EUNICE J. WINZER, Individually and on behalf of the statutory beneficiaries of Gabriel A. Winzer; SOHELIA WINZER; HENRY WINZER, Plaintiffs - Appellants
KAUFMAN COUNTY; BILL CUELLAR; GARRY HUDDLESTON; MATTHEW HINDS, Defendants - Appellees HENRY ANDREE WINZER, also known as Henry A. Winzer, Plaintiff - Appellant
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
DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PETITION FOR REHEARING EN BANC
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.
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.
E. Graves, Jr. United States Circuit Judge
E. SMITH, Circuit Judge, dissenting from the denial of
rehearing en banc:
pur si muove." Galileo, 1633.
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.,
respectfully dissent (again).
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:
want to stop mass shootings, we should stop punishing police
officers who put their lives on the line to prevent them.
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 ...