winzer

KAUFMAN COUNTY, Texas — Today, action by the United State Supreme Court to deny two writs of certiorari will allow a wrongful death suit to proceed against Kaufman County in the fatal 2013 officer-involved shooting of 25-year-old Gabriel Winzer.

On April 27, 2013, Kaufman County dispatchers received multiple calls of a black man wearing a brown shirt and blue jeans shooting a gun in the street on County Road 316 in the Frog community, east of Elmo, in unincorporated Kaufman County.

Responding officers reported a black male in a brown shirt fired once before they lost sight of him and took up defensive positions behind their patrol vehicles and a nearby ditch, according to court documents obtained by inForney.com.

Moments later, Winzer, wearing a blue jacket, rode his bike into the street and towards the officers.

Details on what happened next are disputed in multiple police incident reports, sworn affidavits from Kaufman County Sheriff's Office deputies and Texas Department of Public Safety troopers, Winzer's father's testimony, and multiple court filings and appeals.

The officers allege they gave Winzer verbal commands, Winzer raised a pistol to a firing position, and they feared for their lives before opening fire — ultimately firing between 17 and 29 times and striking Winzer four times in the chest, thigh, left shoulder, and back shoulder from a distance of approximately 90 to 150 yards, or equal to or greater than the length of a football field.

Winzer's family claims Gabriel was carrying a bright-orange toy gun and that he did not reach for or point anything at the officers because both of his hands were on his bicycle's handlebars.

From the moment Winzer came into view of the officers and they began giving commands, to the moment they opened fire, was less than six seconds, according to court filings and police dashcam video. No firearm was found at the scene.

After being shot, Gabriel fled into his family's backyard where his father attempted life-saving efforts but subsequently succumb to his injuries and was pronounced deceased at the scene.

The case was ultimately investigated by the Texas Rangers and presented to a grand jury which did not return a true bill against any of the officers.

On April 22, 2015, Gabriel's father, Henry, filed a lawsuit in the Northern District of Texas; his mother, Eunice, followed with a suit filed on April 27, 2015; and both alleged civil rights violations and excessive force and failure to train resulted in the wrongful death of Gabriel — naming Kaufman County, Matthew Hinds individually and in his capacity as a member of the Kaufman County Sheriff's Office, and four other officers who were subsequently removed due to the statute of limitations in Texas.

The Supreme Court, in their denial of the two petitions this morning, did not give any opinion or explanation.

"To be clear: This is how the Fifth Circuit ruled in this case," Matt Kita, an attorney representing the family told inForney.com. "It concluded that Defendant Hinds violated my client’s Fourth Amendment rights when he fired multiple shots at him from over 100 yards away, while he was unarmed and posing no threat to the police."

"But the Fifth Circuit also concluded that Defendant Hinds was entitled to 'qualified immunity' because there was no similar case exactly on point that would have allowed him to know that such conduct was unconstitutional," he continued. "As a result, the Fifth Circuit dismissed the case against Hinds, but allowed the case against Kaufman County to go forward."

Based on those rulings from the Fifth Circuit, Kaufman County filed their petition for a writ of certiorari with the United States Supreme Court arguing Hinds had not committed a constitutional violation and, therefore, if Hinds didn't commit a violation, then the county could not be held liable for failing to properly train him or for their toleration of unconstitutional conduct.

In response, Kita says he filed a conditional cross-petition for writ of certiorari arguing that "the Fifth Circuit correctly concluded that Defendant Hinds violated the constitution, but that it erred when concluding the law was not clearly established...to the contrary, it is also well-established that you cannot use deadly force against an unarmed suspect that poses no threat of danger to anyone."

"At the end of the day, this is a victory for the Winzer family," he says. "Under absolutely an absurd and unconscionable Texas law, a county or municipality is not allowed to indemnify an officer who is found liable for violating the constitution. In other words, a judgment against Hinds in his individual capacity would (most likely) not be worth the paper it is printed on."

"But, by allowing the Winzer family to pursue its claims against Kaufman County, there is the possibility that the family will be able to recover some damages for the inexplicable loss of their son," he continued. "Had the Supreme Court granted Kaufman County’s petition and ruled in its favor, the Winzer family would not have had that opportunity."

Hinds is no longer with the Kaufman County Sheriff's Office, according to a sheriff's office spokesperson speaking to inForney.com, who said his employment status is unrelated to the Winzer case.

Kita, meanwhile, says he's hopeful the qualified immunity defense will be a thing of the past when it comes to matters involving violations of ones' constitutional rights.

"Hopefully, the controversial judicially-created doctrine of “qualified immunity”---which is found nowhere in the Civil Rights Act and is obviously inconsistent with its intent when Congress passed it in 1871---will be eviscerated by the Court in another case, or by Congress in pending legislation," he said. "We are happy that the Winzer family still has an avenue to pursue damages for this blatantly unconstitutional conduct."