*1
(1975).
896,
suggеstion,
Ed
vet’s
the Board did not limit its
98,
330 N.E.2d
Cf.
v. Florida
Corp.
DeBartolo
ward J.
condemnation
application of the
order
Gulf
Council,
Bldg. and Const. Trades
Coast
portion
building
of the
that was later
568, 575,
108 S.Ct.
485 U.S.
Board,
upheld by
demolished. As
(“[W]here
(1988)
an other
L.Ed.2d 645
condemnation
order
cited
violations
of a statute
acceptable
wise
construction
throughout the structure.
JA 121-24
prob
raise serious constitutional
would
roof, roof raft-
(listing as deteriorated the
lems,
construe the statute
the Court will
(load
ers, sheathing, roofing,
bearing
walls
....”);
v.
problems
to avoid such
Clark
bearing
as
and non-load
as well
interior
381-82,
Martinez,
543 U.S.
exterior),
floors,
deck,
studs,
wall
floor
(2005) (“[O]ne
of the
ous constitutional III. not, inter provision other does is best vesting jurisdiction in the Hous preted as reasons, For these we affirm.
ing Municipal of the Cleveland Division courts, “exclusive” of other state
Court not exclusive of a federal court other
but jurisdiction properly exercising over
wise 1901.181(A) not, in
the case. Section does
short, an to the district pose impediment jurisdic supplemental exercise of
court’s
tion.
C.
Davet, finally, that even if the argues jurisdiction court retained over the
district counterclaim,
city’s granting it erred in city “a summary judgment to the because BING, through J. its Estate William disputed material issue of fact” remained BING; E. Bri Administrator Thomas [building] contin- “as to whether Davet’s Bing, through Administrator pose ued to an imminent threat” once Bing, Plaintiffs-Appellees, Thomas E. 2- partially Davet Br. at demolished. however, argument, ignores This scope of the condemnation order as well WHITEHALL, OHIO; OF CITY “preclusive properly given effect” Department, Police Whitehall ruling building the Board’s war- Defendants, Contrary Da- ranted condemnation. *2 Showalter, al., et Defendants-
Mark
Appellants.
No. 05-3889. of Appeals,
United States Court Circuit.
Sixth
Argued: April 2006. Aug.
Decided Filed: *3 Reibel, Appellants.
for Linda Leah Wor- Ohio, thington, Appеllees. for ON Landes, BRIEF: Jeffrey Mark D. A. Stankunas, Isaac, Brant, Ledman & Tee- tor, Columbus, Ohio, Appellants. for Lin- Reibel, Ohio, da Leah Worthington, for Appellees. SUHRHEINRICH, GILMAN,
Before: ROGERS, Judges. Circuit *4 ROGERS, J., opinion delivered the of which, SUHRHEINRICH, J., the court in joined. GILMAN, 572-74), (pp. J. separate delivered a concurring opinion. OPINION ROGERS, Judge. Circuit interlocutory appeal This is an seeking reversal of summary the district court’s judgment order denying qualified immuni- ty to the police defendant officers. We in part part. reverse and affirm in evening On the in question, decedent gun William fired a into air and ground home, into the near his which prompted telephone witnesses police. Upon Whitehall arriving scene, learned from witnesses that Bing had retreated into his home. police, The up by backed the S.W.A.T. team, Bing’s surrounded attempted to communicate Bing, and subse- quently tried to force him using outside pepper gas. Eventually, the S.W.A.T. team invaded the Bing. house and killed raid, During employed a flashbang device that burned the house down.
Bing’s estate and his brother Brian brought this suit under the Fourth and Amendments, Fourteenth 42 U.S.C. Landes, Isaac, 1983, 1986, 1988, §§ ARGUED: Mark D. and against state law Brant, Teetor, Columbus, Ohio, Whitehall, Ledman & City of the policе depart- claim, deadly summary judgment force ment, police officers. individual and various interlocutory to that claim. properly to this denied as claims relevant officers violat- allege appeal clearly rights when established
ed I. warrant, home without they entered his 14, 2002, sometime in the On October by employing pepper force used excessive gun evening, William fired his into devices, unreasonably frighten air ground and into the they shot and deadly force when used away property group from his of minors him, destroyed unreasonably killed taunting him. Around 6:30 who been they burned down property when p.m., Whitehall arrived the offi- court denied house. district neighborhood, responding reports summary judgment on the cers’ motion for neighborhood. shots fired in the The ini- immunity genu- because basis radio, tial heard over the report, require fact exist and ine issues of material juvenile wearing clothing said that red interlocutory a trial held. This be weapon. had fired a went to appeal followed. Bing’s neighborhood investigate. Peo- part. The officers lawful- reverse We street, ple including group de facto house arrest of ly effected a *5 juveniles, Salyers directed Officers house, despite they his surrounded A Bing’s Adkins to house. crowd was warrant, Bing’s obtaining a because Bing’s in gathered front house. The neighborhood, among firing of shots in that people police the street told the the circumstances, dangerous created a other reported gunman was inside the house and reason, police the the exigency. For same reported The minors in the street armed. not need to obtain warrant before that had shot at to Detective Grebb Moreover, entering police house. police called the to neighbors them. Other gas and a reasonably employed pepper report after the initial complain about attempt device in their force of shots fired. Assuming police’s him that outside. up perimeter The officers set around flashbang device that set use of a second Bing’s people house within minutes. The his constitu- Bing’s house on fire violated that Salyers in informed Officer the street force, free from excessive right tional to be intoxicated reported gunman appeared “clearly right in this context was not that he come out of the had However, the district court established.” shot,1 and returned into the house. fired a summary judgment with properly denied Salyers retrieved his subsequently Officer deadly respect to the claim of force with shotgun police protec- from his car “[f]or If, shooting Bing. as the regard to the nearby. up position tion” and took Offi- unarmed posited, Bing district court was he said in Salyers shotgun, cer took out his the home and did after the entered he felt that his life deposition, his because any they manner not threaten them report potentially danger, given was violated his clear- approached, officers fired. of shots right not to be attacked with ly established officers, therefore, community’s safety, Fearing en- for the deadly force. The Bing’s neighbors to evac- immunity police-shooting police from instructed joy no however, Bing ground. According complaint, into the shots, two one into the air and another fired homes, neighbors but the p.m. uate their re- 8:30 Approximately eleven team in- presence neighbors ultimately fused. The members responded. The level of police’s creased the concern. In team up S.W.A.T. set a command center Bing, contact attempt had about nine up Bing’s houses from resi- dispatcher call telephone. Sgt. Brandeberry dence. remained at the attempt making The initial contact with command center with hostage negoti- meant, phone ators, via according to Lieutenant Zitsky, Hostage Negoti- Forbes, “him policeman, get one to come out of ator and Officer Showalter. the residence so we could talk about what deposition, Sgt. his Brandeberry stat- happened.” Bing’s phone busy. line was ed that the “first thing” upon he did arriv- time,
Around the same ing the command center was “[a]t- they checked to see if to Bing’s been tempt[] gather intelligence from the residence before. officers learned perimeter patrol officers as to what had been called to had, resi- transpired what had far.” thus past dence in the he had fired officers, perimeter apparently not relying past. Salyers shots Officer in his on the initial report, radio told Bran- deposition said of this new information: deberry that Bing had fired his weapon “It definitely changefd] the assessment. neighborhood “at” children. Sgt. Brande- It us that there definitely [told] [were] berry believed, also stated that he from weapons the house and that [Bing] has arrival, the moment of exigent used them in the past.” perceived circumstances it unnecessary made to seek danger prompted of the situation the offi- a warrant. certainly “[An][a]rrest would go cers to decide not to in immediately, [Bing] have been made had made himself according Salyers. to Officer “That’s com- present Sgt. for it.” Brandeberry said go mon sense. You don’t running into a that he felt that there was a “possibility” *6 somebody’s shooting.” house where danger immediate people outside Bing’s Bing house. “had pro- his show[n] windows, Through the Salyers Officer pensity to willfully individuals,” shoot at he Bing moving could see from room to room. explained. plaintiffs’ lawyer Sgt. and Salyers yelled Officer at Bing to leave his Brandeberry had following exchange gun in the house and walk out to the during deposition: his driveway with his Bing hands the air. Q. ...
ignored talking we’re about Salyers, maybe Officer Salyers but con- three and a half period hours. In that twenty tinued for аbout minutes to shout you any did see danger to Bing his demand that others? surrender. Accord- ing to the depositions, officers’ it was their A. always There is that danger to oth- intent Bing to arrest the moment he came ers. He is an armed individual who out of Bing his house. When refused to already has fired at shots individuals. out, Sgt. come Allen decided that they Q. In this three and a half period hour would have to take extraordinary more talking we’re about what was measures: he called in the S.W.A.T. team. your plan for Bing? Mr. A. It my hope[] that he scene,
The S.W.A.T. team would arrived at the pick up phone either and talk to according Sgt. Brandeberry, its com- mander, eventually gas us or bring at would approximately p.m., 7:30 about him may out or he give up an of his own hour after the first officers arrived. volition. Salyers scene, Officer left the changed into gear, S.W.A.T. Q. returned before plan So the was to him. arrest using Sometime after the first series of Yes, A. ma’am. canisters, Martin, Sgt. a gas S.W.A.T. fired, or shots on the shot Q. Based leader, team authorized the removal of original report the shots on the based Bing’s battering door with a ram. Remov- fired. had been ing permitted police the front door A. Correct. a spotlight shine into the house so that they happening could see better what was broke one p.m., At about 8:43 p.m., Around 10:20 Brande- Sgt. inside. tool and special windows with berry authorized the use of a “bag phone,” the house a threw into device. Detective Grebb then used the a mi- device with portable communication flashbang near the bedroom window. line between two secure crophone rang phone Bing allegedly responded to this first receivers. flashbang by firing shot the officers many Bing times but answer. officers, clearly. According to the heard Bing remained holed p.m., Around 8:54 Bing did not know whether had shot incommunicado, decid- up and so himself, random, They at or at them. him to leave pressure to increase the on ed consequently did not raid the house imme- by firing pepper gas into the the house diately bag but instead reinserted the the windows. The through house 11:05 phone p.m., at about time proceeded to break the windows bedroom, having after removed it for a pepper gas house and fire six canisters reinserting bag phone, time. While into the residence. Salyers Offiсer claims that he saw a bullet hole near the window and surmised from p.m., Bing Around 9:02 heard at bag phone this fact that had shot them. De- coughing gagging on the Bing tective Grebb also saw the hole and sur- microphone. coughing, After driveway mised that had shot the officers. came out the side door into the Bing retreated into the carport. under the concluding After had shot door, however, when house and closed his them, decided to enter him approached the officers to effect p.m., house. A little before 11:20 police fired at least two more arrest. The Bing’s house. De- S.W.A.T. team raided each, gas series of six canisters but the deposition explained in his tective Grebb *7 Bing never forced out of his house. decision to raid the house as follows: the Q: you Sergeant talk to Brande- Did p.m., 9:45 Rich- p.m. Between 9:30 and why you couldn’t berry at all about Finton, Bing’s ard friend and Alcoholics just [Bing], maybe outwaited sat have Anonymous speak sponsor, tried night? there all public-an- a cruiser’s Bing through he A: have done that had We would system. Sgt. Finton told nouncement offi- through not shot the wall an Brandeberry private Bing in that “was cers ..... or alcohоlic” who had been on a three- I had he not been creat- four-day drinking binge, explained, “that he had more As people threat to the ing of some an immediate likely than consumed narcotics sort, and of the neighborhood it he was outside possibility that was a [and] house, stayed in there inhalant.” Finton he could have huffing some sort of shooting, he night. was no chance that all Once started also said there circumstances; out, and we pass changed and that he had Bing would to what he did. weapons in the house.” reacted “several raid, it, S.W.A.T. team mem- inside the house and During stopped moved but protect masks to gas bers wore themselves attempting to body move the after he real- in lingering from the the air. pepper ized that Bing was dead. flashbang to use a de- planned The team County The Franklin report coroner’s thereby provide
vice to disorient lists the time of death as 11:42 p.m. invading group cover to the officers. As report shotgun also states that a blast including Sgt. of the officers Martin en- Bing. to the back killed Bing also had at house, Sgt. tered the Martin saw a leg. least one broken just in a “raggеd” hole door ahead of them. Sgt. In telling, Martin’s the hole was plaintiffs are Bing’s estate and his fist, roughly of a size or about “3 to 5 brother, Bing. They Brian brought this inches.” The hole was four-and-a-half to against City Whitehall, suit the po- door,” “up feet according five on the department, lice and the individual officers Sgt. Martin. “I saw Mr. look out 1983, 1986, §§ under 42 U.S.C. 1988 and hole; quickly, the hall” from the “[t]hen he state law. The district court held that the hole, a gun through stuck fired defendant officers are not immune from
round, gun, withdrew the took gun ” suit under the doctrine of qualified immu- up, back fired a second .... round nity because a trial is needed to resolve Salyers’ telling, Officer the officers “start- parties’ disputes. various factual Re- ed taking According fire.” to Officer Sal- garding plaintiffs’ § 1983 claim for yers, Bing shot at police through entry, warrantless the district court held response, hole the wall. In Sgt. Martin alleged shotgun permitted fired his facts the infer- twice the center of the door from a distance of about fifteen feet. ence that the police Bing’s rights violated When fired at police, Officer Sal- first, twice: broke win- yers saw the muzzle Bing’s gun flash from door; second, dows and battered protective dashed behind a shield held when S.W.A.T. fireteams invaded his Dickey firing Officer before several home. rounds at response. the door’s center in respect breaking With to the of Bing’s According officers, these events door, windows and the district court held transpired span over a of less than two juror that a rational could conclude that no minutes. exigency existed. The officers did not Upon hearing Bing’s Sgt. shots at Mar- agree in their accounts about whether tin Salyers house, and Officer within the Bing had shot at the neighborhood teenag- Detective employed flashbang Grebb de- or gun ers had shot his aiming while at no vice in an Bing. effort to distract particular. one in disagreement This im- ignited device materials plied juror rational could disbelieve instantly which caught fire. The Bing posed danger, immediate spread rapidly fire department and the fire *8 district court observed. Detective Grebb arrived. But the did permit not implied in his testimony Bing posed firefighters to Bing’s enter house immedi- no immediate threat to others when he ately because, according police, Bing said that the police would not have invaded might fire on them. Firemen entered the his house he not fired at them. The only house after grew the fire more in- noted, police, tense the district court and it became also did not person evident that a inside pose exigency could not a threat face an to the fire- because waited fighters. Bing’s body One fireman found “entry.” about two hours before this first
563 severity initially depended on the team’s warrant- Regarding the S.W.A.T. raid, reported involving Bing’s firing incident of during the house entry into less dis- genuine weapon, knowledge that a Detective Grebb’s district court held thereof) (or in fact whether lack that accelerants were existed about pute house, present Grebb. The district and whether Detec- at Detective shot offensively with the he expressed dissatisfaction tive Grebb acted court (i.e., by Bing. proof supplied flashbang of threw the second towards amount testimony picture a jury, and The district court held that a not a Detective Grebb’s frame). in the window determine these material is- judge, of the hole should Bing’s gun “appar- court said that sues of fact. district ently Bing’s fingerprints,” contains none of court not rule on wheth- The district рaucity of evidence implied rights any allegedly er of the constitutional enough should supplied by the defense be “clearly were established.” violated jury a because allow the issue to reach dead and cannot rebut the Bing is II. events, thereby much of causing
version credibility. to turn on this case novo, Reviewing de we reverse the dis- genuine held that The district court also in part. trict court’s order The officers pre- fact disputes over issues of material breaking are immune from suit for the plain- summary judgment on cluded door, Bing’s front the warrantless seizure claim. The dis- deadly § 1983 force tiffs’ house, via encirclement of the jury determined that a should trict court devices, pepper use of shot at the officers decide whether entry Bing’s the warrantless into first, claim. The district as the officers the destruction of home. allegedly again “gun said that court not at the team did used to shoot SWAT jurisdiction over This court has Bing’s fingerprints.” The district contain court’s order appeal because district relied on a letter submitted court also immunity may appeal denying qualified be witness, Dehus, Larry plaintiffs’ expert Forsyth, immediatеly. See Mitchell v. ed Bing’s body positioning stated that which 511, 524-30, 2806, 86 105 S.Ct. U.S. story the officers’ was inconsistent with (1985). defendant, But “a L.Ed.2d 411 report “does not indi- autopsy and that the immunity de to invoke a entitled leg broken. The cate” when fense, court’s may appeal a district “heightened scruti- applied district court insofar as that summary judgment order ny of The district court found sorts.” pre or not the order determines whether light of “the genuine dispute existed ‘genuine’ issue of trial record sets forth supporting evidence De- physical lack of Jones, 515 U.S. fact for trial.” Johnson of events.” The district fendants’ version 319-20, 132 L.Ed.2d as one of court viewed the issue (1995). interlocutory appeal In this credibility. legal may only “purely” this court review Cupp, Smith v. genuine- arguments. district court also held that (6th Cir.2005). plaintiffs bear preclud- fact ly disputed issues of material are not prove that the officers summary plaintiffs’ on the burden judgment ed immunity. Blake by qualified regarding § force claims shielded 1983 excessive *9 (6th 1003, 179 1007 Cir. Wright, and flash v. F.3d police’s pepper gas use of 1999). excessive bangs. force was Whether such
564
A.
Bradley,
stances.” United States v.
922
(6th
1290,
Cir.1991),
F.2d
1293
overruled
Bing’s Fourth
police
did not violate
grounds by
on other
United States v.
effected a
rights
Amendment
(6th
McGlocklin,
1037,
8 F.3d
1047
Cir.
by encircling
arrest
warrantless house
1993) (en banc).
controlling
and otherwise
his move-
house
pepper gas.
of
A
ments, through the use
facts,
following
not held to be
authorizing these actions was un-
warrant
subject
a genuine dispute, support
of
necessary
Bing’s behavior created
because
that a dangerous exigency
the conclusion
exigency.
dangerous
a
(1)
justified
house
Bing:
arrest of
siege
court saw the
The district
discharged
neighborhood
a firearm near
methods,
and its
such as the use of the
(2)
minors;
Bing continued to have access
door,
pepper gas,
breaking
of the
(3)
house;
gun
to a
inside the
windows,
of
a
breaking
first set
had been called to
residence on
requiring
of “entries” into the home
a war
previous
previously
occasions because he
rant. We need not decide whether this
(4)
shots;
had fired
could see
activity
“entry”
constitutes
for Fourth
room,
Bing move from room to
demon
purposes
Amendment
because a warrant
strating
bystanders
that police and
were
just
authorizing
required,
as much
(5)
probably
range
Bing’s gun;
within
exigent circumstances,
absent
on other
people in
reported
the street
grounds. By
house,
laying siege Bing’s
intoxicated,
appeared
making it reasonable
windows,
breaking his door and
and em
(6)
expect
that he
act unstably;
would
ploying pepper gas,
the police accom
gathered
crowd was
in the street near
plished
arrest,
i.e.,
a de facto house
people
neighbor
in the
Fourth Amendment seizure. See Ewolski
words,
hood refused to
evacuate.
other
Brunswick,
v. City
F.3d
506-07
Bing had
a willingness
weap
shown
to fire
(6th Cir.2002). In Ewolski this court held
neighborhood
ons in his
and could have
that the use of
coercion to exercise
harmed
in an
others
instant with little
armed,
physical control over an
barricaded
Therefore,
effort.
dangerous exigency
suspect while he is inside his home
existed. As
in Causey City
we stated
seizure,
amounts to a Fourth Amendment
(6th
Bay City,
Cir.2006),
442 F.3d
id.,
exactly
occurred
this case.
exigency
“an
exists
can
when officers
dem
suspect
willingness
onstrate that a
has a
.1.
a weapon” (citing
use
Dickerson v. McClel
The police were not however re
lan,
(6th Cir.1996)).
1151, 1159-60
101 F.3d
quired
get
completing
warrant before
this de facto house
Bing
arrest because
This
support
conclusion finds
Han
posed
Dodson,
(6th
inju
an immediate threat of serious
cock v.
565 (3) of fired”; presence neighbors communica- shots and the his at least one radio in It people had threat- and the the street. is true suspect tion indicated (4) officer; police that in Hancock the received a re- any approaching to kill ened port against of a threat of violence the the house where the sus- arriving at upon located, Bing comparable .22 while issued no police police, saw a was the pect (5) door; safety neighbors the threat. But the of near- gun next to the front caliber by, front the increased risk of behavior standing porch; on the unstable suspect was (6) intoxication, Bing’s history to of could not tell whether the due police the outweigh far lack of firing at 1375-76. On shots the one suspect was armed. Id. Hancock, facts, reported po- that an immedi- threat. Under the this court held these justified immediate-danger warrantless lice this case faced an ate-danger exigency exigency. the house. id. entry into See immediate-danger exigency existed If an Moreover, exigency that did not Hancock, dangerous exigen- a a fortiori passage due to the of time or terminate case, In as in Han- cy existed here. First, exigency the actions. the police’s cock, of shots police report the received passage due to the of did not terminate Hancock, Here, had police as in the fired. dаnger times time because was all information be indicating that could twenty-four Roughly ous. two hours and Bing had fired shots homicidal. passed minutes from the time the minors, making it reasonable presence of p.m. arrived at about 6:30 until used could become homicid- expect p.m., the canisters at 8:54 but the Hancock, case, the sus- al. In this of this much time did not itself passage gun. had access to a pect exigency. passage the of terminate exigency not be make the case for a time did terminate
But the facts here
nothing
of
clock did
stronger
ticking
than in Han-
cause the
dangerous exigency
gun,
or cure
in Hancock did not have
to cut off
access
cock. The
it,
willingness
him
to fire
or move to
safety
bystanders
of
or
of his
worry
about the
safety
nearby who refused to
people
no indication that
neighbors. There was
intoxicated,
Lindsey,
States v.
and the
evacuate.
United
suspect
was
(9th Cir.1989),
777,
the Ninth
suspect’s
Hancock
877 F.2d
had not been to the
delay
of one hour did
firing of
Circuit held that
previously
house
due to his
shots.
“The source
Also,
dissipate
exigency.
in Hancock did not even
ex
possession
dаngerous
of
of
threat
remained
know the nature
increasingly
may
grown
have
entry
justified
plosives
suspect posed—their
Id. Exi
suspicious
intervention.”
they needed to find out.
precisely because
(“Shrah
terminate when
go through
gent
circumstances
id.
decided to
negated.
creating
exigency
are
quickest
route to
factors
house because was
Arizona,
385,
See,
U.S.
e.g., Mincey v.
suspect
to determine the extent
get
(1978);
393,
2408,
This disputed summary for genuinely of held requiring of action brief windows plans the district court held scope judgment purposes), of a dan- may stay within the time contrast, juror could find that By other that rational exigency. gerous reasonably that a time-consuming officers did not believe countenanced courts have justified the decision dangerous exigency Eighth Circuit courses of action. Jones, to obtain a warrant. not States v. United (8th Cir.1980), “careful held that 1361-62 statement, however, did Sgt.- Martin’s not that lasted an hour did work” police establishing for legal not raise the floor danger-based exigency. terminate exigency. Sgt. explains Martin dangerous in United Similarly, the Fifth Circuit why team decid- quote in this the S.W.A.T. Jesus-Batres, F.3d v. De States saying In that there ed to mid the house. (5th Cir.2005), that offi- held 158-59 raid, danger before the was no immediate of a house forty-five minute search cers’ danger that was not plainly he said exigency dangerous not terminate a mid. enough justify severe justified subsequent, warrantless immediate-danger cannot be that an It Therefore, nearby garage. search only when the exigency could have existed by the exigency was not terminated reasonably forced to raid the felt plan decision to and execute generally If this were house. standard in a fash- gas employment proper pepper any time the methodical- applicable, exhausting alternatives. ion after on a barricaded ly pressure incréase court held that a factual The district exit, invading, to force his without gunman summary judgment on precluded dispute find no juror may on that basis a rational exigency dangerous of whether a the issue position This is danger. immediate gas into justify shooting pepper existed by the Fourth Amendment. compelled The district the house without a warrant. requires danger level of The extreme from following quote relied on the court an immediate invasion with police to mount support Martin its Sgt. deposition the floor cannot serve as weapons drawn conclusion: exigency. dangerous á establishing for Brande-
Q:
you
Sergeant
talk to
“im-
require
Did
danger” cannot
“Immediate
why you couldn’t
berry
invasion,”
at all about
po-
matter what one
no
mediate
him, maybe
just outwaited
sat
have
deposition says.
lice officer’s
all night?
there
not mount im-
Causey did
Dickerson and
(and
no
felt
presumably
had he mediate raids
have done that
A: We would
so),
those cases
but this court in
offi- need to do
through the wall at the
not shot
disagree
juror could
that no rational
he not
held
explained,
I
cers.....As
exigencies
present.
probes.
were
id. at
dangerous
997-98. The court
Therefore,
from
quote
Sgt.
following
Martin’s
relied on the
facts to draw this
(1)
genuinely
not create a
dis-
deposition does
conclusion:
from “the time O’Brien re-
fact on
just
of material
the issue of
puted issue
treated into the house until
before the
exigency.
probe,
third
O’Brien had taken no action
(2)
officers”;
against
O’Brien never
ruling
City
This court’s
O’Brien
pointed
gun
anyone during
the rele-
(6th Cir.1994),
Rapids,
was fired.” having parallel crastination no here. court exigency O’Brien held that no These material distinctions render danger justified based on immediate holding regarding the O’Brien’s the immedia- officers’ warrantless cy danger inapplicable use of the search to this case.
569 Therefore, analysis, dangerous exigency per- immunity inquiry encir- a con to seize the “first must be whether mitted the controlling right his move- stitutional would been violated his house have cling alleged; second, obtaining assuming on the facts using pepper without ments established, question violation is a warrant. right clearly whether was establishеd 2. specific must be considered on a more Katz, 194, 200, level.” Saucier v. 533 U.S. entry into police’s warrantless (2001). 2151, 121 S.Ct. 272 L.Ed.2d around like the de p.m., house 11:20 arrest, justified by the facto house by Bing. The exigency created dangerous permitted the warrantless
exigency police’s pepper gas use of Bing through pepper the use of seizure of and the first was reason flashbang device not abated entered spray had totality under the circum able thirty hour and minutes later. about one set forth in stances test Graham v. Con Causey, nor, F.3d at 530. Just before 490 U.S. (1989). entered the still requires L.Ed.2d 443 Graham *14 gun. grounds to a There were no access court to determine the reasonableness concluding Bing for that had lost the will- flashbang use of the the and it; moreover, ingness neighbors to use the by balancing a performing devices “careful short, not the were still evacuated. quality nature and intrusion the previous exigency The officers continued. in individual’s on the Fourth Amendment not Fourth Bing’s violate therefore the against countervailing govern terests (internal the rights they entered Amendment at mental interests stake.” Id. omitted). a warrant. house without judging marks quotаtion When objective of a use of the reasonableness B. force, may hind this court not use 20/20 must sight. id. at 396-97. The court qualified are also The entitled po adopt perspective of a reasonable immunity respect plaintiffs’ to the The court liceman on the scene. See id. for excessive force in the use of claims avoiding in the offi weighs Bing’s interest devices, spray flashbang and and pepper pepper gas the first flash- cers’ use of property. po- for the destruction of using in against the interest bang officers’ they em- lice used reasonable force when methods, by as measured “sever these flashbang ployed pepper gas and first issue, crime at whether ity of the attempt device in an force outside threat suspect poses immediate Although jury house. could conclude others, and wheth safety of the officers or used excessive force when actively or at resisting he is arrest er employed flashbang de- second flight.” Id. tempting by to evade arrest vice, fire, right set the which house on test, the of- “clearly balancing against this use of force was not Under Graham’s established,” im- and the first entitling pepper gas officers to use of ficers’ their munity flashbang from this claim well. For the were reasonable because reason, out- in devices plaintiffs’ employing destruction interest these same avoiding Bing’s is in them. property weighed claim based on the house fire interest has a interest in significant immu- of course also barred officers’ in avoid- having gassed, his house nity. flashbang device in ing having explode totality Graham test is a of the circum- police’s his home. But the interest here stances test. See id. because, such, interest 1865. As it
outweighed Bing’s governs as not- the method of See, regarding exigency, Bing posed ed above force used as well as the level used. e.g., Dykes, threat to serious and immediate others and United States v. (D.C.Cir.2005) out of his (holding tackling refused to come house to be great arrested. The had a need to was a reasonable effectuating method of circumstances). stop him place disarm under arrest to under the gov- posed people abate that he in ernment’s in using the threat interest various meth- outweighed interest ods of applying may the area. This similar levels of force significant avoiding weighed be interest this use of as a factor in the Graham analysis. force. See id. For example, if the
police had a great enough interest to use deadly against force Bing, does not fol- low that they may any do way they so Nevertheless, when the officers desire, say, by burning down his house device, employed the second shooting rather than at him. govern- least under the district court’s view of the ment necessarily had of an less interest facts, Bing’s right officers violated burning down house than it had in against excessive force under the shooting at him because the no balancing Assuming Graham test. in creating interest the additional risk that that Bing’s officers knew house con a burning building poses to everyone else highly tained flammable accelerants and neighborhood. Throwing a flash- that a flashbang easily device could start a *15 bang device into a house knowledge with fire, the use of such a device was on bal dwelling that the likely will catch fire thus objectively ance unreasonable. The dis constitutes unreasonable force these cir- trict summary court assumed for judgment (without cumstances even assuming decid- purposes jury that a could find that the ing) justi- would have been police “knew or should have known that in using deadly fied force. present accelerants were likely and would Applying start a fire.”2 Graham to the Bing’s right not to endure a sec facts, district court’s view of objec it is ond flashbang device these circum tively unreasonable for to em stances, however, not “clearly estab ploy a flashbang device with full knowl Supreme lished.” The Court has not edge that it “likely” ignite will accelerants clearly right, established such a nor has fire, and cause a fire. A which in fact this court or other Daugher circuits. See occurred, posed a mortal Bing, threat to (6th ty 780, v. Campbell, 935 F.2d 784 who of course has fundamental interest Cir.1991) (noting that this court first looks Garner, his life. Tennessee v. 471 U.S. Supreme cases, Court then to Sixth 1, 9, 1694, (1985). 105 S.Ct. 85 1 L.Ed.2d cases, Circuit finally to decisions of Although circuits). in theory might other None of the cases con have a great enough in seizing interest cerning flashbang devices to which the justify deadly force, the use of parties policemen refer involve who knew viewing light 2. the facts in the (deposition testimony least favor- 330 of Finton in which movant, fact, states, accept able to the we only thing, things not- he "The or one of the withstanding evidence in [Bing] huffing the record that the that lately had been that I Sterno.”). "accelerants” were in fact cans of Sterno. JA knew of was
571
record,
briefs,
and after
and the
parties’
flam
likely ignite
would
devices
that such
argument,
in oral
we
having participated
fire.
cause a
thereby
materials
mable
Marasco,
plaintiffs
for the
F.3d
with counsel
agree
430
v.
Smith
Estate
See
fol-
likely assumed the
(3d Cir.2005);
Cooper,
court
Molina v.
the district
140, 151
(7th Cir.2003);
the officers’ inva-
regarding
facts
963,
lowing
United
973
F.3d
325
(1)
48,
shooting Bing:
51
Dawkins,
Fed.Appx.
house and
83
sion of the
v.
States
house, Bing
Benton
(6th Cir.2003);
Boyd v.
entered the
also
the officers
see
(9th
(2)
778,
them;
773,
Bing posed
781-82
at
gun
F.3d
not fire a
County, 374
Cir.2004)
v.
anyone
point;
United States
at that
(examining
safety threat
no
(7th Cir.2000);
(3)
United
Jones,
Bing in the back
III.
po-
opinion that
expert’s
purported
de-
properly
however
district court
fired
which
of events—in
lice version
of the
in favor
summary judgment
nied
back defensive-
fired
first and
plaintiffs’ po-
respect to
officers with
evi-
physical
with
ly
inconsistent
—was
claim. The dis-
deadly force
lice-shooting
in this case.
dence
regarding
of the facts
court’s view
trict
by the district
of facts assumed
This set
claim,
true,
if
constitutes
violation
true,
a violation
court, if
constitutes
right not to be
“clearly
established”
right against
Bing’s Fourth Amendment
deadly force.
with
attacked
If, indeed, Bing
deadly
force.
the use
en-
after the
gun
not have
court’s view
The district
safety threat
no
posed
and
the house
claim is
tered
deadly force
to the
facts relevant
to death
he was shot
However,
anyone
after
opinion.
from its
not clear
he had once
back,
danger
then the
opinion, court’s
reviewing the district
posed had abated. Under these assump-
The district court therefore properly de-
tions,
summary
had no
nied
legitimate
judgment
the officers
inter-
to the officers
respect
using deadly
police-shooting deadly
force that
est
could coun-
force claim.3
terbalance
fundamental interest
Therefore,
his life.
under
assump-
these
IV.
tions,
balancing
compels
the Graham
test
reasons,
For
foregoing
judgment
Bing’s rights
the conclusion that
would
is reversed
all
regarding
except
claims
Smith,
have been violated. See
police-shooting deadly force claim. The
at 774-75.
denial of summary judgment as to the
Moreover,
right allegedly
violated is police-shooting deadly force claim is af-
clearly
Supreme
established under
firmed. The case is
pro-
remanded for
ruling
Court’s
in Tennessee v. Garner.
ceedings
opinion.
consistent with this
9, 11,
See 471
at
U.S.
573
they finally
viola-
scene and when
id.
agree that the constitutional
acted. See
mately
clearly
hostages,
аt the
He
no
not
tion was not so
established
at 997.
had
was
deny
question
brandishing
gun,
in
as to
was
at
shouting
of the events
time
immunity.
or
in
neighbors.
the officers
the
the
Like
O’Brien,
no
estab-
[wa]s
“there
evidence
of
case
the
My view
this
starts with
lishing that the
of
‘im-
danger
threat
was
that “searches and
principle
fundamental
” Id.
I
mediate.’
at 998.
see no reason
a home without a warrant
seizures inside
why there was not sufficient time under
Payton
unreasonable.”
presumptively
are
for the
to seek a
the circumstances
York,
573, 586,
v. New
445 U.S.
to enter
warrant
house.
(1980).
1371,
Although
on the basis of exigent circumstances. end,
In the I find this case to be closer Hancock, O’Brien than to and thus be-
lieve that there were no exigent circum-
stances justifying a warrantless entry into
Bing’s home. I would therefore conclude
that the officers violated constitu-
tional rights. hand, On the other I believe
that they are entitled immuni-
ty because this case is not so close to
O’Brien as to put have a reasonable officer