Fifth Circuit declares officer’s first shot justified, but second and third shots problematical in fatal OIS
Did incident circumstances, including the concept of inattentional blindness, result in an officer’s inability to see the suspect drop his gun?
On May 2, 2017, Jason Roque called the Austin (Texas) Police Department’s (APD) 911 line to advise that a shirtless man was acting crazy and armed with a black pistol. Although not disclosed during the call, Roque was speaking about himself.
Roque’s mother called 911 next and explained that her son wanted to kill himself. Officers proceeded to Roque’s home address and initially were told to respond to a “gun urgent” call that was subsequently changed to “attempted suicide.”
Officer James Harvel and other APD officers arrived and positioned themselves about 75 yards from Roque’s home. Roque was pacing back and forth in front of his home with a black gun in his waistband. He repeatedly yelled for police to shoot him, while his mother, standing on the porch of their home, pleaded with him not to kill himself.
An officer yelled, “Put your hands up” but Roque instead put his arms out to the side and called for officers to shoot and kill him. Roque drew the gun from his waist (later determined to be a BB gun), placed it to his head, turned away from the police and said he would kill himself. An officer yelled, “Put the gun down.”
Video evidence from two different home surveillance cameras disclosed that after the order to drop the gun, Roque turned around to face the officers with his gun pointed in the air. In that split second, as Roque turned with his gun pointed in the air, officer Harvel shot him with a patrol rifle.
The video shows Roque double over, drop the gun and, while still on his feet, move away from the direction of the police. (The court provided two separate video links of the shooting which were reviewed by your author. One video shows Roque turning away from the direction of the police – who are not seen in the video – after apparently being shot the first time by Harvel. My view of the video reveals that Roque dropped the gun with his back turned to the police and while beginning to move away from them. If my view is correct, this would make it more difficult for Harvel to see that Roque dropped the gun.)
Officer Harvel said that he did not see the gun drop to the ground and considered Roque to be a continuing threat to his mother. Harvel fired twice more within two seconds of his first shot. The second shot missed but the third shot killed Roque.
The initial court proceedings
Roques’ parents sued Harvel pursuant to 42 U.S.C. § 1983 in the Federal District Court, alleging a violation of his Fourth Amendment rights to be free from excessive force. 
Harvel responded by raising the qualified immunity defense in a summary judgment motion.
The District Court ruled in favor of Harvel regarding his first shot but denied his motion regarding the second and third shots. Harvel filed an appeal to the United States Court of Appeals for the Fifth Circuit.
The decision of the Fifth Circuit
The Fifth Circuit affirmed the District Court’s decision in all respects. The court ruled that Harvel was justified in taking the first shot. The court explained that the video evidence shows that just before the initial shot, Roque, after being told to drop his gun, pointed the gun in the general direction of the police.
With respect to Harvel’s second and third shots, the court observed that there is a material fact dispute between the parties. The plaintiffs’ claim, supported by the video, was that once Roque was shot the first time, he dropped his gun and was no longer a threat to his mother or the police. Conversely, Harvel claims that he did not see Roque drop his gun, a claim supported by the other on-scene officers and that Roque, still on his feet and moving, remained a deadly threat after being shot the first time.
The Fifth Circuit ruled that because there is a material fact dispute, it must accept the plaintiffs’ facts supported by the video evidence, that Harvel’s second and third shots were directed toward an “unarmed, incapacitated suspect who is moving away from everyone present at the scene.” Accordingly, the court rejected Harvel’s qualified immunity defense and remanded the case for trial.
Was Officer Harvel unable to see the dropped firearm due to inattentional blindness?
The concept of inattentional blindness was never mentioned or considered by the Fifth Circuit in its opinion. However, it would be prudent for Harvel’s defense team to review the concept if the case proceeds to trial.
According to Daniel Simons, Professor of Psychology, University of Illinois, inattentional blindness involves the human failure to notice unexpected objects or events when attention is focused elsewhere.  Simons explains that “more than 50 years ago, experimental psychologists began documenting the many ways that our perception of the world is limited, not by our eyes and ears, but by our minds. We appear able to process only one stream of information at a time, effectively filtering other information from awareness. To a large extent, we perceive only that which receives the focus of our cognitive efforts; our attention.” 
In a 2011 study, Professor Simons and Psychologist Christopher Chabris simulated a notorious Boston Police Department misconduct case in which Kenneth Conley, a Boston police officer, was convicted of perjury because he claimed not to have seen a brutal beating of an undercover Boston police officer by other officers who mistook him for a murder suspect.  At the time of the beating, which happened during nighttime hours, Conley had been chasing and subsequently caught the actual murder suspect. During his pursuit, Conley ran right past the scene of the beating of the undercover officer. 
The Conley study simulated the incident described above at night and 65% of the study participants ran past the nearby staged fight without seeing it. When the study event was switched to daylight, 44% of the participants failed to notice the fight as they passed by.  One thing is for certain, all the study participants knew they were not chasing an actual murder suspect like the Boston officer and yet a substantial number failed to see the staged fight as they ran right by it.
Professor Simons and Dr. Michael Schlosser, Director of the Police Training Institute, University of Illinois, conducted another inattentional blindness study in 2017 entitled “Inattentional blindness for a gun during a simulated police vehicle stop.”  In the study, 100 police academy trainees and 75 experienced police officers were participants. During a simulated traffic stop, participants were instructed to approach and engage a traffic violator for running a stop sign. A handgun was positioned on the dashboard of the offender vehicle, in plain view of the participating law enforcement personnel.
The study resulted in a finding that 58% of the trainees and 33% of the experienced officers failed to notice the handgun while interacting with the traffic offender. The study concluded that “People can experience inattentional blindness for a potentially dangerous object … even when noticing that object would change how they perform their primary task and even when their training focuses on awareness of potential threats.” 
In my opinion, it is highly probable that Officer Harvel did not see Roque drop his gun before firing his second and third shots for several reasons:
- As previously mentioned, my viewing of one of the video links regarding this shooting shows Roque turning away from the officers after being shot the first time. The video shows that Roque dropped his gun after turning his back on the police and beginning to move away from them. After Roque turned his back on the police, logic tells me that it would be more difficult to see that he dropped his gun.
- The case facts state that the police were about 75 yards from Roque’s location at the start of the incident. There is no indication that officers moved closer to him until after the shooting. In fact, one video shows a significant open area in front of where Roque is standing with no officers in sight. Officers are not seen at all in one video and are seen in the other video only after the three shots were fired at Roque. In the latter video, officers appear after firing concluded and are seen to transverse the significant distance separating them from the fallen Roque. If correct, this significant distance supports the officers’ claim that none of them saw Roque drop his gun after the first shot.
- Given the concept of Inattentional blindness, not only does it appear that Harvel and Roque were possibly 75 yards apart, with Roque turning his back on Harvel before dropping the gun. It is also highly likely that Harvel was totally focused on his rifle sights and Roque’s movements away from him rather than Roque dropping his gun. Inattentional blindness may well be a significant factor in Harvel not seeing Roque drop his weapon. 
1. Roque v. Harvel, (No. 20-50277) (5th Cir. 2021).
2. Simons D. Failures of Awareness: The Case of Inattentional Blindness. University of Illinois at Urbana-Champaign.
4. According to an article in the Boston Herald Newspaper dated 11/18/2018, authored by Peter Gelzinis, titled “Ken Conley vindicated by making rank,” Conley’s conviction was overturned by U.S. District Court Judge William Young in 2004. Conley, who had been fired from the Boston Police Department, was reinstated in 2005 with back pay.
5. Supra note 2.
7. See, Daniel J. Simons and Michael D. Schlosser, “Cognitive Research: Principles and Implications,” September 20, 2017.
9. For other information on Inattentional Blindness, see, Ira Hyman, Ph. D., “A Cop, a Chase, and a Fight: Inattentional Blindness on the Beat,” Psychology Today, June 16, 2011; Simons and Schlosser, Inattentional blindness for a gun during a simulated police vehicle stop, Cognitive Research: Principles and Implications, 9/20/2017; Chuck Remsburg, New Study: Many officers ‘Blind’ to Plain-View Threat, Forcescience.org, August 2017.