       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                              Fifth Circuit

                                                              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.

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


              ON PETITION FOR REHEARING EN BANC
                                No. 16-11482
Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
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.


ENTERED FOR THE COURT:


/s/ James E. Graves, Jr.
_________________________________
James E. Graves, Jr.
United States Circuit Judge




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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).




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                                  No. 16-11482
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 may bring disastrous consequences.” Id. See also Cole v.
Carson, 935 F.3d 444, 470 n.3 (5th Cir. 2019) (en banc) (Smith, J., dissenting)
(same).
      Acknowledging that a vote against rehearing en banc need not signal
agreement with the panel majority, I respectfully dissent from the denial of
rehearing en banc.
                                      ***
      The district court set forth the disturbing events presented in this case.
“The undisputed facts show that, on April 27, 2013, two Kaufman County
Sheriff’s Office deputies, Gerardo Hinojosa and Defendant Matthew Hinds,
responded to several 9-1-1 reports of an armed man who was firing a gun and
destroying mailboxes in the vicinity of County Road 316 in Terrell, Texas. One
caller reported that the suspect had yelled, ‘Everyone’s going to get theirs,’ and
he wanted to ‘get back what’s mine.’ The police dispatcher relayed these
reports to responding officers.”      Winzer v. Kaufman County, 2016 WL

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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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                                      No. 16-11482
       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.




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