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Winzer v. Kaufman County

United States Court of Appeals, Fifth Circuit

October 21, 2019

EUNICE J. WINZER, Individually and on behalf of the statutory beneficiaries of Gabriel A. Winzer; SOHELIA WINZER; HENRY WINZER, Plaintiffs - Appellants
v.
KAUFMAN COUNTY; BILL CUELLAR; GARRY HUDDLESTON; MATTHEW HINDS, Defendants - Appellees HENRY ANDREE WINZER, also known as Henry A. Winzer, Plaintiff - Appellant
v.
MATTHEW HINDS, Individually and in his capacity as member of Kaufman County Sheriff Department; UNKNOWN STATE TROOPERS, Individually and in their capacity as member of Texas Department of Public Safety; UNKNOWN PARAMEDICS, Individually and in their capacity as emergency responders of the East Texas EMS; SERGEANT FORREST FRIESEN, Defendants - Appellees

          Appeals from the United States District Court for the Northern District of Texas

          Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

         ON PETITION FOR REHEARING EN BANC

          PER CURIAM

         Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

         In the poll, 6 judges vote in favor of rehearing en banc, and 10 vote against. Voting in favor are Judges Smith, Elrod, Southwick, Ho, Engelhardt, and Oldham. Voting against are Chief Judge Owen, Jones, Stewart, Dennis, Haynes, Graves, Higginson, Costa, Willett, and Duncan.

          James E. Graves, Jr. United States Circuit Judge

          JERRY E. SMITH, Circuit Judge, dissenting from the denial of rehearing en banc:

         "E pur si muove." Galileo, 1633.

         "Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace officers with only a few seconds to react to dangerous confrontations with threatening and well-armed potential killers . . . . [T]here is little chance that, any time soon, the Fifth Circuit will confer the qualified-immunity protection that heretofore-settled Supreme Court and Fifth Circuit caselaw requires." Cole v. Carson, 935 F.3d 444, 469 (5th Cir. 2019) (en banc) (Smith, J., dissenting).

         I respectfully dissent (again).

          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:

         If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them.

         The Fourth Amendment prohibits "unreasonable searches and seizures"-not reasonable efforts to protect citizens from active shooters. The panel opinion turns this principle on its head. As Judge Clement explained in her eloquent dissent, the majority opinion "undermines officers' ability to trust their judgment during those split seconds when they must decide whether to use lethal force." Winzer v. Kaufman County, 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting in part). "It instructs them, in that pivotal split second, to wait. But when a split second is all you have, waiting itself is a decision-one that ...


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