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Estate of Rudy Escobedo v. Officer Brian Martin

December 13, 2012


Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 05 CV 0424--Theresa L. Springmann, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.

ARGUED MAY 31, 2012

Before MANION, KANNE, and WILLIAMS, Circuit Judges.

In the early morning hours of July 19, 2005, Rudy Escobedo became suicidal and ingested cocaine. He dialed 911 and told the operator he had taken cocaine, had a gun to his head, and wanted to kill himself. An emergency response team was dis- patched to negotiate with Escobedo and to try to get him to put down his weapon and leave his apartment volun- tarily. Negotiations proved unfruitful and the police opted to deploy a tactical response to remove Escobedo from his apartment, as they thought he presented a danger to the community around him. After deploying two volleys of tear gas into Escobedo's seventh-floor apartment, a team of six officers wearing gas masks and other protective equipment broke into the apartment. The officers found him holed up in his closet with a gun to his head. The officers ordered him to put down the weapon, but Escobedo did not comply and was shot by two of the police officers. Escobedo's Estate brought a § 1983 excessive force claim against the police and the City of Fort Wayne. After a variety of motions were filed and a partial summary judgment was granted and appealed, the case went to trial and the jury found in favor of the defendants. The district court also granted judgment as a matter of law in favor of the defendants after the jury entered its verdict. The Estate now appeals, and we affirm.


A. Escobedo calls 911

Early in the morning of July 19, 2005, Rudy Escobedo became suicidal and ingested cocaine. From his apartment in Fort Wayne, Indiana, he called his sister Renee and left a message telling her he loved her. He then called his other sister Regina and told her that he had done something stupid, that he was going to jail for a long time, and that he loved her. Shortly after 4:00 a.m., he dialed 911 and informed the dispatcher that he had taken cocaine, had a gun to his head, and wanted to shoot himself. He claimed that the police were in his apartment, but also said that he was alone and that the police were outside his apartment and that he did not want them to enter. He stated that he did not want to hurt anyone, but would kill himself if the police entered his apartment. He gave the dispatcher the name and telephone number of his counselor, Dr. Jim Cates, and said he wanted "someone" to talk to. The dispatcher notified the police, and Officers Foust and Fairchild soon arrived at Escobedo's apartment. The apartment was located on the seventh floor of a building on West Berry Street in downtown Fort Wayne. St. Joseph Hospital was two blocks from his apartment, as was a church with a preschool and several other local businesses. Officer Foust knocked on Escobedo's door and received no answer, but he heard someone (presumably Escobedo) chamber a round into a handgun and move items around inside the apartment.

Sgt. C. M. Taylor, who had also been dispatched to Escobedo's apartment, arrived at 4:38 a.m. and spoke to Officers Foust and Fairchild, who briefed him on the efforts they had taken thus far to reach Escobedo. Sgt. Taylor attempted to speak to Escobedo through the apartment door, but received no response. He was finally able to reach Escobedo via cellphone at around 4:55 a.m., and Escobedo told Sgt. Taylor that he was a drug addict and high on cocaine. Escobedo reiterated that he wanted to die; that he had a gun to his head; that he did not want the police to enter his apartment; that he did not want to hurt the police but would kill himself if the police entered his apartment; and that he wanted to speak to his therapist Dr. Cates. Sgt. Taylor told Escobedo that no one would try to break into his apartment or try to hurt him, and that Sgt. Taylor was there to help him.

B. The Crisis Response Team arrives and begins negotiating with Escobedo

After this conversation, Sgt. Taylor and another officer who had arrived on the scene, Sgt. Michael Vorhies, made the decision to contact the Crisis Response Team ("CRT"), a division of the Fort Wayne Police Department that specializes in situations involving hostages and barricades, including situations where suicidal individuals barricade themselves. While waiting for the CRT, Sgt. Taylor directed several other officers to try to evacuate the other apart- ments on the seventh floor of Escobedo's building, but no one answered when the officers knocked. During this time, Sgt. Taylor continued to converse on and off with Escobedo.

Members of the CRT began arriving at 5:30 a.m., with Officer Bernie Ebetino arriving first. Officer Ebetino proceeded to the seventh floor and listened to Escobedo's conversation with Sgt. Taylor for a few minutes, and then took over negotiations. Other CRT members continued to arrive and assumed various roles: Detective Jonathan Bowers acted as the liaison between the negotiators on the seventh floor and the commanders outside the building; Officer Sofia Rosales kept a timeline of events for the CRT; Officer Victor Torres also served as a liaison but remained outside the building at the command post; Detective Lorna Russell helped to coach Officer Ebetino during the negotiations; and Sgt. Hunter, the CRT commander, acted as an information relay between the negotiators and the commanders.

C. The Emergency Services Team arrives as negotia- tions with Escobedo continue

Members of the Emergency Services Team ("EST") also began arriving on the scene. *fn1 Lt. Kevin Zelt, the EST commander, joined Sgt. Hunter at the scene, and both were under the direct command of Deputy Chief Martin Bender, who was the incident scene commander and had overall authority. Deputy Chief Douglas Lucker was on the scene as well and provided assistance to Deputy Chief Bender. Bender established a command center in the parking lot next to the apartment complex. He then ordered the officers present to form a perimeter around the building, and notified the nearby hospital that an armed man was threatening to commit suicide in the building.

Sgt. Taylor, the officer who had first communicated with Escobedo, briefed Deputy Chief Bender on the situation and then left the scene, leaving his cellphone with Officer Ebetino. Deputy Chief Bender in turn briefed Lt. Zelt on the details of the situation, and Lt. Zelt deployed a three-man squad of snipers/observers to conduct visual surveillance of Escobedo. With the command center located outside the building and the negotiators located on the seventh floor of the building, it was necessary to develop a communication relay system to keep the com- manders informed of the negotiation proceedings. To that end, a CRT officer on the seventh floor relayed infor- mation via a direct-link phone system down to Sgt. Hunter, who in turn passed that information on to the other command staff. When the CRT began using the direct-link phone, they stopped using Sgt. Taylor's phone to communicate with Escobedo and began using another officer's phone which was compatible with the direct-link system. *fn2

Officer Ebetino's plan during the negotiation was for Escobedo to put the gun down and leave his apartment so he could be taken into custody for an emergency mental health detention. Officer Ebetino employed various techniques used by negotiators to effect this plan: he tried to build rapport with Escobedo via active listening, tried to calm Escobedo, tried to build trust and empathy with him, and emphasized that the police were there to help Escobedo. Escobedo informed Officer Ebetino that he had received treatment by a psychi- atrist, Dr. Cates, and Sgt. Hunter called Dr. Cates to learn more about Escobedo. Dr. Cates told Sgt. Hunter that Escobedo had a history of drug use and bipolar disorder, had a strained relationship with his family, and was difficult to deal with when high on drugs. Dr. Cates said that he did not think he could be of any help during the negotiations because Escobedo was difficult to deal with when using drugs, but he still offered to come to the scene. Sgt. Hunter relayed this information to Deputy Chief Bender, and Hunter decided not to ask Dr. Cates to come to the scene.

During the negotiations, Escobedo repeatedly discussed wanting to kill himself, but also repeatedly stated that he did not want to die. Escobedo discussed barricading his door, and Officer Ebetino heard furniture being moved inside. Later, Escobedo said that he was removing the barricade. Escobedo also asked Officer Ebetino about getting medication and speaking with a counselor, and emphasized that he wanted to speak with Dr. Cates. He also talked about seeing his sister Renee, and Officer Ebetino responded by suggesting that Escobedo identify a hospital where he could meet his sister.

D. As negotiations with Escobedo fall apart, the EST prepares a tactical solution

As the negotiations were ongoing, Lt. Zelt began to develop a tactical plan to remove Escobedo from his apartment. The plan included evacuating the building and then using tear gas and a tactical team. According to Lt. Zelt's testimony at trial, Zelt was concerned with the fact that Escobedo's weapon had a range of over one mile and that Escobedo was on the seventh floor of a building, which meant Escobedo "controlled the high ground." In developing his plan, Lt. Zelt reviewed Escobedo's criminal history, noting that he had several prior substance abuse arrests and convictions, including a recent felony arrest for which Escobedo was facing prison time.

By 8:00 a.m., Deputy Chief Bender learned that the negotiations with Escobedo were not progressing. Bender ordered Lt. Zelt to prepare his tactical team for firing tear gas into Escobedo's apartment to force him out. At trial, Bender testified that his decision to employ a tactical plan resulted from his consideration of the safety of his officers, of the public, and of Escobedo himself. Officer Ebetino, however, continued to negotiate with Escobedo while Lt. Zelt and his team prepared the tactical plan. According to Officer Ebetino's testimony at trial, Ebetino believed that he was making no progress with Escobedo and that Escobedo became increasingly irrational over the three hours that Ebetino had spent trying to coax Escobedo to put his gun down and exit his apartment voluntarily.

E. The EST fires tear gas into Escobedo's apartment

At 8:28 a.m., Escobedo threatened to come out of the apartment with his gun in his hand, and indicated to Officer Ebetino that he had a knife as well. Two minutes later, Escobedo stated he would come out of his apartment in three minutes. Deputy Chief Bender, who was ready to order the use of tear gas, held off to see if Escobedo would come out of the apartment as he had promised, but Escobedo did not exit his apartment. Deputy Chief Bender then ordered the tear gas to be fired into Escobedo's apartment. All of the commanders who participated in the decision to deploy a tactical response (Deputy Chief Bender, Deputy Chief Lucker, Lt. Zelt, and Sgt. Hunter) testified that the primary reason for using tear gas to remove Escobedo from the apartment stemmed from their belief that further negotiations would be fruitless.

Officer Ebetino terminated negotiations with Escobedo and the CRT had no further contact with him. The negotia- tors evacuated the seventh floor of the building as Lt. Zelt sent three officers to the street below Escobedo's window to position them to fire tear gas up through the windows of the apartment. While these officers were positioning themselves, a "take down team" led by Sgt. Selvia placed themselves in the hallway of the seventh floor outside of Escobedo's apartment. They put on gas masks in preparation for the tear gas deployment, and were ready to respond if Escobedo exited the apartment after the tear gas was deployed.

Escobedo did not exit the apartment. Sgt. Selvia and other members of the team could hear Escobedo coughing, and repeatedly shouted for Escobedo to put down his gun and come out. Escobedo did not re- spond, and after ten minutes, Lt. Zelt ordered a second volley of tear gas to be fired into the apartment. Once again, Sgt. Selvia and the other members of the take down team shouted for Escobedo to come out of the apartment, but they heard nothing in response.

F. The team breaches Escobedo's apartment door

After waiting an additional ten minutes, Lt. Zelt ordered the officers to enter the apartment. Zelt ordered Sgt. Selvia to employ a "breach & delay" tactic whereby Selvia and the other members of the team rammed the door open and tossed an aerosol canister containing tear gas into the first room of Escobedo's apartment. By this point, Sgt. Selvia's team was comprised of Sgt. Shane Lee and Officers Derrick Westfield, Scott Straub, Jason Brown, and Brian Martin. The team waited for over a minute for a response, but when there was none, Lt. Zelt ordered Sgt. Selvia to use a second tear gas canister.

Lt. Zelt then ordered the officers to enter the apartment. The officers tossed a "flashbang" grenade, a distraction device that emits a loud noise and a bright flash, into the room before entering it. The effects of a flashbang, designed to temporarily disable and blind a suspect, last between two and eight seconds, providing officers sufficient time to gain control over a room. The flashbang ignited some of the propellant from the tear gas canisters and caused a small fire. The officers entered the room, put out the fire, and quickly searched the living room and adjoining kitchen, determin- ing that Escobedo was not in the common area. They saw that the bedroom door was closed, and decided that Escobedo must be in the bedroom.

G. The team enters the bedroom and Officers Martin and Brown shoot Escobedo

When the team tried to open the bedroom door, they found it was barricaded, and they had to use the ram to force the door open, breaking the door in half in the process. Officer Straub then threw a second flashbang over the barricade and into the bedroom. The flashbang detonated in the closet, where ...

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