Ronald Smith is seen sitting on the ground while a sheriff’s deputy points a gun at him (WXAN).
Two police officers are asking the nation’s most conservative appeals court to grant them immunity from an excessive force lawsuit filed by a man they shot in the head with pepper bullets while he sat cross-legged on the ground on a patch of grass outside a Texas cemetery.
The entire incident was caught on body camera video, but the officers insist their actions were reasonable and protected by law.
Law&Crime spoke at length with Andres Cano, the attorney for Ronald Smith.
Cano said that his client was an avid exerciser who, during the COVID-19 pandemic, liked to go out into the countryside for several hours at a stretch to work out and clear his head. According to Cano’s recent filing, on June 27, 2021, Smith had been exercising along a grass easement bordering Highway 46 in Guadalupe County, Texas, when a police officer in an official car “veered off the road and almost clipped [him].”
Smith, Cano said, gave the officer a “one finger salute” — otherwise known as raising his middle finger — in response, then went about exercising without concern. However, Cano said Smith noticed that afterward, the officer passed him multiple times in his police cruiser. Smith later sat down on a grass embankment in front of a cemetery to call his wife for a ride home when, according to Smith’s brief, he “observed 2 portly Peace Officers approaching him with guns drawn and pointed at him.”
The deputies — Guadalupe County Sheriff Deputies Hunter Saenz and Jimmy Gonzales — allegedly “menaced Smith with pointed firearms, struck Smith with a pepper round in the head, football smashed Smith on the ground, and leaped on his back with their knees on his neck and head,” all while Smith sat cross-legged on the ground with one hand in the air and the other working his cellphone.
Cano told Law&Crime that when Smith saw the officers approach him with guns drawn, he called 911 dispatchers on his cellphone.
“I have two people pulling a gun on me,” Smith can be seen yelling in the video. The officers then switched to pepper guns, and one shot Smith in the head with pepper balls.
Cano described what happened after the shooting as a “comedy of errors.”
First, Gonzalez put his knee on Smith’s head in a way the complaint says was similar to the technique used by a police officer on George Floyd just months earlier. Then, Gonzalez “twisted and constrained” Smith before leaving him there “like a sack of potatoes,” the attorney said.
Then, Cano said, after a supervising officer arrived, the police began interviewing nearby property owners in an unsuccessful effort to convince them to press trespassing charges against Smith. Finally, he said, officers talked among themselves to try and find some offense for which to charge Smith.
Cano said that his client had initially been charged with evading arrest on foot, but the charges were dropped and no further criminal charges are pending against Smith.
Smith filed a federal civil rights lawsuit against the officers, who in turn filed a motion for summary judgment asserting that they had qualified immunity from Smith’s claim. Their motion failed at the district court level. Now, the officers are asking the ultraconservative 5th U.S. Circuit to intervene and overturn the ruling.
In his response brief to the appeals court, Smith argued that the officers’ appeal was brought in bad faith and is really a “wolf in sheep’s clothing” that demonstrates the officers’ attempt to “deny reality.”
In his brief to the 5th Circuit, Cano argued that “both Gonzalez and Saenz vigorously shove[d] Smith to the ground face-first, and leap[ed] on his back,” and that given that both officers, “were large men well over 250 pounds each,” the tackle was “gratuitous” and clearly constituted excessive force.
Referring to the body camera video, Cano argued, “At [3 minutes 29 seconds], Smith says, ‘I can’t breathe.’”
“Lest we forget the dangers of knees resting on citizens’ heads, there is the landmark tragedy of George Floyd,” the brief reminded.
The officers appealed the district court ruling, and argued that they are entitled to qualified immunity because there was no clearly established constitutional right to be free from the use of a pepper ball gun in the context of Smith’s actions. They further argued that Saenz and Gonzalez’s actions were “objectively reasonable,” because “Smith ran from Saenz, trespassed through private property, behaved erratically, then refused to follow the officers’ orders once Saenz caught up to him and Gonzalez arrived on the scene.”
“I don’t see too many appeals that are frivolous, but this is one of them,” Cano told Law&Crime.
“Even the Fifth Circuit has limitations,” he continued. “This is patently frivolous, and law enforcement doesn’t want to recognize their own videos.”
“It is rather disingenuous the Deputies and Guadalupe County seek to disavow their own body cam footage capturing the flurry of physical abuse,” Cano said. “Such a defense is frivolous because it is not based on reality, the facts, the circumstances, or the law.”
Attorneys for Saenz and Gonzalez did not immediately respond to a request for comment.
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Editor’s note: This piece has been updated from its original version to include comment from counsel.
