Emil Ewolski v. City of Brunswick

4-5, Hall, remedy, propriety its any equitable

like to circum- circumstance from change

will Runyon, v. 50 F.3d Lussier

stance. See Cir.1995) that “the (1st (noting

1103, 1110 long been flexibil- equity

hallmarks

ity particularity”). be reason, I we should believe

For that court, and the trial

more deferential court’s decision the district

should disturb benefit between proportion

only where and cost to the union members by the rec- unsupported clearly

plaintiffs is Local Union Murray v. Laborers

ord. Cf. n. 15 1453 &

No.

Cir.1995) question (holding conferred “sub- has plaintiff

whether a award of attor- permit

stantial benefit” error). for clear is reviewed

ney fees clearly evidence

There was sufficient court to conclude the district

this case for particularly had behaved the union rights members’ that the

badly, and union there- seriously It was jeopardized.

were court to conclude for the

fore rational pay portion their

union should members reasons, I For these litigation costs. dissent.

respectfully Plaintiff-Appellant, EWOLSKI,

Emil BRUNSWICK, al., et

CITY OF

Defendants-Appellees.

No. 00-3066. Appeals,

United States Court

Sixth Circuit. Sept. 2001.

Argued: April 2002.

Decided and Filed:

Terry briefed), H. (argued Gilbert and Gilbert, OH, Friedman & Cleveland, Roy (4) Amendment, City of (briefed), Associ- teenth & Teamor J. Schechter for the Lekans’ con- was liable OH, Plaintiff-Appel- Brunswick ates, Cleveland, injuries because decisions stitutional lant. supervis- of Police in the Brunswick briefed), and (argued Nick C. Tomino poli- of a final were those ing the standoff Medina, OH, for De- Latchney, Tomino & ade- because failed cymaker and fendant-Appellee. (5) officers; and to train its quately under state MOORE, police are liable law Circuit Before: GUY battery, intentional trespass, assault HULL, Judge.* District Judges; distress, conspiracy, infliction of mental MOORE, J., opinion of the delivered the stat- wrongful death. For reasons J., GUY, JR., court, RALPH B. in which below, AFFIRM the decision ed 517-521), HULL, (pp. joined. D.J. district court. dissenting opinion. a separate delivered I. BACKGROUND OPINION 28, 1996, Beverly and Lekan On March MOORE, Judge. Circuit Ewolski, administrator for the Emil Ewolski, acting Emil Plaintiff-Appellant T. M. Lekan and John estates of John of John for the estates Administrator as Lekan, alleging filed this action that Lekan, Lekan, T. Beverly and John M. the Lekans’ Fourth violated defendants Lekan, decision appeals the district court’s rights Amendment as se- and Fourteenth all defen- summary judgment granting Constitution. by cured the United States § law in instant 1983 and state dants complaint alleged also state common alleges viola- Appellant’s suit tort action. battery, and trespass, law claims of assault the Lekans’ federal constitutional tions distress, infliction of mental intentional tort as several law rights as well state statutory conspiracy, as well claims of the arising from the conduct claims wrongful death. After the commence- for leading up Department Brunswick Police lawsuit, Lekan Beverly of this died ment two-day a standoff during to and armed action, and to the instant illness unrelated Lekan, tragically which ended with Mr. by Emil claims were assumed Ewolski her kill son Lekan’s decision his with Mr. of her estate. On Decem- as administrator Appellant Specifically, himself. 8, 1999, granted trial mo- ber court (1) violated the claims: filed summary judgment tion for by making a warrant- Fourth Amendment regard plaintiffs’ to all of defendants home without entry less into the Lekan claims, and federal state dismissed exigent circum- evidence sufficient entirety. plaintiffs’ complaint its (2) stances, excessive that the used incident, Beverly of the Lek- family his At the time against Mr. Lekan and force multiple of the an was sclerosis during the standoff violation bedridden (3) receiving home health ser- Amendment, and had police’s Fourth been Nurses, Tri-County Home Inc. vices from during the standoff demonstrated conduct year (“Tri-County”) approximately safety one indifference to deliberate any significant problems. of the Four- without While family violation Lekan * Hull, Tennessee, sitting by designation. Gray United Honorable Thomas Judge District States District for the Eastern Tri-County provided Mrs. Lekan spoke with as- from an extension and spewed vari- sistance with her helped catheter and profanities her ous at Hillegass. bathe, she relied on her husband John Later, at about 8:50 a.m. that same Lekan for the care of their nine-year-old morning, mother, Mrs. Lekan’s Helen J.T., son as well as the cooking and clean- Ewolski, advised Hillegass that Mr. Lekan

ing for the household. suffered from post-traumatic syn- stress drome, although and that he had been

On March while Mrs. Lekan verbally abusive to his wife in past, he receiving her bi-weekly home health had been physically never abusive. services, At Lekan, rifle, Mr. carrying a en- a.m., Hillegass 11:15 called the Cleveland tered the room a Tri-County where aide Clinic to talk to Dr. Kinkle who was Mrs. was caring for Mrs. point, Lekan. At one Lekan’s physician. She expressed concern Mr. placed the weapon only few for Mrs. Lekan and J.T., for the safety of inches from the aide’s face. Mr. Lekan her son. She was told that Dr. Kinkle was again displayed rifle during the visit available, but that he also had a mes- 22,1995. the aide on March Subsequently, sage to call Mrs. Lekan. 27, 1995, on March the Tri-County aide reported the superior incidents to her Bar- Hillegass also confirmed around bara Hillegass. Because of her concern 31, 1995, noon on March Tri-County noti- safety of the healthcare workers fied Adult Protective Services their con- home, going to the Hillegass called cerns in regard Lekan, to Mrs. and Chil- 30, 1995, Mrs. Lekan on March and ad- dren’s Services of their in regard concerns vised her Tri-County wanted her hus- J.T. At around p.m., 1:30 Hillegass re- band to a sign contract regarding guns. information his ceived that neither Adult Pro- Hillegass also asked if Mrs. Lekan tective she was Services nor Children’s Services comfortable discussing this considered with this to emergency contract be an situa- husband, tion, her and she and that indicated that she neither agency would be would talk However, taking to him about it. further immediate day action that hour, in regard about half an Mrs. Lekan to the Lekan called back home situation. Nevertheless, and stated that County she was Medina not Human comfortable Ser- vices discussing the contacted the contract with her Brunswick Police De- husband. response, partment concerning the Hillegass they information that Tri- stated had from County Hillegass. received would discuss the contract with Mr. Lekan. p.m., At 1:45 Hillegass phone received a call Sergeant from Nick concerning Solar

On the morning of March Mrs. the Lekan situation. Hillegass asked Ser- Lekan Tri-County called and informed geant Solar what actions he anticipated the them that she did want a home health police would take. He told her that this aide day that and that she wanted to con- potential situation, was a stand-off that he sider a nursing placement. home She also was to going game devise a plan, and that allegedly Tri-County informed that her police probably would a call. He make angry husband was and kept he had their indicated that he had been made aware of son home day. Because of concern the situation p.m. by sometime before 1:45 Lekan, for Mrs. Hillegass called Lek- Mrs. the social services agencies. an back and asked her if there was a problem. When Mrs. Lekan did not re- Sergeant Solar then met Sergeant spond, Hillegass again Stukbauer, asked her if there Schnell, Detective Patrol Offi- a problem. was point, Marok, At that Mr. Lekan cer and Patrol Officer Sam Puzel- Lekan, to Mrs. speak to asked again ella Detective the situation.

la to discuss at one and respond, did Mr. Lekan learned he had told Solar Schnell Spangled the Star sing to started point he awas that John of 1994 December Banner. police any if and schizophrenic paranoid a mental him to commit tried to

officers badge police his took out then Puzella for violence. potential a facility, there was up to held them card and identification and just prior confirmed also had Schnell Mr. Lekan He told window. open with Suzanne a contact meeting after needed that he officer and a he was and dispatcher Lekan, was who im- Mr. Lekan Mrs. Lekan. speak to sister-in-law, Lek- that John Lekan’s John the window away from mediately moved he and schizophrenic paranoid an was Puzella door. the front and slammed Su- medication. taking his not been had and tried open door the storm pulled John informed Schnell that further door, zanne it locked. was front but open the she be- guns, finally it Lekan had loaded until kicked the door then Puzella if officers shoot at he would lieved the house Puzella entered opened. home. to the Puzella and they went by Mr. Lekan. was shot home and from the retreated Schnell discussion, to dis- decided Solar After was then Puzella for assistance. called residence to the Lekan officers patch two from the scene. removed Beverly whether to determine in order Police Brunswick danger. Officer contacted The officers or her son him informed Beyer Lek- go to the Patrick volunteered Dale Schnell Beyer home. the Lekan Puzella. Solar Sam the events with Officer an home charge of Rolling Hills officer in to the contacted the went and other officers (“ERT”), Ser- Response resi- Team near the Lekan Emergency Center Shopping McDermott, to the two went need- and the geant assistance in case further dence perimeters had they Beyer established the information scene. ed. Because of home, neigh- evacuated possible Lekan’s the Lekan regarding John around received ERT. officers, residents, ad- and mobilized boring Solar violent reaction Solar, Sergeant Beyer rath- instructed civilian clothes Chief Puzella wear vised to to hostage negotiation, was trained uniform. Schnell was police than a who er assume the and clothes. to the station wearing civilian return already negotiator. role of chief Lekan to the Puzella drove and Schnell meantime, Lekan called car, In the Mrs. and parked, unmarked residence report to Department Police by the front Brunswick porch a small up to walked and broken down had been that her door storm knocked on the outer door. Schnell shot. had been that someone interior in front which was door Sergeant Solar. So- the call to interior transferred opened Lekan and John door line. on another call her back lar asked to identify them- did not The officers door. back, an- Mr. Lekan called Solar to Mrs. When speak asked to and Puzella selves “the He Solar phone. told hear Mr. swered could not The officers Lekan. his that he had lucky” and was him to first officer Puzella response. asked Lekan’s ready go.” Joint loaded and “.270 hear they [rifle] so could the storm door open 95). (“J.A.”) (Solar Dep. at at 936 Appendix door. open him, did but Mr. Lekan out of if come he would Lekan nearby open Solar asked Instead, a small he went Lekan that assured could the house the officers window and said hurt. get anybody did not want Puz- through the window. hear him When Lekan told Mr. Solar his home was police ultimately retreated and the stand- nobody going his castle and off take continued. anything him or else Bey- out it. Chief At approximately a.m., spoke 3:00 Solar er later asked Solar to return to the Lekan again with Mr. Lekan and asked to talk to scene, arriving After at the

house. Solar son, Mr. Lekan’s J.T. Mr. put Lekan J.T. trying to negotiate continued with Mr. telephone. on the J.T. told Solar that he telephone. Mr. Lekan made no was fine and that he was scared. Mr. demands, and increasingly became inco- Lekan then took telephone and asked herent as the standoff At progressed. one cousin, to speak to his who is a priest. point, Mr. Lekan speak asked to with Sen- Solar told Mr. Lekan that he speak could ator Kennedy. Edward to his cousin if he left the house. Mr. “[tjhat’s Lekan said part of the scenar- meantime, In the relatives of the Lekan (Solar io” hung up. J.A. at 136 Aff. at family went to the Brunswick sta- 4). Solar consulted with negoti- another to offer Beverly tion assistance. Lekan’s ator from the Southwest Enforcement Bu- mother and pleaded sister with the police reau, they request concluded that the to be allowed speak with Mr. Lekan to to speak priest to a was a danger sign however, calm the situation. police, indicating that Mr. might be con- any family refused to allow members to templating a murder-suicide ritual. with Mr. Lekan. speak thereafter, Shortly an armored vehicle Between 7:00 and 7:30 p.m., Beyer Chief from the Cleveland Department Police ar- requested an assessment from James Pol- rived on the Beyer scene. Chief ordered zner, a mental health professional at the the armored vehicle to drive onto the front scene. Polzner had been monitoring con- lawn and illuminate the Lekan house. Of- versations between Sergeant Solar and ficers inside the attempted vehicle to com- Lekan. Beyer Mr. Polzner told Chief that municate with Mr. Lekan over a loud- the threat level high. Beyer Chief speaker, but no response. received Later if then asked the officers at the scene had morning, the armored vehicle rammed pursue reason not to a tactical solution to through living room injected wall and Beyer the standoff. input asked from more gas tear into the in hopes house psychologist scene, another on the who eliciting a response from Mr. Lekan. Be- responded by asking rhetorically why Bey- a.m., tween 4:00 and 5:00 the police heard was considering er a tactical assault. gunshots coming from inside the residence. a.m., At 11:00 Beyer Chief ordered the Ultimately, Beyer decided to or- push vehicle to through garage the door. an entry der armed into the Lekan house. response There was still no from Mr. Lek- plan, Pursuant to the assault the ERT Finally, an. the conducted another team threw devices incendiary into the operation. tactical rescue A room-to-room while using battering house ram to break search of the residence conducted. the open front door. Tear gas was also search, During the the officers found the during plan used the assault. The failed bodies of John Lekan and J.T. Lekan. when one of incendiary the devices ignited John Lekan had his son shot and then a fire in the entrance hall and the lead killed himself. stopped officer put out the fire. The police lost the as a initiative result. Mr. The details of this are well sum- standoff exchanged gunfire police, with the sixty-seven-page report marized the of and two more injured. Callis, officers were P. William who was hired the In expert. his plaintiffs’ in- retained as City to conduct Council

Brunswick he reviewed Fyfe Mr. Dr. notes that report, of the incident. review dependent report of Special investigative reports, FBI the Callis, was a former who Callis, in his six depositions Qualified Immunity Against B. Claims I it a to inter- 3. believe was mistake Defendants Individual Officer deal rupt entry try the tactical in the fire front door. against the indi Appellant’s claims at 514. J.A. De of the Brunswick Police vidual officers evaluated under partment must be The record also includes the thirteen- Ph.D., immunity. Accord- qualified framework of report Fyfe of James J. who page

501 ing qualified to the doctrine of immunity, district correctly court that exigent found “government performing officials discre justify circumstances existed to a warrant- tionary generally functions are shielded less A entry. entry into a officer’s liability from civil damages insofar as home without a warrant is presumptively their conduct clearly does violate es unconstitutional under the Fourth Amend statutory tablished or rights constitutional ment. O’Brien v. City Rapids, Grand 23 of person which a reasonable would have (6th 990, Cir.1994). F.3d 996 Warrantless known.” Harlow v. Fitzgerald, 457 U.S. permitted, however, entries are where “ex 800, 818, 2727, 102 S.Ct. 73 L.Ed.2d 396 igent circumstances” exist. Hancock v. (1982). Qualified immunity involves a two- Dodson, 1367, (6th 958 F.2d 1375 Cir. First, step inquiry. the court must deter 1992). Exigent exist circumstances where “ whether, mine upon based the applicable there are ‘real immediate and serious law, the facts viewed in fight most consequences’ that would certainly occur plaintiffs favorable to the show that a con were a officer to ‘postpone[ action ] ” stitutional violation has occurred. If the get O’Brien, a warrant.’ 23 F.3d at court violation, finds a constitutional it 997 (quoting Wisconsin, Welsh v. 466 U.S. must then consider whether the violation 740, 751, 2091, 104 S.Ct. 80 L.Ed.2d 732 “ involved ‘clearly established constitution (1984)). The relevant inquiry is whether rights al of which a reasonable person the facts are such objectively that an rea ” would have known.’ Dickerson v. sonable officer confronted with the same McClellan, (6th 1151, 101 F.3d 1158 Cir. reasonably circumstances could believe 1996) (quoting Christophel v. Kukulinsky, that exigent circumstances existed. Dick 479, Cir.1995)); 61 F.3d see also erson, 101 F.3d at types 1158. Three Katz, 194, Saucier v. 533 U.S. 121 S.Ct. circumstances have traditionally been 2151, (2001). 2156, 150 L.Ed.2d 272 For a found to constitute exigent circumstances: right established, clearly be con “[t]he “(1) when the officers were pursuit in hot right tours of the sufficiently must be clear (2) fleeing suspect; of a when the suspect that a reasonable official would understand represented an immediate threat to the that what doing he is right.” violates that (3) arresting public; officers and im when Cincinnati, Russo v. mediate police necessary action was pre (6th Cir.1992) (quoting Anderson v. vent the destruction of vital evidence or Creighton, thwart escape of known criminals.” (1987)). it “Although L.Ed.2d Hancock, 958 F.2d at 1375. need not be the ease that ‘the action very question Although previously has been un determination held lawful, law, exigent ... pre-existing normally circumstances is fight ques ” tion apparent.’ jury, unlawfulness must be for the “in a Id. case where the Anderson, (quoting underlying essentially 483 U.S. at facts are undisput 3034). ed, qualified immunity Whether where finder of could reach fact applicable to an official’s actions is a but one conclusion as to existence of question circumstances, of law that is exigent reviewed novo. may de the issue be Dickerson, See F.3d 1157. decided the trial court aas matter of Hancock, law.” Id. In we that exi found Entry 1. Warrantless gent circumstances existed a matter of Turning first to the law Appellant’s where the a call con received entry warrantless against cerning claim suicidal possibly Officers homicidal Schnell, Puzella fired, gunman, conclude that the shots had reported been (5) unexpectedly asked day, indi- and his wife one radio communication and at least nursing home that put be into a had threatened to gunman cated that morning. Id. who arrived. any police kill officers Dickerson, F.3d at in Similarly, 11). (Dist. Op. at In addi- at 62 Ct. J.A. summary judgment that concluded we tion, that undisputed evidence showed ap- was circumstances upon exigent based Mr. observed Puzella and Schnell Officers made an unan- police where the propriate erratically immediately behaving entry responding to while nounced forcible He as- to enter.1 prior to their decision man a drunken reporting a call Fifth Amendment when asked serted the in shots his house. screaming and had fired Spangled sang wife and the Star about his that the it was later determined Although Puzella and Banner. Officers When and was alone in his house suspect was offi- police themselves as Schnell identified we deter- telephone, into the screaming cers, agree he the door. We slammed for the it reasonable mined that was could “[o]ne the district court that with in house that someone believe reasonably sign this as a that Mr. construe harm peril bodily and was in immediate something, holding his hiding Lekan was of a firearm and given presence preventing family hostage, or to use his apparent willingness suspect’s had whatever action he [stopping] from weapon. Id. 12). (Dist. atOp. J.A. at 63 Ct. planned.” reaction, with the This dramatic combined here. present Similar facts were knowledge that he was armed and officers’ upon relied facts which The district court child in and that his wife and were volatile entry: that at the time of the initial showed him, undisputed with reveals an the house had credible evidence the officers body from which a reasonable of evidence (1) mentally Lekan was a disturbed John reasonably concluded officer could volatile, dangerous and man who was immediate threat to Mr. that there was an (2) medication, taking prescribed his Lekan’s wife and son. recently began brandishing shotgun he family danger The to Mr. Lekan’s makes personnel home health care front of (3) manner, exigent cir- stronger his this an even case threatening he told Hancock, than guns that his cumstances night brother before (4) any poten- no evidence of ready,” inexpli and he where there was were “loaded hostages hostages.2 presence tial cably kept his son home from school court, therefore, "expressly recog- disagree Judge did not respectfully Hull’s 1. We fact, opinion of the district court characterization genuine nize” a of material as it issue recognized existing having "expressly granted summary judgment ultimately exigent dispute regard to material plaintiffs’ Fourth Amend- of fact defendants on the (Dissent 518). por- at circumstances.” ment claims. opinion excerpted tion of the district court plain- Judge merely restates the Hull's dissent "hostage” is intended 2. Our use of the term aware of tiff's claims that the were not merely signify Mrs. and her son exigent arriving before circumstances Lekan, of Mr. who were under the control and did not di- Lekan house that the homicidal, potentially was armed rectly being or witness a crime committed danger being We harmed. were in serious threatening anybody. As is ex- Mr. Lekan may recognize that this differ from the defini- infra, plained opinion, in the dis- in this "hostage” employed re- tion of in the Callis opinion, court these facts do not raise a trict port, requires "hostage” be which that the genuine exigent issue as to whether circum- demands in a bar- used to secure substantive police made the stances existed at the time the Nevertheless, disagree gaining process. decision enter Lekan house. The district distinguishes 1158, also the instant case from United v. Morgan, States (6th by Appellant cited in which this Cir.1984), denied, those cert. exigent court declined to find circum- 1061, 2126, 85 L.Ed.2d 490 O’Brien, stances. 23 F.3d at 997-98 See (1985). Moreover, this court has never (finding exigent absence of circumstances police held that the must witness a crime hostages present); where no were United exigent present. circumstances to be Johnson, States F.3d Hancock, In example, F.2d at Cir.1994) (holding no circum- exigent the defendant officers’ information regard present hostages stances were once had ing exigent circumstances was limited to danger). been secured and removed from reports they received from a radio dis importance potential danger The to Where, here, patch. an armed and people apparent innocent the house is volatile poses individual an obvious threat Dickerson, opinion from our 101 F.3d at another, we do not believe the Fourth emphasized which the reasonable be- Amendment requires police to stand hostage lief that a could be present idly by they actually until observe a crimi though house—even this turned out to not act. Similarly, although police nal may finding be the case—in cir- exigent threats, not have personally any heard In cumstances existed as matter of law. they were aware of Mr. Lekan’s threaten case, the instant had actual Moreover, ing behavior. the undisputed knowledge that Mr. Lekan’s wife and son evidence indicates that Officer Schnell was inside, were apparent threat aware of Mr. Lekan’s statement that his them was enhanced the fact that Mrs. guns ready.” were “loaded and sought Lekan had earlier to be taken out kept of the house and that Mr. Lekan had unpersuaded by We are also the Appel- his son home from school. lant’s claim that the defendant im- officers permissibly created the exigent circum- Appellant emphasizes that the by initially stances attempting see Mrs. exigent admitted that circumstances identifying Lekan'without themselves as present were not they before arrived at police officers. Appellant upon relies home, the Lekan and that the police never Morgan, United States v. 743 F.2d at being saw crime committed and did not in which we “[p]olice observed that officials Mr. anyone. hear Lekan threaten As the ... are not free create exigent circum- observed, however, district court correctly justify stances to their warrantless intru- exigent the fact that circumstances did not case, however, Morgan sions.” The is eas- point exist at some earlier in time is irrele vant, ily distinguished. Morgan, inquiry since our limited to wheth exigent person er circumstances at surrounded the home of a suspect- existed moment possessing entered the residence. illegal ed firearms and flood- Judge suspect making Hull that the fact that Mr. Lekan substantive demands in demands, making was not substantive connection with such a threat. As to this technically holding therefore his fam- question, portion report quot- of the Callis ily "hostage" Callis, in the sense that term is used Judge ed in Hull’s dissent concedes that al- question creates a material fact as to though Mrs. Lekan and her son "were not exigent the existence of circumstances. The actually hostages," they “were victims of Mr. key determining exigent issue in whether cir- They Lekan’s actions. were in the residence cumstances existed is whether the officers when Mr. Lekan committed his criminal act reasonably suspect repre- believed that "the opportunity and he afforded them no public,” sented an immediate threat to the ... at leave.” J.A. 496.

Hancock, F.2d not whether the 504 to be controlled deliveries holding summoning Circuit lights while house with the

ed po the a created “blaring exigent call of circumstances the suspect with the to suspect lice, police opportunity exit- had the 1161. The “the Id. at bullhorn.” executing he to carrying pistol, prior a which a warrant obtain search the house ed doorway of the dwelling, the delivery down inside at that then set the controlled Cresta, then so.”); him and police arrested v. house. to do U.S. chose not but house, Cir.1987) a of seizing (1st (“Thus, number 538, the the searched F.2d 553 826 firearms, Id. held including pistol. the We the time not have controlled agents could the home search of the warrantless place, delivery the fake took at which by exigent circumstances. justified was not finding a necessary element to which is a no substan- “[t]here explained We deliberately created government that the Morgan danger- tiated evidence denied, circumstances.”), exigent cert. the or crime of grave or that a offense ous 2033, 100 L.Ed.2d 486 U.S. even threat- or had occurred was violence (1988). 618 emphasized the at 1163. We Id. ened.” Moreover, ereated-exigency the need for immedi- any demonstrated lack of some show typically required have cases action, noting police that the had suffi- ate the part conduct on the ing of deliberate shop at a coffee time to meet local cient intentionally to evincing an effort police situation,” before decid- and 1 “assess! requirement. the warrant See evade at 1162. the house. Id. ing to surround (“This 261 F.3d at 633 Court Campbell, circumstances, found that these Under by the warrantless entries has struck down suspect that the would possibility mere con where deliberate police situations actions hostility to the dramatic react has part on the officers duct not, itself, create could exigent claimed circum created justify to exigent circumstances sufficient VonWillie, stances.”); 59 United States In the Id. at 1168. a warrantless search. Cir.1995) (“This (9th is not F.3d 926 contrast, case, by Officers Puzella instant government purposely case where have reason believe that Schnell did and requirements of tried to circumvent the Although of violence. danger was a there statute].”). and announce knock [the may have risen to the level this threat no evidence to Appellant presented has only the offi exigent circumstances after and Puzella indicate that Officers Schnell Lekan, themselves Mr. identified cers made a effort to incite Mr. Lek- deliberate Lekan and her son was the risk to Mrs. an, as create a threat to Mrs. so conduct, solely by created the officers’ justify that could a warrant- and her son Moreover, risk to Mrs. Morgan. as Instead, undisputed evi less search. justified the reasonably Lekan and her son that the officers had rea dence indicates investigate that there was a need to belief concerned for the grounds sonable to be quickly. This fact relatively situation son, did safety of Lekan and her but Mrs. many from distinguishes the instant case possess probable cause sufficient cases, rea created-exigeney which Under these circum obtain warrant. claim there that the cannot soned stances, go to the it was reasonable if time to seek a warrant was insufficient attempt to learn more Lekan home con the evidence shows through questioning of Mr. consensual timing giving trolled the encounter Jones, F.3d States v. v. Lekan. United to the search. See States rise United (5th Cir.) (“Federal courts have Cir. Campbell, 261 F.3d 633-34 2001) recognized strategy the ‘knock and talk’ Eighth that in cases (noting from disturbed, investigative mentally tool when offi suspect possessed reasonable gain knives, an occupant’s cers seek to consent to two a radio call had described the reasonably suspect or when officers suicidal, search suspect as suspect had , — activity”), criminal cert. U.S. lights turned out the gone silent im- denied (2001). -, L.Ed.2d mediately before the officers’ decision to an giving When officer observes facts rise that, enter. explained We if even the offi- exigent circumstances the course of unreasonable, cers’ actions were we were encounter, usually such a consensual it not aware of “a single case indicating that impermissi- be said that the officer cannot an attempt officer’s to rescue what that bly the exigent “created” circumstances. officer believes to be a person suicidal does Although Id. Officers Schnell and Puzella’s not constitute exigent circumstances.” Id. strategic identify decision not them at 1044. We are not any aware of such may selves immediately have been ill-ad case that has issued since Russo. Certain- vised, may even have contributed to then, ly, a reasonable officer could not Mr. agitation, Lekan’s this conduct did not anticipate that a might court exi- decide give police rise to a claim that the imper- gent circumstances were absent where the missibly exigency.3 created the danger of suicide was compounded by an apparent threat to the suspect’s family. genuine Even if issues of material fact Therefore, summary judgment for the offi- did exist as to whether a reasonable officer grounds cers on the qualified immunity would perceived immediate threat is appropriate regarding the warrantless Lekans, to the we would still find sum- entry claim. mary judgment appropriate to be on the “clearly basis of the prong established” 2. Excessive Force qualified immunity test. As the above indicates, discussion we can find no con- rejected The district court trolling authority Appellant’s where court has held Fourth Amendment excessive similar conduct to be unconstitutional “un- grounds force claim on the that there was der facts not distinguishable way a fair not a “seizure” of either Mr. Lekan or his (Dist. presented from the facts in the family. case at at 14- Op. J.A. 65-66 Ct. Saucier, 15). noted, hand.” S.Ct. at 2157. As the court the Fourth Russo, 1043-44, 953 F.2d at we held that Amendment protects against only unrea seizures, police the defendant officers were guarantee entitled sonable it is not a qualified immunity on plaintiff’s against or outrageous unreasonable official claims, McKee, entry warrantless generally. where the undis- conduct See Galas (6th Cir.1986). puted suspect facts showed that the F.2d There- respectfully disagree 3. We provoked therefore been such volatile behavior if the Judge suggestion gone Hull’s plain that the Callis re- had not to his home in clothes, however, port's dispute criticisms of the Brunswick Police De- does not that exi- partment's procedure gent present "welfare check” creates circumstances were Mr. when genuine ultimately issue of material fact as to did exhibit this volatile be- question exigent por- suggesting circumstances. The havior. In the absence of facts report quoted police impermissibly tion of the Callis in the dissent "created the merely exigency” concept states that the should have used as that is understood in risk, any, jurisprudence, different methods to discern what if Fourth Amendment whether son, posed part Mr. Lekan to his wife and and that or not tactics were of the causal might resulting exigency different tactics have avoided the chain in the is not material po- question confrontation between Mr. Lekan and the to the of whether the warrantless might entry justified by exigent lice. The fact that Mr. Lekan not have circumstances. that Mr. under the circumstances question Amend- fore, Fourth a successful to assert free to leave. The district claim, must first show was not plaintiffs ment id. The case to be a seizure. See Mr. Lekan’s there was court considered none of the fleeing analogous court concluded to that of a closely district more police. by the We seized Lekans were is not under control suspect, who in- court erred the district believe, however, determine that official authorities. We Lekan was not that Mr. as it found sofar closely resem- Lekan’s case more that Mr. standoff, although we during seized Brower, 489 U.S. at bles the facts court’s conclusion the district agree with case, In that the decedent 1378. her son were not Lekan and that Mrs. au- voluntarily submitted to official never Nevertheless, we conclude seized. restrained nonetheless thority, but was gen- has not demonstrated Appellant police with a roadblock when he collided fact as to whether of material uine issue him. stopping of up purpose set for the Mr. Lek- against used excessive force was that this act of restraint The Court found an. purposes of a seizure for the constituted in Similarly, Id. the Fourth Amendment. Amendment seizure A Fourth case, in was never although Mr. Lekan officer restrains police occurs when a way custody, police surrounded police in such a that liberty of a citizen reasonably in paraded be an armored vehicle reasonable citizen would house and circumstances that he or lieve under the These actions front of the Lekans’ house. Michigan v. free to leave. she was not application of qualify as an intentional Chesternut, 567, 573, 108 486 U.S. S.Ct. authority made force and show of physical (1988). A 1975, violation 100 L.Ed.2d 565 con- acquiring physical the intent of requires Amendment of the Fourth Moreover, this assertion of force and trol. acquisition physical of control” “intentional restraining in Mr. authority succeeded official. Brower v. person by of a state liberty to leave his home. Unlike Lekan’s 593, 596, 109 County Inyo, 489 U.S. of in Hodari D. and Ga- fleeing suspects (1989). 1378, A 103 L.Ed.2d 628 S.Ct. las, By not “on the loose.” Mr. Lekan was moreover, occur, until the seizure does illustration, clearly way of Mr. successfully by physical subject is detained purposes for the of would have been seized authority. v. or a show of force California the Fourth Amendment had 1547, D., 621, 111 Hodari 499 U.S. S.Ct. of his nailed the doors and windows shut (1991) (holding boy that 113 L.Ed.2d 690 him inside. The actions of the house with fleeing pursuing while from was not seized less police in the instant case were no him, until officer tackled police officer restraining Mr. Lekan’s move- effective control); Ga bringing boy physical under and, therefore, ments should be considered las, (“Clearly, during the 801 F.2d at 202 City Memphis, Fisher v. a seizure. Cf. when the minor stages pursuit initial of the (6th Cir.2000) (holding F.3d 318 234 obey flee rather than to plaintiff decided to application intentional of force which stop, the defendant officer’s directive effectively seized immobilized automobile restrained.”). plaintiff the minor was not This conclusion is consis- passengers). all circuits, with decisions other which tent The district court concluded force a efforts to seized, have found by Mr. Lekan was not because a home are individual out of barricaded in his home he never barricading himself seizures, subject as authority. properly con treated to official This submitted reasonableness re- Fourth Amendment’s in error. There can be little clusion was

507 fact, objective the clear of the Philadelphia it was re quirement. Cir.) (3rd (Scirica, re- remove them from the house and Litig., 49 F.3d (holding that J., dissenting) concurring them from the control of Mr. Lekan. move house incendiary against devices use restrained Mr. Their movement was seizure, “force with it was use of (or case, was her own Mrs. Lekan’s the house or entry into gaining the aim of condition), police.4 physical denied, out”), occupants cert. forcing the control The fact that the exercised L.Ed.2d house over the environment the Lekans’ (1995); F.2d Stallcup, Ginter does not demonstrate that Mrs. Lekan and Cir.1989) that set (holding distinguishing her son were seized. fire to “smoke out” barri ting budding on feature of a seizure is the restraint subject to Fourth suspect caded his or her subject’s liberty specifically, — test to deter reasonableness Amendment away. over one’s freedom to walk Control property mine whether destruction a seizure environment does not establish warranted). Because we conclude restricts the unless that control somehow purposes Lekan was seized for Mr. subject’s liberty. There are no physical Amendment, therefore ana Fourth this was alleged suggest facts that would solely him actions toward lyze police’s the case for Mrs. Lekan or her son. test of objective the reasonableness under Amendment. See Graham the Fourth though we conclude that the Even Connor, 386, 394-95, 109 S.Ct. 490 U.S. that Mr. finding district court erred (1989) (holding that 104 L.Ed.2d 443 seized, has Appellant Lekan was not the an excessive force claim arises where officers’ faded to show that the nonetheless investigatory an arrest or the context of unreasonable. The deter use of force was analyzed solely under stop, it should be a of whether force used to effect mination Amendment, not Fourteenth Fourth careful “requires was unreasonable seizure Clause). Amendment Due Process of to the facts and circumstances attention case, severity including the particular each the district We conclude issue, suspect of the crime at whether however, correct, finding court was safety threat to the of poses an immediate Mrs. Lekan or J.T. police did not seize others, and whether he is the officers or There was no reason for either Lekan. resisting attempting or actively arrest pre police that the were them to believe Graham, 490 U.S. by flight.” In evade arrest leaving the house. venting them from dissent, safety pursuant Fourteenth Amend- upon her to the Judge relies Stem 4. In his Hull Florence, City process protections. F.3d ler v. due ment’s substantive Cir.1997), denied, 1118, 118 rt. analyzed were not Id. The decedent’s claims ce (1998), in reach S.Ct. 140 L.Ed.2d 936 objective rea- the Fourth Amendment’s under ing Lekan and her the conclusion that Mrs. Moreover, even if sonableness standard. police. We think this were seized son to hold that the decedent Stemler can be read inapposite. Stemler was a substantive case is meaning the Fourth within the was seized case, process a Amendment due Fourth Amendment, presented situation the factual Stemler, In we held that excessive force case. readily distinguishable from the in- therein is removing dece police, by physically Stemler, we held that the stant case. In dent, Black, plac from one vehicle and Conni they custody decedent when established operated by intoxi ing vehicle her her into her physically grabbed her and lifted her boyfriend, took affirmative cated and abusive against Id. No boyfriend’s her will. vehicle liberty and the decedent’s action to restrain was ever physical restraint such act of direct duty in a her a not to act therefore owed Lekan or her son. relation to Mrs. taken in deliberately indifferent to manner that was objec- at injury 1865. The test is Even if a constitutional had oc tive; curred, it asks whether reasonable officer sufficiently the law is not clearly would conclude that the level of force used established on question this to overcome 396-97, appropriate. See id. at Russo, qualified immunity. See S.Ct. 1865. 1044-45; In Philadelphia re Litig., 49 972 (granting qualified F.3d at standard,

Under this we hold that sum- immunity where fire used to mary judgment for the defendants was group gun' smoke out barricaded after bat appropriate. deadly used force tle, because it could not conclude that “in only during the tactical assault on the Lek- light pre-existing law the unlawful however, At point, ans’ home. it is ness of either dropping explosive or undisputed that Mr. firing Lekan was on letting officers, fire burn should have been posed and he therefore omitted)). apparent” Russo, (quotation immediate threat to the Al- officers. 1044-45, though the facts viewed most 953 F.2d at we held that favorably to the plaintiffs reveal that Mr. Lekan was defendant officers were entitled to not an immediate threat qualified when the officers immunity as to the claim that attempting were not entry, forcible nei- they used in firing unreasonable force mul any deadly ther was there use of force at tiple times with gun a non-lethal Taser Moreover, these times. it undisputed upon mentally suspect disturbed wield that Mr. actively Lekan was resisting ar- ing two knives. noted that “although We rest; indeed, he demonstrated that he plaintiffs’ allegations may genu raise a any would on fire officers who entered the ine issue of material fact as to whether the circumstances, house. Under these reasonable,” use of the Taser was we could only can conclude that the use of the bat- not conclude that the defendant’s “use of tering devices, ram and incendiary the non-lethal force to a potentially subdue which were against directed Mr. Lekan’s homicidal transgressed individual clearly home but person, not his were objectively established In reaching law.” Id. this con applied reasonable as to Mr. Lekan. At clusion, emphasized that the defendant least one court greater has found far de- “deployed the in Taser an effort to obviate struction property of to be reasonable at the need for lethal force.” Id. at 1044. summary the judgment in stage the con- Similarly, here the defendants did em text of an armed and barricaded individual. force, ploy lethal except during those occa Ginter, F.2d at (holding plain- 869 389 sions when Mr. directly upon Lekan fired question tiffs failed to create a jury as to them. We are controlling aware of no burning whether down house where heavi- precedent holding since Russo that the use ly fugitive armed was barricaded was un- against of non-lethal force an armed and force). light reasonable use of of Mr. suspect volatile constitutes excessive force. willingness deadly Lekan’s to use force We therefore conclude that the defendants against arrest, the in resisting are entitled to qualified immunity on the non-deadly use of gas force such as tear Appellant’s excessive force claim. psychological tactics, ill- perhaps while considered, any was not excessive under 3. Substantive Due Process Claim Indeed, version of the facts before us. Appellant has presented no evidence to We also conclude that the district court indicate that Mr. physically correctly Lekan was determined that the conduct of any harmed in way by by the force exerted during two-day standoff did police. not violate the substantive due process

509 food, shelter, e.g., clothing, human or her son. As Beverly Lekan rights of needs — “ care, safety and reasonable explained, ‘[t]he has medical Supreme Court —it of protection is limits on process transgresses of due substantive touchstone arbitrary action of against individual the Eighth state action set Amendment the fault lies in a 200, whether government,’ and the Due Process Clause.” Id. at fairness, procedural denial of fundamental 998. S.Ct. any power of without or the exercise ” County justification.... settings,

reasonable Even in noncustodial of 845-46, 883, Lewis, 523 v. U.S. however, Sacramento may state officials violate the (1998) 1708, 140L.Ed.2d 1043 S.Ct. Due Process Clause when their affirmative McDonnell, v. U.S. (quoting directly vulnerability actions increase the Wolff (1974) 41 L.Ed.2d 935 94 S.Ct. danger place of citizens to or otherwise omitted)). (citations The claim Appellant’s way. DeShaney, citizens harm’s See substantive, due procedural, is one (“While 201, 109 489 U.S. at is, argues Appellant That process. dangers have been aware of the may State de Mrs. Lekan and her son were world, faced in the free it that Joshua liberty as a result of prived of life creation, nor did it played part no their arbitrary government power— exercise of him anything any do to render more vul in unnec namely, the actions of the them.”); Gazette v. Pon nerable essarily escalating the confrontation with Cir.1994) tiac, 41 F.3d Mr. Lekan. (“[A] arise in a noncus duty protect can anything if the does setting todial state Due Process Clause of the more vulnerable to render an individual “phrased as a Fourteenth Amendment Columbia, v. danger.”); Butera District of act, not power on the State’s limitation (“All (D.C.Cir.2001) 637, 648-49 minimal guarantee of certain levels appeals ... have now circuit courts safety security.” DeShaney Winne passage DeShaney on relied Servs., 489 bago County Dep’t Social may possible there be acknowledge 189, 195, 103 L.Ed.2d U.S. liability ... where state constitutional (1987). of the Due Pro purpose or renders dangerous situation creates protect people cess Clause “was to danger.” (quo citizens more vulnerable State, from the ensure DeVito, omitted)); 686 tation Bowers from each other.” protected them State Cir.1982) (“If (7th 616, the state F.2d 618 196, general, at 109 S.Ct. 998. Id. danger from position a man in a puts therefore, Due Process does Clause protect fails to private persons and then inju liability on the State impose him, say that its role not be heard to it will by private inflicted acts of violence. ries much an active merely passive; it is as are, however, gen this exceptions to There him into a as if it had thrown tortfeasor First, may state officials be eral rule. claim is pit.”). Appellant’s snake liability they if fail subject to constitutional danger” upon such a “state-created based for individuals provide protection is, contends theory. Appellant That for this custody. “The rationale state of the Brunswick that the conduct simple enough: is when the State principle with Mr. Lek- escalating the confrontation its so power the affirmative exercise of danger that substantially increased the it ren liberty that restrains an individual’s wife and himself, violently toward his he would act and at him unable to care ders son. provide for his basic the same time fails

510

In order to establish a constitu is a matter for (quotation closer calls.” Id. violation, omitted). however, enough tional it is not and citation to show a causal connection between state falling Whether conduct within private action and an act of violence. this range” “middle reaches the level of process guarantee due does not en “[T]he shocking depends upon conscience body imposing tail a of constitutional law facts and circumstances of the individual liability whenever someone cloaked with case. As the Supreme recently Court ex Lewis, authority state causes harm.” 523 plained, conduct “that shocks in one envi 848, U.S. at 1708. The Appellant S.Ct. may ronment patently egregious not be so must demonstrate that the state acted with another, preserv and our concern with requisite culpability to establish a sub ing proportions the constitutional of sub process stantive due violation under the stantive due process demands an exact Supreme Fourteenth Amendment. As the analysis of circumstances any before abuse explained, requires Court has that the power is condemned as conscience § plaintiff challenged show that the shocking.” 850, Id. at 118 S.Ct. 1708. “egregious” action was so that it can be example, For in the pretrial context of de “arbitrary said to be the constitutional tention, requirement the fault for a due 846, sense.” at (quota Id. process may violation be satisfied show omitted). Court, tion Supreme in ing that deliberately state officialswere in standard, elaborating upon this has re different to the basic medical needs of de peatedly instructed that the Fourteenth Id.; tainees. see also v. Stewart Heflin protects only Amendment against abuse of 709, Cir.), County, 958 F.2d cert. power executive which “shocks the con denied, 998, 506 U.S. 113 S.Ct. science.” Id. (1992). contrast, L.Ed.2d 535 By in Lew is, 523 U.S. at 118 S.Ct. the Su sure, To be the “shocks the conscience” preme Court held that even “deliberate standard “no yard is calibrated stick.” Id. indifference” is insufficient to demonstrate minimum, 118 S.Ct. 1708. At a a Fourteenth Amendment violation on the standard requires showing beyond mere basis of conduct during high speed Williams, negligence. Daniels v. vehicle chase. 327, 332, 88 L.Ed.2d 662 (1986). “Far from an abuse of power, lack question “[T]he critical in determining of due ... suggests care no than more the appropriate culpability standard of failure to up measure to the conduct of a whether the circumstances allowed person.” reasonable Id. At the other end state fully actors time to po consider the spectrum, generally agreed it is consequences tential of their conduct.” Fourteenth liability Amendment will at- Moreland v. Vegas Las Metro. Police (9th tach to “conduct injure Dep't, 365, Cir.1998) intended to 159 F.3d 373 way unjustifiable some by any governmen- (reviewing circuits’ treatment Lewis de Lewis, cision). 849, tal interest.” 523 U.S. at explained, As the Lewis Court added). (emphasis S.Ct. 1708 “Whether deliberate indifference standard “is sensi the point of the shocking bly conscience employed only when actual delibera injuries reached when produced are 851, tion is practical.” Id. at 118 S.Ct. culpability falling within the range, noted, middle 1708. The Court for example, that following from something more than negli- “liability for deliberate in indifference to gence conduct, but less than intentional mate welfare upon luxury rests en such as ‘gross negligence’ recklessness or joyed by prison having officials of time to tion,” strongly suggests split- which upon the judgments, unhurried make reflection, largely making required. un decision was repeated second chance obli pulls competing complicated the deci- Many passed more hours before 853, at S.Ct. 1708. Id. gations.” 11.8 deploy the armored vehi- sion was made however, explained, further Court Indeed, Beyer deposition, in his Chief cle. circumstances demand unforseen “when to initiate a indicated that the decision precipitate even judgment, instant officer’s consulting was made after tactical assault enough to fails to inch close recklessness professionals and re- two mental health shock that spark purpose harmful from the officers on the questing input gover of the large ‘the concerns implicates that he dis- Beyer also indicated scene. (quoting Id. governed.’” nors and using gas. and cons of tear pros cussed the 662). Daniels, 332, 106 S.Ct. 474 U.S. at Clearly, testimony this demonstrates situations, high include which In such practical, was but only that deliberation chases, Fourteenth speed vehicle in fact at deliberation was that some effort only occurs when Amendment violation supported by made. This conclusion is and an “intent act with malice report, which noted that there was Callis’s 854, 118 1708. at harm.” Id. conclud- need for immediate action and no framework, we this Applying strongest points on “[o]ne ed that court that this case with the district agree of the authorities was ‘time.’” the side ‘middle-range’ between “falls within (Callis 6). at Rep. J.A. at 642 chases,” settings high-speed custodial for deliberation available to The time that, balance, on and likewise conclude deciding respond how to Beyer of review appropriate more standard “the ” 5 distinguishes actions this to Mr. Lekan’s at 69- indifference.’ J.A. is ‘deliberate cases in which actual case from those 18-19). (Dist. Although the Op. at Ct. to harm was re- malice and an intent conducting the police officers Brunswick Lewis, example, the entire quired. undoubtedly competing faced obli standoff seventy- a mere of events lasted course making pressures and intense gations 118 S.Ct. five seconds. 523 U.S. decisions, fa the facts viewed most their the vic- the officers observed 1708. When reveal that vorably plaintiffs to the high approaching at motorcycle tim’s actual deliberation a situation where make an in- forced to speed, they were waited five practical. chase. Id. at give decision to stantaneous initiate the first “tactical solu- hours to Lewis, 118 S.Ct. U.S. at although ments. the issue has never 5. We note that however, decided, settings, are not 1708. Custodial this circuit decided been cases from may only which officials have situations in “expressed doubt” as to before Lewis opportunity to "Like deliberate. a reasonable deliberate indifference standard whether the charged with oversee prison officials who are settings. Stemler apply in should noncustodial welfare, 856, 865, Florence, who ing State officials an inmate’s may denied, danger also Cir.1997), to citizens or enhance create cert. (1998). deliberation is position where ‘actual be in a 140 L.Ed.2d 936 Such 118 S.Ct. ” Butera, believe, (quoting doubt, 235 F.3d at 652 practical. has been resolved 1708) Lewis, Lewis, (ap U.S. at opinion which made clear Court’s in case plying indifference standard deliberate key whether actual delib that the variable is injured while private citizen was which practical, the claimant in is not whether eration operative police in in acting undercover custody. explained, as As the Court was in state that "officers vestigation where facts showed applies in custodial indifference deliberate plan the undercover opportunity to settings provide the had the settings because these care”). operation with judg- opportunity reflection and unhurried 853, Likewise, in lay S.Ct. 1708. C Other courts have found that an intent Birchwell, brook v. 199 F.3d 350 Cir. to harm required is where the police fire 2000), bystander injured we held that a upon escaping an suspect and inadvertent during police a shootout must show that injure ly hostages process. in the Chil “ police the ‘maliciously acted and sadisti dress v. City Arapaho, 210 F.3d cally very purpose causing (10th Cir.2000) (holding intent to harm’” in pro order to maintain a due required harm upon where fired hi Lewis, cess claim. Id. at (quoting jacked containing van hostages attempt in 1708). 523 U.S. at 118 S.Ct. We stop to van as it through drove series of explained that appro standard was roadblocks); Williams, Lee v. priate because the opportu “had no (E.D.Va.2001) (intent F.Supp.2d nity to or debate their reaction to ponder applied to harm suspects where armed the dangerous actions of the armed man” hostage took a attempting and were when approached he them menacingly van). escape in hostage’s in weapon with a opened and then fire. Id. case, however, stant Mr. Lekan was con 360; Moreland, see also 159 F.3d at tained in his house and by surrounded a 373 (holding that intent to harm standard vastly superior police presence. po The applied when police encountered a gun lice were never hasty forced to make a fight progress in in parking a lot where decision to use force in prevent order to 50 to 100 innocent people caught were in escape his into community. crossfire). Although Unlike the defendants pose Mr. Lekan did danger family, however, his Claybrook, Beyer and his Appellant’s version sug officers were not of the facts exchanging gunfire with gests Lekan at the time danger the fateful deci was immediate day sions of that were made. long as Mr. Lekan provoked.6 was not Albers, situation, Whitley 6. We note that although it had calmed some- (1986), what, 106 S.Ct. 89 L.Ed.2d 251 dangerous "remained and volatile.” Lewis, favorably which was discussed could upon Id. at 323. This based facts indicat- interpreted suggest be per- that, the more ing danger in addition to the to the missive “intent applies to harm” test even hostage guard, "several ... inmates were genuine when there is a issue of material fact ..., armed numerous inmates remained out- immediacy danger posed as to the by of the cells, side their and the cellblock remained in barricaded and armed individual. The Whit- Thus, the control of the inmates.” Id. accord- ley Court held that "intent to harm” was the Court, ing to the were confronted appropriate assessing Eighth standard for with an uncontained and pris- out-of-control Fourteenth Amendment violations in the con- case, contrast, on riot. In the instant 320-21, prison text of a riot. Id. at alone, threat came from Mr. Lekan and it is inmate, plaintiff Whitley, 1078. The an undisputed that Mr. Lekan was contained injured guards shotguns when fired into within his house and vastly surrounded opera- inmate-controlled cell block in an Moreover, superior police presence. guard being tion to rescue a hostage. held opinion Whitley suggests Court’s that its The Court concluded that the intent to harm reasoning may apply outside the institu- appropriate, though standard was even “the setting tional prison. Whitley evidence could be taken to show that the large Court based its part conclusions in on general quieted disturbance had down.” Id. at traditionally the deference prison afforded to 322-23, 106 S.Ct. 1078. maintaining discipline administrators in Nonetheless, 321-22, security, id. at inappro- we think it and was would be careful to priate Whitley holding limit its holding extend the as it defined the —insofar Initially, Whitley scope instant factually case. protec- Fourteenth Amendment distinguishable. Whitley prison empha- Court tions—to inmates. The Court ex- undisputed sized that the plained facts showed that that "[b]ecause this case involves

513 Farmer, 837, at effectively give the inference.” would To hold otherwise the infer any Having risk 114 1970. drawn licence to take free ence, an armed to act in a hostages in must act or fail lives of official with the situation, they as did long demonstrating as “reckless or callous manner standoff sadistically with the maliciously toward individual’s act indifference” court Cosme, harm. The district to cause intent v. Cruz rights. Landol-Rivera concern, that it explaining (1st Cir.1990). this same 791, noted 906 F.2d that, Mr. Lekan because “not believe did record, little From there is doubt defendants dangerous, the armed and Beyer drew the inference that that Chief by any order attempt to restore could Mr. Lek- aggressive might provoke tactics they long as did so means whatsoever dangerous in a manner to- respond an to J.A. at 69 the Lekans.” intend to hurt deposition, and child. In his ward his wife 19). (Dist. Op. at Ct. frankly explained that Beyer quite Chief Nevertheless, under even a violent possibility [of reaction] “[t]hat stan exacting deliberate indifference more throughout the entire crisis situa- existed has dard, Appellant conclude that tion, were concerned that that was so we material fact genuine issue of not shown a would J.A. at 393 happen.” in fact what the police conduct of to whether the 198). Beyer at also (Beyer Dep. shocking level of the conscience rose to the possibility indicated that he considered pre circumstances particular under the when evaluat- a murder-suicide reaction of has been indifference Deliberate sented. advisability initiating an assault ing the of recklessness, and subjective with equated vehicle, hoped he the armored but § to show that plaintiff requires aggressive his Mr. Lekan “would take disregards knows of and the state “official at 396-97 police.” out on the J.A. action health or victim’s] risk to [the an excessive 206-07). (Beyer Dep. Brennan, 511 U.S. safety.”7 Farmer v. record, however, from the It seems clear 1970, 825, 837, 128 L.Ed.2d 114 S.Ct. that further Beyer also knew that Chief (1994); Flor see also Stemler posed substantial delay and inaction also Cir.1997) ence, example, con- report, The Callis risks. indifference deliberate (applying Farmer’s balance, a strate- although, on cluded that claim Amendment standard to Fourteenth generally is the best stalling for time gy denied, setting), cert. in non-institutional has its hostages, stalling to reduce risks 140 L.Ed.2d U.S. undisputed and risks. own drawbacks (1998). Thus, must both “the official and draw- suggest that these risks facts the inference facts from which be aware of decisions Beyer’s into Chief backs factored that a substantial risk could be drawn deploy the tactical assault and exists, to initiate a he must also draw harm serious suggesting offi- that "the defendant pretrial evidence than detainees prison inmates rather exposed to informa- being had been cial sued liberty we persons enjoying unrestricted or concerning and thus 'must have the risk tion proper answer ... imply nothing as to the Farmer, 511 U.S. at it.” known' about by holding, security prison context outside the Moreover, concept "the 114 S.Ct. 1970. do, the Due these circumstances as we that in enough knowledge is familiar constructive greater respondent no Clause affords Process indifference’ would term 'deliberate that the Cruel and Unusual protection does the than force, not, preclude a scheme of its own Id. at 327. Clause.” Punishments from a conclusively presumed awareness 840, 114 S.Ct. course, Id. at risk’s obviousness.” subjective awareness an official’s 7. Of circumstantially by 1970. may proved be risk ordering vehicle. Prior to the armored Cases other from circuits dealing assault, Beyer first Chief consulted a men- unsuccessful rescue efforts in are tal professional health on scene who See, the structive. e.g., Salas v. Carpenter, him informed that the threat level was (5th Cir.1992); 980 F.2d Andrews high. Beyer explained Chief further that (1st Wilkins, v. 934 F.2d Cir. perceived he that his officers tiring were 1991). Salas, 302-03, In 980 F.2d at and potentially losing edge, their which Fifth Circuit addressed a substantive due it could made more difficult to con- process claim asserted on behalf of a wom duct successfully operation a tactical later. who killed her husband a after addition, Beyer In Chief had some reason day-long standoff with for that a tactical confidence assault could courthouse where the victim worked. succeed, upon knowledge based his of the police, equipped hostage with a negotiating past City’s success emergency of the team. team, team and a SWAT were the first to Moreover, it seems from the record that respond after the husband his stormed agreed at everyone that there time wife’s office and took her hostage. Before little, if any, prospect for successful city police however, could deploy, resolution to the through negotiation. crisis county leave, sheriff ordered them to as Mr. Lekan made no demands and was not serting jurisdiction his exclusive over communicating coherently negoti- with the security. courthouse Id. at 302. The ator. grim Given the prospect negotia- department sheriffs possess did not

tions, it was Beyer reasonable for Chief experience, same capabilities, equip or conclude a tactical solution would be ment for dealing with hostage situations required eventually. that were possessed by city police. against Viewed backdrop, do not After unsuccessful negotiate efforts to a think it would appropriate say be resolution, the gunman killed his wife and Beyer Chief acted with callous indifference then himself. The Fifth Circuit concluded injury to the risk of to Mrs. or her that the actions of the sheriff did rise Instead, son. appears it Beyer that Chief to the level of conscience-shocking behav a decision required made a balancing ior. Id. at 309. The Court reasoned presented by risks aggressive action the did not “cut officers off all avenues of against the presented risks by further de rescue ... without providing an alterna lay. This is not a situation where the Rather, tive.” Id. at 308. the officers police deliberately refused to take obvious rescue, “controlled the conduct of a steps that would decrease the risk or aban considering factors such safety as the doned the in dangerous Lekans environ those involved.” Id. The mere fact that ment. See Indep. Dallas Sch. Leffall department sheriffs possess did not Dist., (5th Cir.1994). In the best equipment available did not ren stead, Appellant challenges Bey der the decision to handle the standoff er’s among choice necessarily risky alter conscience shocking. Id. at 310. native tactics in undertaking an effort to Andrews, Mrs. rescue Lekan and her son from dan F.2d at the D.C. ger. Merely demonstrating Circuit that Chief addressed a Fourteenth Amend- Beyer incorrectly assessed ment claim competing asserted on behalf of suspect may risks negligence demonstrate on Chief who drowned while attempting to evade Beyer’s part, but it is not enough to the police. show The suspect dove into a chan- disregard callous safety of Mrs. nel being after confronted a police offi- her son. Id. drown, cer. suspect When the began to that to important remember risks. It is to assist boat private a hailed officer the prob- mental serious Czajkowski, suspect that the Seeing man. the and lems, the shot Jordan unconscious, the boat told previously on had a woman him, in to save becom- to dive demands that were making she needed officer had been hindsight, that she In the officer bizarre. increasingly informed ing and Id. The rescue. negligent such a to execute were police trained the state maybe into the go to her not directed path, officer a have taken different and should man was water, drowning the because con- applicable not the negligence but dangerous. be and could prisoner escaped standard. stitutional the officer’s that concluded The court Id. Id. citi- private the interfering with action of of the light facts in Viewing the instant a not demonstrate effort did rescue

zen’s cases, Ap- the that we conclude foregoing safety. suspect’s for the disregard reckless to facts sufficient has not shown pellant it is that explained court Id. at 1271. indifference. a claim of deliberate support a state “for violation constitutional not a Mrs. rescue,” Here, to rescue attempted police the ineffectual attempt an to officer private part the from a threat negligence on and her son mere therefore and the that there was undisputed rescue in the conduct It is violence. of the officers course any Amendment and danger, way a Fourteenth out not state no clear did Moreover, the significant court at 1270. entailed police Id. the pursued violation. entitled, best, if not were police has shown at explained Appellant, “the risks. citizen on private obtained prevent [the obliged, Beyer should have that Chief the her life in endangering from boat] mental health the from the information more at Id. effort.” rescue police of a may course and have scene on the professionals 1271. the risks assessment of an incorrect made indifference, how- Deliberate as a result. Houstoun, 164 Kepner v. Finally, in con- ever, police that the act requires (E.D.Pa.2001), ad- the court F.Supp.2d 494 of serious known risk of a disregard scious closely analo- situation a factual dressed in which this one such as injury. In cases Kepner, an case. instant gous risks, plain- a among must choose diagnosed officers also a who was individual aimed “knowingly that employer must show former tiff took his schizophrenic course opted a unreasonably” barricad- and hostage person and another substantially great- A two- office. that entailed employer’s conduct himself in ed ultimate- available alternatives. than the ensued. The risk day standoff er total assault, 1970. Farmer, a tactical undertake U.S. at decided to ly agree became may demands hostage-taker’s hindsight, we after the Although, ill-advised, As increasingly erratic. were made the decisions shot office, hostage-taker negli- Beyer was stormed that Chief may agree also Id. 497. hostages. killed himself one inform better failing gent conduct of decision, The court found would not making the before assault did undertaking tactical callously he the conclusion lead to either under conscience not shock injury the risk disregarded indiffer- or the deliberate intent to harm family. theAs court Id. at 500. ence standard. better allegation Appellant’s

explained: tech imaging thermal such as equipment, had surely grave action While their improved which could nology, grave had risks, action also taking no chances assault, successful would correctly granted summary judgment have been available to Beyer if he the defendants toas the Appellant’s Four- had longer waited to order the assault is teenth Amendment claim.

similarly A unavailing. state official’s de-

cision to initiate a rescue with suboptimal Municipal C. Liability equipment sounds in negligence, not delib- Having concluded that the Appel Salas, erate recklessness. See 980 F.2d at lant has not shown a genuine issue of Indeed, 309-310. case, in the instant material fact any as to of the asserted Appellant has not contradicted Bey- claims, constitutional we therefore con deposition er’s testimony that he had no that clude the district court dis correctly way of knowing that thermal imaging missed the Appellant’s municipal liability equipment would later become available. Where, here, claims. a municipality’s Therefore, his decision to act without the liability is on alleged the basis of the un benefit of such equipment cannot be said constitutional actions of employees, its it is to be deliberate. necessary to show that employees in There can little be that doubt the facts flicted constitutional harm. City Los of of the instant case show that the actions Heller, Angeles v. 796, 799, 475 U.S. 106 of police were, instances, in many ill- 1571, (1986) S.Ct. 89 (“[N]ei L.Ed.2d 806 advised and poorly executed. Like the ther Monell Department [v. Ser Social of court, district arewe not convinced it City York, vices New 658, 98 of of was necessary prudent or to undertake 2018, (1978)7 56 L.Ed.2d 611 ... nor tactical only assault five hours into the any other of our cases authorizes the standoff Lekan, with Mr. particularly award of damages against a municipal cor since he had all accounts retreated poration based on the actions of one its from the confrontation did and not appear officers when in fact the jury has conclud posing be an immediate threat his ed officer no inflicted constitution family or the police. experts in this harm.”). al Because no such constitutional case seem to agree the district court violation has shown, been we affirm the that “[a]rmed tactical solutions are radical district court’s decision granting summary strategies only used as a last resort judgment on the Appellant’s hostage situations,” and that “[u]se it municipal liability claim. premature.” here was (Dist. J.A. at 70 12). Op. Ct. at 19 n. Moreover, as- D. State Law Claims sault itself was poorly planned, ap- and it pears We that the also hold that Appellant’s police lacked the personnel state law claims equipment carry were properly it out dismissed. successfully. Initially, The decision we conclude deploy an that the Appellant’s armored vehicle seems claims particularly imprudent for assault and battery, when con- intentional fronting paranoid infliction of schizophrenic, distress, if emotional even and civil the vehicle previously had been conspiracy used suc- were waived by the Appellant’s cessfully in dealing with individuals failure to who address them in his brief to this were not mentally ill. Troubled as court. Schebil, we are See 365, Ahlers v. 188 F.3d by the (6th conduct of Cir.1999) 374 (finding plaintiffs stand- ap off, however, imprudence poor pealing execu- summary judgment §in ac tion do not rise to the level of constitu- tion had waived a number of their state tionally arbitrary abuses power. We law tort claims failing to address them therefore conclude that the district court briefs). their appellate “Federal Rule is if ... such risk of others safety 28(a) requires Procedure Appellate than that which substantially greater ‘a statement include brief appellant’s review,’ negligent.” his conduct [a]n to make necessary presented the issues Dep’t, Village Police presented.” Fabrey each issue McDonald on v. argument’ Co., (1994) Air Lines 639 N.E.2d Korean Bickel 70 Ohio St.3d denied, Cir.1996), omitted). already cert. As we (quotation 136 L.Ed.2d Appellant’s U.S. that the believe we explained, does appeal on brief (1997). Appellant’s cul- establish does not the facts version of these any of mention specifically There- negligence. rising above pability any argument claims, it contain nor does decision fore, district court’s affirm the determination court’s why district as to as to summary judgment to award appropriate judgment summary death claims. wrongful Appellant’s Appel in error. claims on these Br. at section, Appellant’s argument lant’s III. CONCLUSION deci court’s the district that suggests should the district court’s sum, claims law In we AFFIRM the state dismiss sion to argu the Defen- the same upon summary judgment of grant based be reversed by con Appellant’s asserted as to the on all claims asserted dants-Appellees ments court’s district The claims. Plaintiff-Appellant. stitutional the its clearly based however, quite opinion, upon claims law the state as to

conclusions dissenting. HULL, Judge, District its constitutional than grounds different the I believe I dissent. Respectfully, not ad are grounds These rulings.8 quali- exigent circumstances of issue brief. Appellant’s in the anywhere dressed jury. for the issues immunity were fied them. consider Therefore, decline to ad- O’Brien, court district the Citing Appellant’s the liberally, Read circumstances exigent of the issue dressed court’s district address does brief as follows: as to judgment summary of grant only where exist circumstances Exigent it chal claims, as insofar death wrongful conse- and serious “real, immediate conclusion court’s the district lenges were certainly occur ... would quences were and his son deaths Mr. get action to postpone officer by the defendants. caused proximately O’Brien, F.3d a warrant.” political aof Nevertheless, employees as omitted); (citations Cir.1994) are defendants subdivision, the individual 2091. Welsh, at their immunity unless statutory entitled then, Mr. issue, is whether The with malicious were or omissions “acts family to his a threat posed or in a wanton faith, or in bad purpose, real and immediate. both Ann. Rev.Code Ohio manner.” reckless be- disturbing particularly is This issue (Banks West 2744.03(A)(6)(b) Baldwin § po- [sic] the Brunwick way of the cause em 2001). recklessness for The standard the ‘sit- to handle chose department lice “[t]he holds that courts by Ohio ployed officers two They sent uation.’ disregard of in reckless is conduct actor’s conclusion, exigent was its pass claim is the observation exception to this one 8. The officers’ warrant- justified the circumstances trespass discussion court’s district conclude we also 24-25). entry. Because less (Dist. Op. at Ct. at 75-76 J.A. claim. a matter existed exigent circumstances by district court asserted grounds sole claim. this law, court on district we affirm the tres- summary judgment on granting (one posing house as civilians dispute This of fact is further bolstered jeans sweatshirt) on the off chance report of William Callis which is that Mr. Lekan —a paranoid significant known because he was hired by the might let these in to “talk strangers defendant of Brunswick to conduct an his wife.” -A stable person independent would review In incident. have let them in. To addressing think their exigent circumstances, chances al- of entry might increase after though majority unsuccess- finds that this was a fully attempting hostage situation, to deceive him and then report his prepared claiming defendants, to be officers was simply explains Callis’ why foolhardy. this incident did not could have involve a hostage chosen situ- any other, ation: number less confrontation-

al, ways to check on Mrs. Lekan her Upon situation, reviewing this I am of son. Although this particular incident opinion that the Lekan matter was appears to triggered the unfortu- hostage not a A hostage situation. nate followed, series events that person defined as a held and threat- Court must determine whether exigent subject ened to force the fulfill- circumstances existed the precise mo- ment of certain substantive demands ment the officers entered the house. party. on a third situation, there was not by a threat Mr. Lekan to Although the district court cites O’Brien harm son, Mrs. or Lekan their nor was for the definition of exigent circumstances, there a substantive demand Mr. Lek- and concludes that this is a decision the Therefore, an. appears it that Beverly court, O’Brien also teaches that whether son, Lekan and her Lekan, John T. were exigent circumstances existed “is a ques- not actually hostages, but were victims tion for jury that, the provided given the of Mr. Lekan’s actions. They in were matter, evidence on the there is room for a the residence when Mr. Lekan commit- difference opinion.” of Id. at 997. In the ted his criminal act and he afforded us, case before the district court expressly them no opportunity to leave. recognized existing dispute material of Many hostage situations nego- involve a in regard exigent circumstances as fact process tiation bargaining ap- —or follows: proach meet certain demands. In —to Defendants contend exigent circum- situation, this there were no substantive justified stances entry warrantless demands as Mr. Lekan did want because Lekan presented Mr. an imme- anything the provide. authorities could diate threat to his family. dis- Plaintiffs He already what had he wanted —his agree that, on the basis prior to visiting family and he already was in his own home, defendants admitted there home, (emphasis in original). was no probable cause arrest Mr. Callis’ also concludes that there were a Lekan no exigent and ex- circumstances options number of open to the defendants Further, isted. the officers never saw a which would also negate exigent circum- crime being committed, nor they did stances: hear Mr. Lekan anyone. threaten However, after reviewing matter, this I upon Based this fact, dispute material of can’t help but if wonder there was not a there is room for a of opinion difference on way better of conducting the “welfare the issue exigent of circumstances and this check” at the Lekan Perhaps residence. issue was a jury. the police could have asked a relative of to arrest threatened after officers accident at home her telephone

Beverly Lekan’s of vehicle not return if she did her telephone, on she was once and abusive, boyfriend. intoxicated her verify to her to speak could minutes after five occurred identity accident fatal well. The were her son and she boyfriend’s to her her returned Lekan’s officers Mrs. numbers telephone and scene. left the vehicle, boyfriend her and to the authorities. available was relatives Stemler, that Black court concluded this In organization visiting nurses offi- defendant custody of the in the telephoned was Lekan for Mrs. caring was they had affirmative- sense that Ewolski, on the cers mother, Helen her liberty, her her of deprive ly her that acted to advise 81 to March morning of refusing to merely negligently nurs- rather than to a go requesting Beverly was her. protect act to investiga- further Perhaps ing home. have determined could

tion in which Chief to the manner regard allowed status Lekan’s health standoff, district Beyer conducted between the confrontation in footnotes summarizes court some- avoided until be John Order: Opinion and Memorandum posses- John’s about be done thing could radical solutions are tactical 12 Armed condition. his mental of firearms sion last resort only as a used strategies there finds majority Although the it here Use of situations. hostage officers immunity for the com- Beyer qualified Police premature. opinion case, unpublished in the after only five hours plan this menced the Laxton, F.3d still Carpenter There was began. the standoff (6th (Tenn.)), held that it was resolution peaceful WL hope for the existence surrounding re- completely if the had facts time. Mr. a and are in dispute, was exigent circumstances There from confrontation. treated than one more draw or jury family could his rational that he harmed no evidence facts, there conflicting them, the he was from and inference harm to intended fact of material was genuine issues There are also at officers. shooting are not the officers the carry whether or to out regarding manpower insufficient Therefore, immunity. time, the and qualified to this successfully entitled plan a regard to summary judgment equip- have the yet I believe did not defendants inappro- violation was location Fourth Amendment the determine ment to circum- exigent a addition, had plan the issues the priate and In residents. immunity should qualified It called stances of failure. probability high jury. to a with through submitted the house have been run to officers Lekan looking Mr. weapons loaded exces plaintiffs’ the I also believe the through creating diversion after to the gone have claims should sive force unclear It incendiary devices. use of con case, court the district this jury. In had have done police would what because no seizure there was cluded that in close been discovered Lekan Mr. Mrs. intend to arrest Beyer did not Chief Also, in- family. his proximity son, Mr. because her Lekan or house, a fire devices set cendiary How his own home. himself barricaded to stop to had then officers which the Florence, 126 ever, in Stemler put out. denied, Cir.1997), cert. F.3d 856 to this vehicle Beyer ordered 1796, 140 L.Ed.2d 1118, 118 S.Ct. U.S. negoti- informing his chief scene without a car was killed (1998), Black Conni ator, Thus, Sergeant Solar. the vehicle armed officers with the armored vehicle appeared on the scene Solar while their surrounded home. Consequently, I still attempting negotiate to peaceful believe the Lekans were in the custody of resolution of the standoff. This could defendant officers in the sense that the only confirm paranoid Mr. Lekan’s officers sus- had affirmatively acted deprive picion that all were out of them get of their liberty. him, and that he could not trust them. Taking the evidence in a fight most fa- Although the loudspeaker vehicle’s or- vorable to plaintiffs, given the advice Mr. pick dered up the tele- detailed by Callis that Beyer Chief had phone or come house, out of the from mental professionals health at the phone line had been disconnected —fur- scene, the evidence in this case would sup- ther reinforcing Mr. paranoia. Lekan’s port finding by the jury that in conduct-

And while an armored vehicle circling a standoff, ing the Beyer Chief did not act home, flooding it with light, and caving with “objective reasonableness.” There- the walls in might cajole a sane person fore, summary judgment should not have into submission authority, this granted been in regard to plaintiffs’ strategy was riskier with an unstable Fourth Amendment claims. person such as Mr. Lekan. alternative, In the even if there nowas addition, the report Callis, of William seizure, the defendants could been in regard to his interview with Chief Bey- found to have used excessive force under er, indicates that the electric power to the analysis of a Fourteenth Amendment Lekan home was cut off manipulate “to Claim. The district court concluded that environment,” Mr. Lekan’s “the lack Beyer Chief was held to a indif- deliberate power allowed to control the ference standard in regard to his supervi- area.” Mr. Lekan’s access to the outside standoff, sion of the and under the facts of was also restricted by open telephone fines ease, this claim could not sum- survive the negotiators between and the Lekan mary judgment plaintiffs because the could residence. According to report, Callis’ it not show that he was deliberately indiffer- Beyer’s belief that use of the ent to an obvious risk of harm actually armored vehicle would show Mr. Lekan suffered plaintiffs. potential “enough force get him to sur- upon Based the factual circumstances of render,” and force was also by shown the case, this Beyer Chief had a reasonable many armed officers who were opportunity to and deliberate consider var SWAT, members of the teams that sur- ious prior alternatives electing a course the

rounded Lekan home. action, of and his would actions be deemed Construing the facts in fight a most shocking if they were taken conscience— plaintiffs, favorable to the it is obvious that with “deliberate indifference” towards the all the members of the Lekan family were plaintiffs’ federally protected rights. Dar by affected the actions of police in the Park, rah v. City Oak of controlling home, (6th communications Cir.2001). to the in Viewing the facts sum the control of their by environment cutting marized by the district court in fight a off power the to the home which left them most favorable to the plaintiffs, I believe a without heat and electricity, by the intro- rational jury could find that Beyer’s Chief duction of gas tear into their by home course of action was deliberately indiffer who officers used ferret rounds fired from ent a jury because rational could conclude shotguns, and the show of force as that there anwas obvious threat of physi- when fed jurisdiction (and pendent of exercise potential the the Lekans injury to cal trial. very before the dismissed injury was issues are eral physical of threat check,” FDIC, “welfare Cir. F.2d the officers’ premise Gaff v. knew also Begley Chief place). 1987). However, first court in this in the district his men- and that paranoid Mr. plaintiffs’ each did address case behavior unpredictable condition and tal to the finding merit no claims after state in re- contend with major factors were these I claims. believe federal plaintiffs’ of spite incident. the entire gard have been dismissed should claims state advantage he did take knowledge, this prejudice. without professionals health of mental the advice CONCLUSION In addi- at the scene. present were who herein, on based stated For reasons told that tion, specifically Begley was case, I be- in facts this disputed material in physical gas could result of tear use the defen- summary judgment however, lieve Lekan, ignored he to Mrs. harm federal deliberately plaintiffs indif- regard her and was dants risk to her. danger to to the was inappropriate, ferent and state claims have should of the trial court judgment immunity was also qualified The issue and remanded. reversed been Stemler, F.3d addressed should held that defendants which law clearly established known under to force duty Black they owed had taken after officers way in harm’s

her Black deprived which action affirmative YATES, Raymond Debtor. B. In re case, be- Similarly, in this liberty. her confined had been the Lekans cause Trustee, Hendon, T. William liberty of their deprived home their Plaintiff-Appellee, situation, defendants standoff estab- clearly under have known should Yates, M.D., Profit Raymond P.C. the Lekans they owed B. law that lished Yates, Raymond a situation Plan; them into B. Sharing not to duty force harm. suffer they Defendants-Appellants. would Trustee, where in a case, taking evidence In this No. 00-6023. to the plaintiffs, most favorable light Appeals, Court of United States finding by support would evidence Circuit. Sixth standoff, Chief conducting the

jury reason- objective not act with Oct. 2001. Beyer did Argued: deliberately he ableness and/or 19, 2002. April Filed: Decided and injury to physical threat to a indifferent Banc Rehearing En Rehearing law, he Lekans, a matter and as 20, 2002.* June Denied: Ac- immunity. qualified entitled to not judgment summary I cordingly, believe regard granted have been

should force claims. excessive plaintiffs’ causes state plaintiffs’ regard recognized action, has Circuit Sixth court’s disfavoring a district rule general * granting the favor of voted in would Judge Judge, Nelson a Senior As rehearing. petition for petition. eligible to vote on so, Judge Nelson to do able Had he been notes the negotiator, Agent/Hostage William M. Involving John inci- of Incident in the “Review who were involved officers Ohio, Lekan, Brunswick, April March many of the state- agrees with dent. He the benefit of Summary,” that he had in the and conclusions contained ments four-hundred-page reviewing almost vio- summary, and notes numerous Callis pre- the incident which was report about police cus- generally accepted lations of Depart- Police Brunswick pared to the initial regard practice tom and cooperation also had the limited ment. He and the result- entry of the Lekan home personal- and he police department, addition, report de- In his ing standoff. and indi- numerous officers ly interviewed Po- inadequacy of the Brunswick tails the Mrs. Lekan about including viduals training policies and Department’s lice incident. emotionally regarding encounters with persons. disturbed summary, In Callis addressed his dur- place which took operations” “tactical standoff,.and ing concluded: II. ANALYSIS above, I summary, I have set forth as A. of Review Standard matter could have been don’t believe this traditional form through resolved grant court’s We review district negotiations. I believe hostage to the defendant summary judgment path of self out on a John set de novo. Aiken v. Mem officers Puzella destruction when he shot Officer (6th Cir.1999), 190 F.3d cert. phis, Friday afternoon. I believe that on that denied, 1164, 145 528 U.S. willing “protect- die John Lekan was (2000). Summary judgment L.Ed.2d 1075 and, ing” home and his son because his dispute no proper only when there is disorder, I think he be- of his mental of fact and one question to a material doing just protect- he was lieved judgment that — as a matter party is entitled to a himself, home, family. and his ing his 56(c). Viewing all of law. Fed.R.Civ.P. 67). (Callis Report at 514 Callis facts and inferences drawn therefrom J.A. nonmovant, three criticisms re- noted that he had light most favorable to gard operations: to the tactical whether this court then determines presented is such that a reason entry into the evidence 1. I believe the tactical Aiken, jury party. too could find for that Lekan residence was conducted able (citing at 755 Matsushita Elec. soon into the stand off. Corp., v. Zenith Radio Indus. Co. try to 2. I believe it was a mistake to 574, 587, 89 L.Ed.2d 538 to over- use armored vehicle (1986)). whelm John Lekan into surrender- ing.

Case Details

Case Name: Emil Ewolski v. City of Brunswick

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 18, 2002

Citation: 287 F.3d 492

Docket Number: 00-3066

Court Abbreviation: 6th Cir.