F.3d 464 (5th Cir.
2019).
The record contains transcripts from several understandably panicked
9-1-1 callers.
According to one 9-1-1 caller: “He’s over there kicking people’s
mailboxes, he has a gun. It’s me and my mom and my baby. I don’t know who
he is, please hurry. . . . He’s out in the street. He’s kicking the next door
neighbor’s uh, mailbox but he was pointing the gun to our house. I don’t know
who he is . . . Please hurry. . . . Oh he’s outside shooting, oh my God.”
Another 9-1-1 caller stated: “Please get the cops here. Oh my God. Oh
my God. . . . [W]e see him kicking the mailbox and we open the door and he
pointed the gun toward our house. . . . I don’t know if he’s out there, I have no
idea, I’m not getting up.” Later in that same call, a background voice can be
heard, warning that “he’s coming back down the street.” The caller responds:
“Don’t open that door, Robin. He’s coming back down the street.”
Yet another 9-1-1 caller reported: “I had my kids outside earlier just a
little bit ago and he pointed that pistol in the yard and he said ‘I’m just trying
to get back what’s mine.’” The 9-1-1 operator confirmed that the shooter was
in fact pointing at the caller’s house. The caller further stated: “And he was
just out there hollering at my husband, he was standing on the front porch and
he saying he’s going to take back what’s his.”
Another 9-1-1 caller stated: “I’m calling to report some gunshots.
There’s a man walking up and down the street screaming and firing a gun.”
The district court explained what the officers found when they arrived
at the scene. “Hinojosa and Hinds arrived in marked patrol vehicles and
located a suspect near the intersection of County Road 316 and County Road
316A. The suspect was a black male wearing a brown shirt. The deputies
positioned their vehicles approximately 100 to 150 yards away. In their
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voluntary statements, the deputies wrote that the man fired one round in their
direction. Hinojosa and Hinds saw white smoke rise from the gun, and
Hinojosa heard a whizz go by. Hinds reported over the radio, ‘Shots fired.’ The
deputies did not return fire. The suspect then walked toward County Road
316A, out of the officers’ view.” Id. The panel opinion acknowledged that
neither officer returned fire at this time, for fear of hurting nearby civilians.
916 F.3d at 468.
The officers continued down County Road 316A and instructed people to
clear the area and return to their homes. 2016 WL 11472367, at *1. When
they found the armed gunman again, they identified themselves using their
car’s PA system and ordered him to drop his weapon. Instead, he “ducked into
the tree line and out of sight.” Id. The officers established a “defensive
position,” guns drawn and using police vehicles for cover. 916 F.3d at 468.
A few minutes later, Gabriel Winzer suddenly emerged from behind a
house and biked towards the officers from approximately 100 yards away. One
officer yelled out that Winzer had a gun. Another ordered Winzer to put the
gun down. Six seconds later, one of the officers fired at Winzer. Shortly after,
the other officers also fired. Winzer turned his bicycle away from the officers
and disappeared from view.
Minutes later, the officers located Winzer in the backyard of a house
(later determined to be the home of Winzer’s father, Henry). The officers
discovered that Winzer had suffered four gunshot wounds to his chest,
shoulder, and upper back, and his father was nearby trying to comfort and
revive him. The officers attempted to place handcuffs on Winzer’s wrists, but
he resisted. So the officers tased him. Once they succeeded in handcuffing
him, the officers permitted the paramedics to enter the backyard. The
paramedics pronounced Winzer dead at the scene. Id. at 468–69; 2016 WL
11472367, at *1–2.
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The panel majority suggests that Winzer might not have been the
suspect. 916 F.3d at 468 & n.1. But as the district court noted, a forensic
report later detected the presence of gunshot residue on Winzer’s body. 2016
WL 11472367, at *2. And the officers found multiple weapons in the home—
four lightly modified Bushmaster rifles, a Ruger Super Blackhawk revolver, a
Taurus Model 669 revolver, a Remington Model 870 Magnum shotgun, and a
Bryco Model 38 pistol—as well as multiple boxes of ammunition and several
expended cartridges. 1
***
It is unknown how many lives were saved by these deputies on April 27,
2013. What is known, however, is that Kaufman County will now stand trial
for their potentially life-saving actions—and that its taxpayers, including those
who will forever be traumatized by Winzer’s acts of terror, will pick up the tab
for any judgment.
I have deep concerns about the message this decision, and others like it,
sends to the men and women who swear an oath to protect our lives and
communities. For make no mistake, that message is this: See something, do
nothing.
What’s more, we have no business—no factual basis in the record, and
no legal basis under the Fourth Amendment—second-guessing split-second
decisions by police officers from the safety of our chambers. To quote Judge
Clement again, “we judges—mercifully—never face that split second. Indeed,
1 Courts analyze the actions of law enforcement officers for qualified immunity
purposes based on the facts and reasonable beliefs they possess at the time they act. Other
factors not known to them at that moment—whether facts existing at the time of their action
or subsequently discovered, for better or worse—cannot later justify their actions, nor strip
them of qualified immunity they otherwise enjoy. See, e.g., Cole, 935 F.3d at 456 (“we
consider only what the officers knew at the time of their challenged conduct”) (collecting
cases). Here, nothing in the record suggests who else (if not Winzer) might have been the
shooter who terrorized the innocent citizens of Kaufman County that day.
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we never have to decide anything without deliberation—let alone whether we
must end one person’s life to preserve our own or the lives of those around us.”
Winzer, 916 F.3d at 482 (5th Cir. 2019) (Clement, J., dissenting in part). “The
majority opinion, written from the comfort of courthouse chambers, ignores”
this reality. Id. See also Cole, 935 F.3d at 476 (Ho & Oldham, JJ., dissenting)
(“No member of this court has stared down a fleeing felon on the interstate or
confronted a mentally disturbed teenager who is brandishing a loaded gun
near his school. . . . [We have] no basis for sneering at cops on the beat from
the safety of our chambers.”).
I respectfully dissent from the denial of rehearing en banc.