Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 05 C 0424-Theresa L. Springmann, Judge.
Before MANION and KANNE, Circuit Judges, and KENDALL, District Judge*fn1
Raquel Hanic, the personal representative of the estate of Rudy Escobedo ("the Es- tate"), filed suit pursuant to 42 U.S.C. § 1983 and Indiana state law against the City of Fort Wayne and against individual members of the Fort Wayne Police Department. Hanic asserted that the individual officers used excessive force against Escobedo when they deployed tear gas into his apartment in an attempt to extricate him from the unit where he had isolated himself threatening to commit suicide. After refusing to come out, the officers used additional tear gas and flash bang grenades to enter the apartment, setting fire to the exterior room before throwing the flash bang grenades into the darkened bedroom inches from Escobedo's head rendering him blind and deaf before shooting him to death. The Defendant Officers filed a motion for summary judgment asserting, among other things, that they were entitled to qualified immunity for their actions. The district court denied the motion, in part, finding that the officers were not entitled to qualified immunity for the entry with the tear gas and flash bang devices. The officers then filed this interlocutory appeal. For the following reasons, we affirm.
We begin by setting forth the facts as the district court found them, that is, in the light most favorable to the Estate. See Johnson v. Jones, 515 U.S. 304, 319-20 (1995); see also Jewett v. Anders, 521 F.3d 818, 822 (7th Cir. 2008) (Appellate court's review of a denial of qualified immunity is framed either by the facts as assumed by the district court or by the facts as set forth by the plaintiff).
On July 19, 2005, at 4:24 a.m., Rudy Escobedo ("Escobedo") dialed 911. He told the dispatcher that he was armed with a gun and wanted to shoot himself. He also told the dispatcher that he was high on cocaine. During the 911 call, Escobedo asked the dispatcher to contact his psychologist and he provided the dispatcher with the psychologist's phone number. Throughout the conversation, Escobedo expressed that he was seeking help and that he desperately needed to talk to someone. Escobedo stated that while he was contemplating killing himself, he had no intention of harming anyone else including the police. Escobedo never made any explicit threats to the police or other persons during the call stating instead, "I'm not going to hurt anybody"; and "I just want help." In summarizing the overall tone of the 911 call, the district court made the factual determination that Escobedo was in despair about his drug addiction and his life in general and was suicidal.
Sergeant C.M. Taylor ("Taylor") (not a defendant in the present lawsuit) was the first officer to speak with Escobedo after the 911 call via his personal cell phone. Taylor called Escobedo at 4:55 a.m. and Escobedo informed him that he was armed and planned to commit suicide. After approximately twenty-five minutes, Taylor decided to contact the Crisis Response Team ("CRT") and the Emergency Response Team ("ERT") to respond to the situation.
Once the CRT and ERT arrived, Taylor transferred the phone call with Escobedo to Bernard Ebetino ("Ebetino"), a negotiator for CRT. Ebetino took over negotiations with Escobedo at 5:42 a.m. Escobedo repeated that he was suicidal and armed, asked again to speak with his psychologist and said that he wanted help and medicine for his drug addiction. At 6:23 a.m., the CRT began using a "direct link phone system," a device that allowed several other officers on the seventh floor to listen to the conversation between Escobedo and Ebetino; how-ever, the CRT did not follow protocol for handling the systematic overview of negotiations in that the CRT commander relied on information from officers near the mobile direct link phone system. Normal procedures called for the CRT commander to listen to the negotiations via the direct link system. As a result, the CRT commander did not always learn about important information and accordingly could not inform the scene commander and the ERT commander about such information. For instance, as the district court pointed out, the CRT commander did not recall hearing or learning that Escobedo had removed objects from his apartment door, something that would have been considered a sign of progress.
When this switch was made, Ebetino stopped using Taylor's cell phone and began using another officer's personal cell phone. Taylor's cell phone was not used again during the incident. There is no evidence in the record that Escobedo was told of the change of phones or given the new phone number in case the call was terminated. In fact, after the initial round of tear gas was fired into Escobedo's apartment, the record indicates that Escobedo attempted to call Taylor's cell phone multiple times with no success. Escobedo's com- ments to Ebetino continued to include threats of suicide and a fear of being killed by the police. At times, the conversation took a positive turn and Ebetino believed Escobedo was close to surrendering. But Escobedo would always return to comments about suicide, fear of being killed by the police and his addiction. At one point, Ebetino told Escobedo that the police were trying to contact his psychologist and bring him to the scene so Escobedo could talk to him when he left his apartment. Eventually, Sergeant Kevin Hunter ("Hunter"), head of the CRT, spoke with Escobedo's psychologist but never invited him to the scene or asked him to assist. Hunter recalls that the psychologist told him that he did not think that Escobedo had a history of using weapons or attempting suicide.
Ebetino testified that during the negotiations, Escobedo did not make or constitute a threat to the police or to the public, except "the only indication . . . was when he said he wanted to come out of his apartment with the gun." This statement occurred at 8:28 a.m., which was after supervisors decided, at about 8 a.m. to fire tear gas into Escobedo's apartment and then make entry. At some moments, Ebetino believed Escobedo was barricading his door and at other moments it sounded as if Escobedo was removing the barricade by the door. At 7:27 a.m. he thought that Escobedo was removing the barricade from the door and he assumed (wrongfully) that this information was communicated to the commanders.
During the course of negotiations, Hunter, Lieutenant Kevin Zelt ("Zelt") (head of ERT), and Deputy Chief Martin Bender ("Bender") (commander of the scene) discussed using tear gas against Escobedo. Bender had overall authority over the incident and scene, but relied on Zelt to choose the tactics against Escobedo and on Hunter for information regarding the negotiations. Hunter had to rely on information from other CRT members to supply to Bender. As mentioned previously, normal procedures call for Hunter to listen to negotiations via the direct link system, but he did not do so. At some point between 6:45 and 8 a.m. the idea of using tear gas was first broached. Bender later testified that the key factor in his decision to use tear gas on Escobedo was that by 8 a.m., "it was our belief that the negotiations were not going anywhere," pedestrian and vehicle traffic was increasing in the area, and Hunter had told him that Ebetino heard noises suggesting that Escobedo was barricading his apartment. Although Bender was not told that Escobedo had expressed that he was not going to hurt the police or anyone else, Bender believed that Escobedo was a threat to the public because of "the mere fact that he was armed with a weapon and threatening to commit suicide."
Zelt first suggested using tear gas against Escobedo as a "standard procedure" and "the next logical step" when communications or negotiations with a person are not succeeding and Escobedo was barricading and fortifying his position. Although Zelt stated that he believed Escobedo had made threats of some kind, the district court found that it was not clear that Zelt believed this at the time of the incident or formed that opinion after-wards. Regardless, Zelt could not identify any state- ment Escobedo made that Zelt knew of at the time of the stand-off that constituted an explicit threat to the police or public. Bender also acknowledged that Escobedo had not committed any crime by the point in time that the tear gas was deployed. Zelt stated that the purpose of forcing Escobedo from his apartment with tear gas was not to arrest him but to take him into custody for a 24-hour emergency mental health detention. Zelt indicated that the decision to introduce tear gas was also motivated by his concern that his officers' readiness was deteriorating because it was hot outside. He chose 8:30 a.m. as the deadline for negotiations because he thought it was important to introduce the tear gas before the peak downtown hour although he was aware that most people working downtown were already at work by 8:30 a.m. Hunter concurred with Zelt's decision to use tear gas, focusing on the potential danger to the increasing number of persons who would be in the downtown area and near the hospital that was across the street from Escobedo's apartment building. Deputy Chief Douglas Lucker ("Lucker") was also on the scene at various points and participated in discussions with Bender, Zelt, and Hunter on the use of tear gas to force Escobedo from his apartment.
The district court also considered the testimony of Larry Danaher ("Danaher"), the Estate's expert in police practices. Danaher stated that based on his case review, Escobedo did not pose a threat to officers or the public that required the use of force and that the use of force was premature and based on flawed priorities. Danaher also said that he is familiar with enough traffic in Fort Wayne to know it could have been rerouted with minimal inconvenience, and that traffic concerns should not have played a role in the decision to use force.
After learning that the police would deploy tear gas against Escobedo, Ebetino continued to negotiate. The police did not inform Escobedo of the plan to deploy gas against him. At 8:28 a.m., Escobedo told Ebetino he was going to come out of the apartment but was going to bring the gun with him. At 8:30 a.m., Escobedo again conveyed that he would come out of his apartment in three minutes. Ebetino conveyed to fellow members of the CRT that he wanted another three minutes to negotiate with Escobedo. Ebetino did not ask for more time beyond that three minute reprieve, and he did not ask other members of the CRT to inform the commanders that Escobedo would surrender if Ebetino were given more time to negotiate. After those three minutes elapsed, Ebetino believed that Escobedo was not going to come out.
As the police prepared to fire tear gas grenades into the apartment, Ebetino was told by one of the commanders at the scene to wind down the conversation with Escobedo. Hunter testified that Ebetino ended his phone call with Escobedo before the gas was deployed and that this was not in accordance with normal procedures. As the deadline approached, the ERT officers put on their gas masks. Sergeant Tim Selvia ("Selvia"), who led the ERT entry team, stated that wearing the gas mask makes it difficult to communicate because it muffles one's voice. Danaher stated that gas masks distort officers' voices and make commands sound distorted and sometimes indecipherable.
Zelt calculated what he thought would be an "incapacitating concentration" of chemicals for Escobedo's apartment. He chose six .37 millimeter liquid rounds, six .37 millimeter Sage powder, and five or ten .12 gauge munitions. At 8:33 a.m., Officer Brian Martin ("Martin") and two other officers fired the tear gas rounds into the windows of Escobedo's apartment. After the first round of tear gas was fired, police waited about ten minutes before Zelt ordered officers to fire the second round of chemical agents into Escobedo's apartment. According to Ebetino, after the first round of tear gas had been fired, the fumes became too strong for him to continue negotiating with Escobedo, forcing him and other CRT members to leave the seventh floor of Escobedo's apartment building without their communication equipment. This cut off all communication with Escobedo. Zelt stated that it is not standard for a negotiator to leave the scene after chemical agents or gas are used against a subject, but it occurred here because Ebetino's point of negotiation was unusually close to Escobedo's apartment, and Ebetino did not have a gas mask. While the tear gas rounds were being fired into Escobedo's apartment, Escobedo tried to call Officer Taylor's cell phone, the phone that was originally used to communicate with him. Escobedo attempted to contact the police five times: at 8:34 a.m., 8:36 a.m., 8:39 a.m., 8:43 a.m., and 8:45 a.m. After all of the chemical rounds had been fired, there was twelve times the incapacitating concentration of tear gas in Escobedo's apartment. Danaher said that amount "was clearly and obviously excessive."
After the second round of tear gas was fired into Escobedo's apartment, police waited another ten minutes and then decided to breach the apartment door and deploy "clear out" canisters containing more tear gas. The ERT entry team included Officers Selvia, Martin, Jason Brown ("Brown"), and Scott Straub ("Straub"). All of the officers, except for Brown, were armed with MP5 submachine guns, a Glock handgun, or both. Brown was carrying a shoulder-fired weapon that shoots beanbag rounds meant to stun or disable a person. After using a ram to open the door, the officers threw a "clear out" canister of tear gas, waited a few minutes and then, after receiving no response, threw a second canister of tear gas. After still receiving no response, the ERT team prepared to enter the apartment. Upon entering Escobedo's apartment the ERT team threw a flash bang grenade. When the flash bang grenade explodes, it yields an intense light and extremely loud sound. The explosion from the flash bang grenade ignited the propellant of a tear gas canister and started a fire in Escobedo's apartment. The ERT team extinguished the fire once inside the apartment. After realizing that no one was in the main room or the kitchen, the ERT team determined Escobedo was in the bedroom. They yelled for him to surrender but received no response. At this point, the officers took a ram and began to force the bedroom door open. As the officers worked to push the door open, they heard Escobedo yell several times that he had a gun and that it was pointed at his own head. Once the officers were able to get the door slightly open, they threw a flash bang grenade into the bedroom. The room was "pitch black" when the flash bang was thrown into the room. The flash bang grenade exploded in the front of, or just inside, the bedroom closet where Escobedo was located. The door eventually broke, and all of the officers entered the bed-room. Escobedo continued to yell that he had a gun and that it was pointed at his own head. The officers eventually located Escobedo, who was sitting on the floor of the closet with a gun pointed upside down at his own head. Martin ordered Escobedo to drop the gun and when Escobedo began to lower the gun, Martin fired because he was in fear of his own life. When Brown heard Martin order Escobedo to drop his gun, he too began to fire his weapon at Escobedo in an attempt to disarm him. Escobedo was declared dead at the scene a short time later.
Danaher, the Estate's expert, stated that the Officers disregarded the danger of flash bang grenades when they threw one into the bedroom and it exploded a few feet from Escobedo's head, certainly rendering him both blind and deaf at the time he was shot.
On December 20, 2005, Raquel Hanic, as Personal Representative of the Estate of Rudy Escobedo ("the Estate") filed a complaint under 42 U.S.C. § 1983 alleging, among other things, that Deputy Chief Martin Bender, Deputy Chief Douglas Lucker, Sergeant Kevin Hunter, Lieutenant Kevin Zelt, Officer Brian Martin, Officer Jason Brown, Officer Scott Straub, Sergeant Tim Selvia, Officer Derrick Westfield, Sergeant Shane Lee and Officer Bernard Ebetino violated Escobedo's constitutional rights by using excessive force against him when they deployed tear gas and flash bang grenades during the July 19, 2005 standoff. On January 22, 2007, Defendants Lee and Westfield were dismissed from the case. The remaining Defendants moved for summary judgment, arguing in part that they were entitled to qualified immunity. The district court granted in part and denied in part the Defendant Officers' motion for summary judgment. Specifically, the district court dismissed Defendant Ebetino from the case, and granted summary judgment for the Defendants on the Estate's excessive force claim against Martin and Brown for the fatal shooting of Escobedo, the Estate's failure to train claim, the Estate's warrantless entry claim, the Estate's substantive due process claim and the Estate's state law wrongful death claim. The district court denied the Defendants' summary judgment with respect to the Estate's excessive force claim against Martin for firing tear gas into Escobedo's apartment; the Estate's supervisory liability claim against Bender, Lucker, Zelt, and Hunter, for the tear gas fired into Escobedo's apartment; the Estate's excessive force claim against the entry team-Selvia, Martin, Brown, and Straub-for the raid on Escobedo's apartment and bedroom with tear gas ...