As a gunman approached Robb Elementary School in Uvalde, Texas, one police
officer had an AR-15 trained on the suspect. Had he taken the shot, a
report from the Advanced Law Enforcement Rapid Response Training Center
concluded last week, 2 teachers and 19 children might still be alive.

Instead, the officer turned to his supervisor and requested permission to
engage. By the time he turned back around, the suspect was already inside
the school. Given the circumstances, the report argued, a "reasonable
officer" would have pulled the trigger.

But when cops in Texas have pulled the trigger under similar
circumstances, they�ve ended up in court. In at least three cases since
2014, the Fifth Circuit Court of Appeals sided against police officers who
made split-second decisions to shoot armed suspects�one of whom appeared
to be headed for a Texas high school. The court, which has jurisdiction
over the Lone Star State, denied several officers� requests for qualified
immunity, a legal defense that protects police from civil lawsuits.

It also sent an entire county to trial for the actions of its officers,
who were responding to an active shooter in a residential neighborhood. In
that case, Winzer v. Kaufman County, police shot a suspect who was
bicycling toward them with a gun.

"If we want to stop mass shootings," Fifth Circuit Judge James Ho wrote in
a blistering dissent in Winzer, "we should stop punishing police officers
who put their lives on the line to prevent them."

These cases form the legal backdrop to the worst school shooting in Texas
history, which unfolded as police waited more than an hour before entering
the fourth-grade classroom where a shooter had barricaded himself. It is
impossible to know what was going through the officers� heads as they
sanitized their hands and ignored parents� desperate pleas for them to
storm the school. But one thought may have crossed their minds: What will
happen to us if we make the wrong call?

The answer, judging from the Fifth Circuit�s jurisprudence, is that the
officers could go to trial. Each of the court�s verdicts against the
police drew scathing dissents from a handful of judges, who warned that
the rulings would encourage cops to hesitate in life-and-death situations.
Read in the aftermath of Uvalde, the dissents are eerily prescient.

"The majority opinion," Judge Edith Clement wrote in Winzer, "instructs
[officers], in that pivotal split second, to wait. But when a split second
is all you have, waiting itself is a decision�one that may bring
disastrous consequences."

The verdicts from the Fifth Circuit, long considered the most conservative
appellate court in the nation, reflect what is an emerging bipartisan
consensus against qualified immunity. Qualified immunity creates breathing
room for the sort of split-second decision that might have stopped
Uvalde�but it does so by making it difficult to sue police officers,
including those who use excessive force.

As Black Lives Matter has drawn attention to cases of police misconduct, a
growing chorus of liberals and libertarians has argued the trade-off isn�t
worth it. The New York Times in 2021 called for an end to what it termed
the "doctrine that enables police brutality," while a 2020 report from the
Cato Institute dubbed qualified immunity a "moral failure." Faced with
demands to defund the police, moderate Democrats have framed qualified
immunity as a more productive punching bag, proposing legislation to
curtail or eliminate it.

The Fifth Circuit dissents�and the brutal school shooting they
prefigured�highlight the risks of such proposals, especially as police
departments hemorrhage officers in the wake of George Floyd.

Unfounded lawsuits can have "devastating costs," Judge Edith Jones said in
a 2019 dissent, including "the deterrence of able people from going into
public service, and the danger that fear of being sued will discourage
officials from vigorously performing their jobs." Those costs are
"particularly stark today," Ho said in a separate dissent, "given
widespread news of low officer morale and shortages in officer
recruitment."

Police shortages have increased 911 response times in several
cities�including Dallas and Austin�amid a nationwide spike in violent
crime. The shortages also come amid a 20-year high in the number of active
shooter incidents, according to data from the Federal Bureau of
Investigation.

It is difficult to know how much court verdicts affect an officer�s
decision to use force. Some research finds that cops know relatively
little about qualified immunity and make split-second decisions based on
instinct alone. But even if police aren�t thinking about appellate court
precedents when they zero in on a suspect, said Rafael Mangual, a policing
scholar at the Manhattan Institute, lawsuits can still diminish morale and
encourage officers to be less aggressive in the field.

"Police feel like they won�t get a fair look if they get in trouble,"
Mangual said.

In theory, qualified immunity is an exacting standard. To sue an officer
for excessive force, plaintiffs must show that the officer�s conduct was
"objectively unreasonable" and violated "clearly established law," in part
by finding an earlier case with a near-identical fact pattern in which the
court ruled for the plaintiff. "Reasonableness," the Supreme Court has
said, "must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight."

Some lower courts have made that standard extremely forgiving for cops:
The Sixth Circuit, for example, gave immunity to an officer who sicced a
dog on a suspect after he�d already surrendered. But other courts have
been less lenient, sending officers to trial for shooting suspects who
seemed seconds away from violence.

Enter the Fifth Circuit. Though some commentators have painted it as
aggressively pro-cop, the court has been fairly stingy about granting
qualified immunity�even after the Supreme Court rebuked it in 2015 for
second-guessing the police.

That rebuke came in the case of Mullenix v. Luna, which involved a high-
speed car chase with an armed suspect who had repeatedly threatened to
shoot the officers pursuing him. The suspect was approaching an overpass
where an officer was laying down spike traps, meaning he would be exposed
to gunfire from the car�s window. With seconds to go before the suspect
encountered his colleague, another officer, Chadrin Mullenix, fired at the
car�s radiator from atop the overpass, hoping to disable the engine block.
He missed and killed the suspect instead.

The Fifth Circuit denied the officer�s request for qualified immunity,
saying he had not acted "objectively reasonably." The Supreme Court said
otherwise, overruling the Fifth Circuit. "Qualified immunity protects
actions in the �hazy border between excessive and acceptable force,�" the
Court�s opinion reads.

For officers in Texas, that protection was short-lived. In a pair of 2019
cases, Cole v. Carson and Winzer v. Kaufman County, the Fifth Circuit
sided against police who fired on armed suspects�both of whom appeared to
be on the verge of committing mass shootings.

Cole was a "red flag case if ever there was one," Judge Jerry Smith wrote.
The suspect, 17-year-old Ryan Cole, had just broken up with his girlfriend
and was walking in the direction of the high school she attended, a loaded
handgun pointed to his temple. He had stolen at least three weapons from
his parents� gun safe; had deposited a cache of ammunition at a friend�s
house; had threatened to kill himself and his girlfriend; and was in the
vicinity of both a high school and an elementary school, which officers
were protecting because of his threats.

When the police caught up to Cole and told him to drop his weapon, he
refused, began shouting obscenities at them, and fled into a nearby bush.
Some time later he emerged with his back to the officers and the gun to
his forehead before turning toward the police.

Before he could complete his turn, they fired. The Fifth Circuit sent the
officers to trial because Cole�s gun was not pointed directly at them, and
because they had not given him a warning in the brief moment before he
began turning around. "What �clearly established law� says that only a
rogue cop would have shot at this mentally disturbed teenager within 3 to
5 seconds as the teen emerged from dense bushes ten to twenty feet away,"
Jones wrote in her dissent. "Neither we nor the Supreme Court has ever
held that police officers confronted in close quarters with a suspect
armed and ready to shoot must hope they are faster on the draw and more
accurate."

Why has the Fifth Circuit�a "court stacked with far-right Trump goons," as
the progressive law professor Lisa Needham put it�been less gung-ho about
qualified immunity? Part of the answer may lie in its increasingly
libertarian composition. One Trump-appointed judge, Don Willet, is a hero
of the libertarian legal movement and an outspoken critic of qualified
immunity, which he has blamed for "untold constitutional violations."