A Cop Was Indicted for Homicide After Shooting a Fleeing Driver. He Still Got Qualified Immunity.

Bau Tran is currently in the state prison for criminally negligent murder after he killed a motorist trying to escape a traffic stop. The jury will determine if Tran, a police officer with the city of Arlington, Texas, should be sentenced for breaking into O’Shae’s car window and firing four shots at him after he was first pulled over by authorities for having an expired registration.

Tran will not have to face a jury in civil court, however, despite being sued by Terry’s family and Terrence Harmon, Terry’s passenger that day. Tran received qualified immunity for the civil lawsuit despite being charged criminally. If the rights in question were not clear at the time the misconduct occurred, this doctrine usually protects the government from any lawsuits.

Terry was stopped by another officer from the police department of the city in September 2018. He had seen his expired tag and pulled over Terry’s vehicle. Terry was told by that officer she smelled marijuana, and the car would have to be searched. Tran appeared shortly after, and stood by Terry’s passenger window. Harmon and Terry were asked to keep the windows down and the ignition on. Though Terry initially complied, he eventually reached for the ignition and tried to drive away, at which point Tran jumped on the car’s running board—the ledge under the door that helps riders board—and fired five shots into the vehicle, with four of them striking Terry. 

Tran’s story is an example of how unpredictable a standard qualifies immunity has been. The Supreme Court enacted it decades ago as a means to shield state actors from civil lawsuits. It protects those charged with homicide, but it is so common and narrow that it has been so routine. That police officers very rarely find themselves in Tran’s shoes—facing criminal charges for misconduct—speaks even further to the legal doctrine’s harebrained nature: Prosecutors typically opt not to bring charges, and when they do, juries often acquit. In criminal court, accountability is difficult to find. The civil realm is left open to question, as accountability can also be difficult. A barrier that prevents entry is qualified immunity.

However, the allegations are so grave that the state will proceed with the prosecution. Harmon will decide if Tran should be imprisoned. Terry’s estate will stillIt is not legal to inquire if any monetary damages may also be appropriate. 

“To defeat qualified immunity, it is necessary that the law be clearly stated. Each reasonable officer in this factual context—an officer holding onto the side of a fleeing car where the driver has ignored instructions to stop—would have known he could not use deadly force,” WriteU.S. Court of Appeals 5th Circuit judge Edith H. Jones. She affirmed that Tran’s and Terry’s decisions were not identical in any prior court decision.

Many would argue that Tran’s conduct met the requirements to override qualified immunity. The 5th Circuit stated that Tran pulled his right hand back and restrained it on his pistol as Terry was moving the car. Terry fired his fatal shots about a second after Terry had moved the vehicle forward. “One problem with the district court’s fine parsing of the factual details between this case and prior cases is that, to the extent the facts here differ…they differ in a manner that made Officer Tran’s use of deadly [force]Even LessReasonable WriteJay Schweikert (Cato Institute) in an AmicusSupporting the plaintiffs in a brief. (Prior the September Day, Tran had nine demerits on his misconduct record. The prosecution claimed it was an indication of Tran’s “bad personality.”

Cato also requested that Tran’s conduct be declared unconstitutional by the 5th Circuit. Although qualified immunity sometimes requires that an individual suing an officer furnish a prior court decision in the same case, the Supreme Court has held that lower courts may still analyze the case and decide the constitutional question. The result is a vicious circle where plaintiffs are asked to locate a complimentary decision which judges may decline to make if given the opportunity.

However, the 5th Circuit responded to this request in reverse. NotUnconstitutional. Jones stated, “Tran’s use force of death was reasonable under the circumstances” Jones added that Tran had the ability to reasonably capture Terry and cause him serious injury as a willing passenger. Ironically Tran’s choice to leap onto Terry’s vehicle and kill him put him in greater danger. Terry was already dying behind the wheel, while Tran fell off the vehicle. The body camera footage is available here. You can make your own decision. 

Derek Chauvin, a former Minneapolis police officer was convicted for the murder of George Floyd. I said that this was an important reminder to us about qualified immunity reform. This is not to say that the doctrine does not have anything to do criminal law. But it struck me that Chauvin could be convicted of murder—an exception to the rule—and still potentially skirt a civil suit filed by Floyd’s family if no prior precedent had “clearly established” that it’s unconstitutional for a cop to kneel on a man’s neck for nearly nine minutes. Floyd’s family was able to avoid that situation when the city decided to settle. But Terry’s family has to confront that hypothetical as reality: The 5th Circuit has barred them from facing off with Tran in civil court, even as the state seeks a guilty conviction for committing homicide.