In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2365
E STATE OF R UDY E SCOBEDO , (Deceased)
(Raquel Hanic, Personal Representative of Estate),
Plaintiff-Appellee,
v.
M ARTIN B ENDER, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 05 C 0424—Theresa L. Springmann, Judge.
A RGUED JANUARY 22, 2009—D ECIDED A PRIL 5, 2010
BeforeM ANION and K ANNE, Circuit Judges, and
K ENDALL, District Judge.
K ENDALL, District Judge. Raquel Hanic, the personal
representative of the estate of Rudy Escobedo (“the Es-
Hon. Virginia M. Kendall, District Judge for the Northern
District of Illinois, is sitting by designation.
2 No. 08-2365
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 exces-
sive 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 ren-
dering 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 fol-
lowing reasons, we affirm.
I. Background
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).
No. 08-2365 3
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 conversa-
tion, 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
4 No. 08-2365
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 negotia-
tions via the direct link system. As a result, the CRT
commander did not always learn about important infor-
mation and accordingly could not inform the scene com-
mander 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-
No. 08-2365 5
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
6 No. 08-2365
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-
No. 08-2365 7
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 down-
town 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
8 No. 08-2365
Wayne to know it could have been rerouted with mini-
mal 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 offi-
cers’ voices and make commands sound distorted
and sometimes indecipherable.
No. 08-2365 9
Zelt calculated what he thought would be an “incapaci-
tating concentration” of chemicals for Escobedo’s apart-
ment. He chose six .37 millimeter liquid rounds, six .37
millimeter Sage powder, and five or ten .12 gauge muni-
tions. At 8:33 a.m., Officer Brian Martin (“Martin”) and
two other officers fired the tear gas rounds into the win-
dows 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 apart-
ment building without their communication equip-
ment. 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 apart-
ment, 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.”
10 No. 08-2365
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 subma-
chine 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 apart-
ment 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 apart-
ment. 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”
No. 08-2365 11
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 constitu-
tional rights by using excessive force against him when
12 No. 08-2365
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 immu-
nity. 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’ sum-
mary 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 and flash bang
grenades; and the supervisory liability claim against
Bender, Lucker, Zelt, and Hunter, for the entry team’s raid
on Escobedo’s apartment. In denying the summary judg-
ment on these claims, the district court found that the
Defendant Officers were not entitled to qualified im-
munity. The individual officers, Bender, Lucker, Zelt,
Hunter, Martin, Selvia, Brown and Straub, now appeal
the district court’s denial of qualified immunity.
No. 08-2365 13
II. Discussion
A. Qualified Immunity
The only question before us on this appeal is whether,
taking the facts as the district court presented them, the
district court erred in finding that the individual officers
were not entitled to qualified immunity for their decision
to use tear gas to extricate Escobedo from his apartment
and their decision to use more tear gas and flash bang
grenades to enter his apartment.2 We review the district
court’s denial of summary judgment on qualified immu-
nity grounds de novo, asking whether viewing the facts
in the light most favorable to the plaintiff, the defendants
were nonetheless entitled to qualified immunity as a
matter of law. See Anders, 521 F.3d at 821 (citing Sullivan
v. Ramirez, 360 F.3d 692, 696 (7th Cir. 2004)). While a
district court’s denial of summary of judgment is not
ordinarily appealable, when a district court denies sum-
2
The Estate filed a motion for interlocutory certification
pursuant to 28 U.S.C. § 1292(b) concerning issues decided in
the district court’s partial grant of Defendants’ Motion for
Summary Judgment which was granted by the district court
on September 25, 2008. On October 6, 2008, the Estate petitioned
this Court for an interlocutory appeal. See Estate of Escobedo v.
Bender, et al., Appeal No. 08-8030. On October 23, 2008, this
Court denied the Estate’s petition for interlocutory appeal. On
October 29, 2008, the Estate filed a Motion for Rehearing and
Rehearing En banc. On November 14, 2008, this Court issued an
order instructing the Clerk to distribute the petition en banc. On
April 21, 2009, this Court denied the Estate’s Petition for
Rehearing and its Petition for Rehearing En banc.
14 No. 08-2365
mary judgment on qualified immunity grounds, we have
jurisdiction to consider this purely legal question. See
Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005).
We start with the understanding that governmental
actors performing discretionary functions enjoy qualified
immunity and are “shielded from liability for civil dam-
ages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Sallenger v. Oakes,
473 F.3d 731, 739 (7th Cir. 2007) (quoting Harlow v. Fitzger-
ald, 457 U.S. 800, 818 (1982)). Up until the day before this
case was argued, Saucier v. Katz maintained a sequential
procedure for considering whether an officer is entitled
to qualified immunity. 533 U.S. 194, 201 (2001). Under
Saucier, we were required to first determine whether,
taking the facts in the light most favorable to the plain-
tiff, the officers’ conduct violated a constitutional right.
Id. Only if the plaintiff met that burden would we then
determine whether the particular constitutional right
was “clearly established” at the time of the alleged viola-
tion. Id. The Supreme Court recently reconsidered
Saucier and decided “that while the sequence set forth
[in Saucier] is often appropriate, it should no longer be
regarded as mandatory.” Pearson v. Callahan, ___ U.S. ___,
129 S.Ct. 808 (2009). Although it recognized situations
in which the Saucier approach is beneficial, the Court
concluded that the judges of the district courts and
the courts of appeals could exercise their discretion in
deciding which of the two prongs to address first. Id.
Here, the Defendants limit their argument on appeal
to the second prong of the Saucier qualified immunity
No. 08-2365 15
analysis, that is: whether the law was clearly established
as of July 19, 2005, that the use of tear gas and flash
bang devices in these unique circumstances violates an
individual’s Fourth Amendment right to be free from the
use of excessive force. See Appellants’ Br. at 19 n. 3 (“Al-
though appellants remain convinced of the propriety
of their actions, they acknowledge that the issue for
review by this Court on interlocutory appeal is the second
prong of the Saucier test, whether the law was clearly
established at the time of the alleged constitutional viola-
tion.”). They do not contest the district court’s finding
that taking the facts in the light most favorable to the
Estate, a reasonable jury could find that their decision
to use tear gas and flash bang devices against Escobedo,
a suicidal, armed, barricaded person, was an excessive
use of force under the Fourth Amendment. Accordingly,
for purpose of the present appeal, we turn to the second
prong of the Saucier qualified immunity analysis and
assume that a reasonable jury could conclude that the
Defendants’ conduct violated Escobedo’s Fourth Amend-
ment rights.3
3
Defendants do make a passing reference in their opening
brief to the “objective reasonableness standard,” while dis-
cussing their decision to enter Escobedo’s apartment with the
use of tear gas and flash bang devices. See Appellants’ Br. at 18
(“The objective reasonableness standard does not require
that officers use alternative less intrusive means to accomplish
their objectives.”). The objective reasonableness standard is the
constitutional test for use of force considerations. See Graham v.
(continued...)
16 No. 08-2365
i. Clearly Established
The Defendants claim that they are entitled to qualified
immunity because the law was not clearly established on
July 19, 2005, to place them on notice that the use of tear
gas and flash bang devices in these particular circum-
stances was unconstitutional. The Estate has the burden
of establishing that the constitutional right at issue was
clearly established. See Boyd v. Owen, 481 F.3d 520, 526
(7th Cir. 2007); see also Koger v. Bryan, 523 F.3d 789, 802
(7th Cir. 2008) (A plaintiff seeking to defeat an assertion
of qualified immunity must establish “that the law con-
cerning the plaintiff’s asserted right was clearly estab-
lished at the time the challenged conduct occurred.”)
(internal quotations omitted). For a constitutional right
to be clearly established, its contours “must be suf-
ficiently clear that a reasonable official would understand
that what he is doing violates that right”; however, an
official action is not protected by qualified immunity
3
(...continued)
Conner, 490 U.S. 386 (1989) (holding objective reasonableness
standard applicable to Fourth Amendment use of force claims).
To the extent that Defendants’ language attempts to address
the first prong of the Saucier qualified immunity analysis, it is
in conflict with Defendants’ direct statement that it is seeking
review only as to the second prong of the Saucier test. Further-
more, if it was Defendants’ intention to make a substantive
argument with passing reference to the objective reasonable-
ness standard, the argument is waived for want of develop-
ment. See Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.
2005) (“perfunctory or undeveloped arguments are waived.”).
No. 08-2365 17
only when the very action in question has previously
been held unlawful, rather the unlawfulness must be
apparent “in light of the pre-existing law.” Hope v. Pelzer,
536 U.S. 730, 739 (2002).
The Estate can demonstrate that the right was clearly
established by presenting a closely analogous case that
establishes that the Defendants’ conduct was unconstitu-
tional or by presenting evidence that the Defendant’s
conduct was so patently violative of the constitutional
right that reasonable officials would know without guid-
ance from a court. See Hope, 536 U.S. at 739-40; see also
Siebert v. Severino, 256 F.3d 648, 654-55 (7th Cir. 2001)
(identifying two routes for proving that a right is clearly
established: (1) the violation is so obvious that a rea-
sonable officer would know that what he is doing
violates the Constitution; or (2) a closely analogous case
establishes that the conduct is unconstitutional).
a. Patently Obvious Constitutional Violation
When assessing whether a constitutional violation has
occurred, “[t]he Fourth Amendment inquiry is one of
‘objective reasonableness’ under the circumstances.” See
Graham v. Connor, 490 U.S. 386, 399 (1989). To determine
whether the force used to effect a particular seizure
is reasonable, we balance the nature and quality of the
intrusion on the individual’s rights against the “counter-
vailing governmental interests at stake.” See id. at 395.
Factors to consider in making a determination of whether
the amount of force used to effectuate a seizure is rea-
sonable include the severity of the crime at issue, whether
18 No. 08-2365
the suspect poses an immediate threat to the safety of
the officers or others, and whether he actively is re-
sisting arrest or attempting to evade arrest by flight. See
id. at 397. Other factors include whether the individual
was under arrest or suspected of committing a crime, was
armed, or was interfering or attempting to interfere
with the officer’s execution of his or her duties. See McDon-
ald v. Haskins, 966 F.2d 292, 292-93 (7th Cir. 1992). In the
end, the excessive force inquiry “looks to whether the
force used to seize the suspect was excessive in relation
to the danger he posed—to the community or to the ar-
resting officers—if left unattended.” Id. at 294; see also
Estate of Starks v. Enyart, 5 F. 3d 230, 234 (7th Cir. 1993)
(finding that the amount of force that is constitutionally
permitted to execute a seizure decreases with the threat
of danger posed by the individual being seized).
Applying the Graham factors, and drawing all inferences
in favor of the Estate, the district court could reasonably
question whether the Defendant Officers had legitimate
reasons to conclude that their use of tear gas and flash
bang devices in this situation was acceptable. At the time
the officers deployed the first round of tear gas into
Escobedo’s apartment and continuing on through their
decision to deploy a second round of tear gas and then
to use more tear gas and flash bang devices to enter to
Escobedo’s apartment, Escobedo was not posing an
immediate threat to the officers or to the public,
the standoff was only three hours old, and the officers
making the tactical decisions did not have all of the
relevant and critical information regarding the negotia-
tions. Escobedo was not resisting arrest, fleeing from the
No. 08-2365 19
police or holding hostages. While Escobedo may have
posed some level of theat or potential threat to the Defen-
dant Officers because he was armed and under the influ-
ence of drugs, taking the facts in the light most favorable
to the Estate, he did not threaten to harm anyone
but himself. Escobedo had not committed a crime, there
were no efforts to arrest him for the commission of a
crime, and there were no warrants for his arrest. The
officers’ own reason for the deployment of the force
used was to seize Escobedo for a twenty-four-hour
mental health watch. The unreasonableness of the deci-
sion is further exacerbated by the breakdown in com-
munication initiated by Defendants, the lack of violent
history by Escobedo (confirmed by his counselor), and
the lack of any hostages or threats to the public. This
scenario coupled with the amount of tear gas utilized by
the Defendants, twelve times the incapacitating level of
tear gas necessary, the use of flash bang devices within
the tear-gas-filled room, and the throwing of the flash
bang device into a darkened room with no knowledge of
the location of the individual inside that room could
possibly create a violation that is so patent that no
violator has even attempted to obtain an appellate
ruling on it. See Anderson v. Romero, 72 F.3d 518, 526-27 (7th
Cir. 1995) (“A constitutional violation that is so patent
that no violator has even attempted to obtain an appel-
late ruling on it can be regarded as clearly established
even in the absence of precedent.”).
The court need not identify this as such a case, however,
because on July 19, 2005, Defendants were properly on
notice that the use of tear gas and flash bang devices in
a closely analogous context was deemed unreasonable.
20 No. 08-2365
b. Closely Analogous Case Law
When looking at closely analogous cases to determine
if a right was clearly established at the time of the viola-
tion, we look first to controlling precedent on the issue
from the Supreme Court and to precedent from this
Circuit. In the absence of controlling precedent, we must
broaden our survey to include all relevant case law in
order to determine “whether there was such a clear
trend in the case law that we can say with fair assurance
that the recognition of the right by a controlling precedent
was merely a question of time.” Jacobs v. City of Chicago,
215 F.3d 758, 766 (7th Cir. 2000).
Finding that a right is clearly established under the
second prong of Saucier’s qualified immunity analysis is
not “predicated upon the existence of a prior case that is
directly on point.” Green v. Butler, 420 F.3d 689, 701 (7th
Cir. 2005) (internal citations omitted). “Although earlier
cases involving fundamentally similar facts can provide
especially strong support for a conclusion that the law
is clearly established, they are not necessary to such a
finding.” Hope, 536 U.S. at 741. Rather, even where there
are notable factual distinctions between the precedents
relied on and the case before the Court, if the prior deci-
sions gave reasonable warning that the conduct at
issue violated constitutional rights they can demonstrate
clearly established law. See id. While Fourth Amend-
ment inquiries are fact intensive, “officials can still be
on notice that their conduct violates established law even
in novel factual circumstances.” Id. Accordingly, the
salient question here is not whether there is a prior case
No. 08-2365 21
identical to the Estate’s current claim but whether the
state of the law at the relevant time gave the Defendants
fair warning that their treatment of Escobedo was uncon-
stitutional. Green, 420 F.3d at 701.
1. Tear Gas
This Circuit has previously analyzed under what cir-
cumstances the use of tear gas and other disabling chemi-
cal agents would be constitutionally impermissible. In
Stringer v. Rowe, 616 F.2d 993 (7th Cir. 1980) and Lock v.
Jenkins, 641 F.2d 488 (7th Cir. 1981), we discussed the
constitutional limits for the use of tear gas and mace on
pre-trial detainee in confined areas. We determined that
the use of tear gas against persons confined in a jail cell
was appropriate only in rare circumstances and was not
justified when a pre-trial detainees did not constitute
an actual threat. See Lock, 641 F.2d at 496 (although a tray
could be considered a potential weapon, it was not
enough to justify use of tear gas; shouting threats to
guards was not enough to justify the use of tear gas;
engaging in a riot after attempting to escape and taking
the prison warden and others hostage was enough to
justify use of tear gas). In so holding, we looked to several
other circuits that had previously ruled that “the use of
such agents should be strictly limited to circumstances
presenting the utmost degree of danger and loss of con-
trol,” and that the “use of potentially dangerous quantities
of the substance is justified only under narrowly defined
circumstances.” Stringer, 616 F.2d at 999 (citing Spain v.
Procunier, 600 F.2d 189, 196 (9th Cir. 1979) and McCargo v.
22 No. 08-2365
Mister, 462 F.Supp. 813, 819 (D. Md. 1978)). Additionally,
we specifically stated that the use of tear gas “to subdue
individual prisoners, rather than to quell large distur-
bances, should be more restricted.” Id.
Other circuits have also addressed the constitutional
limits of using tear gas on non-prisoners. See Jacobs, 215
F.3d at 766. In Estate of Smith v. Marasco, 318 F.3d 497 (3d
Cir. 2003),4 the police received a complaint which caused
them to go to the Smith’s house. Id. at 502. Smith was a
former Vietnam veteran and suffered from various
mental health problems including Post-Traumatic Stress
Disorder. Id. at 501-02. After arriving at Smith’s home and
receiving no response from knocking on the door, the
officers saw a red light and believed that it was a laser-
sighted firearm that Smith was pointing at them. Id.
After attempting to communicate with Smith, the officers
called for an ERT team. Id. The ERT team arrived with
thirty officers and numerous weapons. Id. at 503. During
the course of negotiations with Smith, the ERT team
refused to let friends or family communicate with Smith
and rejected the use of a psychologist. Id. The ERT team
4
Defendants argue that Marasco was decided in November
2005, which is after the date of the incident in this case and
therefore Marasco could not have placed the Defendants on
notice that their conduct was unlawful; however, the Third
Circuit has two opinions concerning Marasco. Compare Estate
of Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003) (Marasco I), with
Estate of Smith v. Marasco, 430 F.3d 140 (3d Cir. 2005) (Marasco II).
Marasco I is discussed in this Opinion and was decided
prior to July 2005.
No. 08-2365 23
then decided to clear Smith out of his house, and to enter
his house themselves with the use of tear gas and flash
bang grenades. Id. The Marasco court held that Smith
had proffered sufficient facts to make the question of
whether the defendant officers used excessive force
in deploying tear gas and flash bang grenades appro-
priate for resolution by a jury. Id. at 516. In making this
determination, the court stated that the ERT were ap-
proaching only one man, not a large group and there
were no hostages inside the house. Id. Although officers
were aware that Smith was mentally unstable and was
possibly possessing a firearm, there was no indication
that Smith had been using a gun recently or that Smith
had ever used a gun in a violent manner. Id. at 517. The
officers were not attempting to make an arrest at the
time they decided to use the tear gas and flash bang
grenades, and there was no indication in the record
that Smith had any history of violence which the
officers would have been aware of. Id. Lastly, the court
held that a jury should be allowed to hear the testimony
of Smith’s police expert who was of the opinion that
the officers behavior was unreasonable and unlawful. Id.
In the absence of controlling precedent from our
circuit, courts look to other circuits to ascertain whether
there was such a clear trend in the case law that the
recognition of the right by a controlling precedent was
merely a matter of time. See Cleveland-Perdue v. Brutsche,
881 F.2d 427, 431 (7th Cir. 1989). There are other decisions
from our sister circuits that are “closely analogous” to
the situation before us so as to put the Defendant Officers
on notice that their decision to use tear gas against
24 No. 08-2365
Escobedo was an unreasonable use of force See, e.g., Vinyard
v. Wilson, 311 F.3d 1340, 1349 (11th Cir. 2002) (officer
used excessive force under Graham where he pepper
sprayed a handcuffed and confined detainee); Green v.
Barber, 310 F.3d 889, 898 (6th Cir. 2002) (officers conduct
might be found to be excessive force where officer used
pepper spray on individual who was arrested for non-
severe crime and who was not threatening anyone’s
safety or attempting to evade arrest by flight even though
individual may have been actively resisting arrest and
refused to be handcuffed); Slakan v. Porter, 737 F.2d 368, 372
(4th Cir. 1984) (prison guard’s use of tear gas “unquestion-
ably crossed the line separating necessary force from
brutality” where prisoner was locked in his cell and posed
no direct physical threat to other inmates or any of the
guards); Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994) (a
reasonable officer would know that spraying mace on
a potentially blinded, incapacitated individual would
violate the right to be free from excessive force).
Based on controlling precedent from this Circuit and the
clear trend in the law from our sister circuits, the
clearly established law as of July 19, 2005, established that
the use of tear gas is unreasonable when: (1) attempting
to subdue individuals as opposed to mass crowds;
(2) when the individual does not pose an actual threat;
(3) when the individual is not holding hostages; (4) when
the individual has not committed a crime and the officers
are not in the process of attempting to make an arrest;
(5) when the individual is armed but merely suicidal as
opposed to homicidal; (6) when the individual is not
attempting to evade arrest or flee from the police; and
No. 08-2365 25
(7) when the individual is incapacitated in some form.
Here, like Smith in Marasco, Escobedo was alone in his
apartment, he was not inciting a riot, making a “large
disturbance,” holding hostages or making any threats. See
Lock, 641 F.2d at 496. Like Smith, Escobedo had mental
health issues and a gun, but there was no indica-
tion that Escobedo had been using a gun recently or that
Escobedo had ever used a gun in a violent manner. Unlike
Smith, however, who allegedly pointed his gun at the
police but where the court still found that the officers’
conduct in deploying tear gas and flash bang devices
could be found to be unreasonable, Escobedo did not
point his gun at anyone but himself. When the officers
made their decision to enter the apartment, there was
no one else at risk in the apartment and the reasons
given by the officers for entering the apartment at that
time were solely traffic concerns and the depleted energy
of the officers on the scene; they were not based on
any concern that Escobedo was an imminent threat to
others. By the time the Defendants entered Escobedo’s
apartment they had already fired twelve times the inca-
pacitating amount of tear gas into his home. The amount
of gas emanating from Escobedo’s apartment was so
strong that Officer Ebetino had to leave his station out-
side Escobedo’s apartment because he did not have a
gas mask. Therefore, taking the facts in the light most
favorable to the Estate, Defendant Officers would have
known that Escobedo was incapacitated inside the apart-
ment and decided to use more tear gas and flash bang
grenades subsequent to the initial gas. The similarity of
the facts on the Marasco case and of Escobedo’s situation
26 No. 08-2365
placed the Officers on notice that their entry was possibly
unconstitutional. See Hope, 536 U.S. at 739.
The Defendants assert that these cases are insufficient
to put them on notice because they do not specifically
address the use of tear gas where the objective was to
force an armed and suicidal person from a dwelling. The
Marasco case, however, is strikingly similar and exact
similarity is not required. See Hope, 536 U.S. at 739 (An
official action is not protected by qualified immunity
only when the very action in question has previously
been held unlawful, rather the unlawfulness must be
apparent “in light of the pre-existing law.”); Chaklos v.
Stevens, 560 F.3d 705, 716 (7th Cir. 2009) (“The question is
not whether there is a prior case ‘on all fours’ with the
current claim.”); Miller v. Jones, 444 F.3d 929, 934 (7th
Cir. 2006) (for a right to be clearly established there
does not have to be a prior case with materially similar
facts; officials may still be on notice in “novel factual
circumstances.”). Based on the facts as presented to us
in the record and taking them in the light most favorable
to the Estate, we find that Defendants’ actions in
deploying an excess amount of tear gas to extricate
Escobedo, a non-threatening, non-violent, non-resisting
individual, from his apartment violated a clearly estab-
lished right and therefore the Defendants are not pro-
tected by qualified immunity.
2. Flash Bang Grenades
The Defendant Officers contend that they are entitled to
qualified immunity for their decision to use flash bang
No. 08-2365 27
devices to enter Escobedo’s arpartment. We have previ-
ously indicated that the use of flash bang devices should
be limited and is not appropriate in most cases. In Molina
v. Cooper, 325 F.3d 963 (7th Cir. 2003), while we found
that the officers’ use of flash bang devices during the
execution of a “high risk” search warrant—which was
obtained for Molina’s home on suspicion of drug activity—
was reasonable because Molina had a criminal history
that included aggravated assault, was alleged to be the
head of a drug distribution organization, was associated
with gangs, was home and had access to a stash of weap-
ons, we expressly stated that “we in no way suggest that
the use of flash bang devices is appropriate in every case
(or even most cases).” Id. at 966 n. 1, 973. In finding that
the officers’ deployment of flash bang devices was rea-
sonable, we emphasized that the officers had a significant
reason to be concerned about their personal safety and
we expressly limited our holding to the circumstances
presented in that case. See id. at 973. In United States v.
Folks, 236 F.3d 384 (7th Cir. 2001), we discussed, in dicta,
the potentially serious injuries that may arise from the use
of a flash bang device during a search. We suggested
that a sufficiently careful (or perhaps reasonable) use of
a flash bang device occurs when officers take a moment
to look inside a residence or a room to ensure that no
one would be injured by the device before tossing it
and where officers carry a fire extinguisher to quickly
extinguish any fires resulting from deployment of
the device. Id. at 388 n.2. We also, in no uncertain
terms, pointed out that the use of a flash bang device
is justified when “potentially violent people [can] be
28 No. 08-2365
found in [a] house,” as opposed to individuals who
pose no threat to the police or others. Id. at 388 n. 2 (em-
phasis added). We noted that if the government does not
use discretion in when and how they use flash bang
devices, they “may [ ] risk significant damage claims
from the careless deployment of flash-bang devices.” Id.
In United States v. Morris, 349 F.3d 1009 (7th Cir. 2003),
we explicitly stated that this Court has “often empha-
sized the dangerous nature of flash-bang devices and has
cautioned that the use of such devices in close proximity
to suspects may not be reasonable.” Id. at 1012. (Emphasis
added). We suggested, also in dicta, that the use of a
flash bang grenade is reasonable only when there is a
dangerous suspect and a dangerous entry point for the
police, when the police have checked to see if innocent
individuals are around before deploying the device, when
the police have visually inspected the area where the
device will be used and when the police carry a fire
extinguisher. See id. at 1012 n. 1.
We also discussed the appropriateness of using flash
bang devices in United States v. Jones, 214 F.3d 836, 837-38
(7th Cir. 2000). In Jones, we were disturbed by the
officers use of flash bang devices and stated that while
the district court found their conduct to be reasonable,
we were less certain. Id. Specifically, we unambiguously
stated that “police cannot automatically throw bombs
into drug dealers’ houses, even if the bomb goes by
the euphemism ‘flash-bang device’,” particularly where
they do not believe the drug dealer is an unusually danger-
ous individual. Id. We found this to be true even
though guns are normally used in the drug trade and even
No. 08-2365 29
where a drug dealer has a prior weapons offense. Id.
Lastly, while Jones was a criminal case that discussed
the use of flash bangs in the context of suppressing evi-
dence, we specifically stated that “[i]f this were a
damages action seeking compensation for injury to the
occupants or to the door, the claim would be a serious
one.” Id.
Other circuits have similarly considered the constitu-
tional limits of using a flash bang device. See, e.g., Boyd v.
Benton County, 374 F.3d 773, 777-79 (9th Cir. 2004) (use of
flash bang device unconstitutional use of excessive
force where police deployed it without either looking or
sounding a warning when there were innocent
individuals in a room as well as suspected robbers).
Additionally, the court in Estate of Smith v. Marasco, 318
F.3d 497, 515-18 (3d Cir. 2003), previously mentioned
above, discussed the use of flash bang grenades to enter
an individual’s home where the purpose was not to
arrest him and where the individual was non-threatening,
mentally unstable and suicidal. The Marasco court deter-
mined that a reasonable jury could find that the
defendant officers’ conduct was unreasonable and exces-
sive under the Fourth Amendment. Id.
Here, the Defendants first deployed a flash bang
grenade as the ERT team made its entry into Escobedo’s
apartment. The record reflects that the Defendant
Officers had no idea where Escobedo was located when
they threw the first flash bang into his apartment. Addi-
tionally, there is no evidence that the officers visually
inspected the area before throwing the flash bang device
30 No. 08-2365
or that they looked inside, even ever so slightly, to see if
anyone else was present that may be injured by the
flash bang. The second flash bang device was deployed
when the Defendants entered Escobedo’s bedroom. The
Defendants were only able to force the door open
slightly and the room was “pitch black” when they
threw the flash bang grenade. The flash bang device
landed next to Escobedo’s head when it exploded. The
record reflects that Escobedo was blind and deaf when
the officers entered his bedroom as a result of the loca-
tion of the explosion in proximity to his head. Addition-
ally, the Estate’s police expert testified that a flash bang
grenade should be placed in a room, not thrown or
tossed, so as to prevent it from landing in an unintended
location.
There is no evidence that the Defendant Officers were
carrying a fire extinguisher even though they had previ-
ously deployed tear gas accelerants into Escobedo’s
apartment and, in fact, the initial flash bang device set a
fire in Escobedo’s apartment because it hit a tear gas
canister. Furthermore, as stated previously, drawing all
inferences in favor of the Estate, Escobedo was not con-
sidered to be a violent, dangerous individual, he was not
the subject of an arrest and he did not pose an immediate
threat to the police or others. The fact that Escobedo was
in possession of a gun does not provide support for
the Defendants that their use of flash bang devices was
reasonable. See Jones, 214 F.3d at 837-38.
On these facts, viewed in the light most favorable to the
Estate, the law points only in one direction: the use of the
No. 08-2365 31
flash bang devices in this case was an unreasonable use
of force to which qualified immunity does not apply. As
discussed above, through the use of “lucid and unambigu-
ous” dicta, see Hanes v. Zurick, 578 F.3d 491, 496 (7th Cir.
2009), we have repeatedly expressed our concern with
the overuse of flash bang devices, especially where the
circumstances do not warrant such extreme measures.
This is because flash bang devices are essentially
grenades and can be very dangerous and destructive.
Despite the absence of a great deal of precedent in this
area, the pertinent holdings and dicta do show a clear
trend in the law that addresses the egregious circum-
stances of this case; even if the contours of the constitu-
tional implications of the use of “flash bang” devices in
general is not clear, it is abundantly clear that this case
arises in precisely the circumstances that this Court and
other circuits have sought to avoid by providing
detailed guidance on when the use of flash bang devices
is (and is not) appropriate under the Constitution. See
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (even dicta
may clearly establish a right); see also Hanes, 578 F.3d at
496. If this were a borderline case, perhaps the relative
paucity of judicial holdings forbidding the use of flash
bang devices as compared to other more fully developed
areas of Fourth Amendment jurisprudence would counsel
in favor of a generous application of qualified immunity.
However, on the facts of this case, the officers’ conduct
in the use of the flash bang devices so clearly exceeded
the bounds of reasonableness in the circumstances that
it cannot be said to lie near the “hazy border between
excessive and acceptable force” along which qualified
32 No. 08-2365
immunity shields officers from liability for their snap
judgments, if those judgments prove to be wrong upon
further reflection.
Based on the pre-existing case law, it was clearly estab-
lished as of July 19, 2005, that throwing a flash bang device
blindly into an apartment where there are accelerants,
without a fire extinguisher, and where the individual
attempting to be seized is not an unusually dangerous
individual, is not the subject of an arrest, and has not
threatened to harm anyone but himself, is an unrea-
sonable use of force. Therefore, taking the facts as pre-
sented to us from the district court, the Defendants
are not entitled to qualified immunity and the issue of
the officers’ decisions must be presented to a jury.
III. Conclusion
The district court did not err in denying Defendants’
Motion for Summary Judgment based on qualified immu-
nity. Accordingly, we A FFIRM the decision of the district
court.
No. 08-2365 33
M ANION, Circuit Judge, concurring in the judgment
in part and dissenting in part. What started out as
a seemingly routine response to Rudy Escobedo’s
911 call threatening his own suicide descended into an
unfortunate and certainly disturbing result. In hindsight,
at least, the response to his threat likely should not
have gone much beyond the telephone negotiations
initiated by Sergeant Taylor and continued by Officer
Ebetino. However, communications eventually broke
down and what appears to have been an unnecessary
assault with the tear gas and flash-bang devices 1 ensued.
Although I question whether the cases cited by the
court clearly established that the officers’ use of tear gas
violated the Fourth Amendment, I do believe that rea-
sonable officials would have known that using twelve
times the incapacitating quantity of tear gas to extricate
a person at home alone who had only threatened to
harm himself and was not suspected of committing
a crime “was unconstitutional without guidance from
courts.” Gossmeyer v. McDonald, 128 F.3d 481, 496 (7th Cir.
1997). For that reason, I concur with the court’s conclu-
sion that the defendants’ use of tear gas was not pro-
tected by qualified immunity.
I disagree, however, with the court’s conclusion that the
defendants are not entitled to qualified immunity for
1
Commonly used by law enforcement, flash-bang devices are
non-lethal distraction tools that “generate a loud explosion and
a brilliant flash that disorient suspects.” See “police::explosives,”
http://www.search.eb.com/eb/article-260942 (last visited Janu-
ary 29, 2010).
34 No. 08-2365
their use of the flash-bang devices. The majority opinion
holds that on the date of the incident it was clearly estab-
lished that the defendants’ employment of the flash-bang
devices was an excessive use of force. In reaching its
conclusion, the court relies upon six cases that involved
the use of such devices by law enforcement. But as ex-
plained below, those cases neither separately nor collec-
tively clearly established that the defendants’ conduct
was unconstitutional. And because the defendants’ use of
the flash-bang devices—unlike their use of the tear
gas—was not obviously in violation of the decedent’s
constitutional rights, they are entitled to qualified immu-
nity on this issue.
The first of the four cases from this circuit cited in the
majority opinion is Molina v. Cooper, 325 F.3d 963 (7th Cir.
2003)—an excessive force case. There, while executing
a search warrant, police used flash-bang devices in en-
tering a basement because they believed a suspect with a
criminal record that included an aggravated assault was
at home and had access to weapons. Id. at 973. The
officers believed that no one other than Molina was in
the house and “had ample reason to be concerned about
their personal safety.” Id. Although we were careful to
not suggest “that the use of flash bang devices is appro-
priate in every case (or even most cases),” we held that
the use of the devices “was reasonable under the circum-
stances” and did not constitute excessive force. Id.
Molina is the most relevant case for the issue con-
fronting us because it is from this circuit, it is an exces-
sive force case involving flash-bang devices, and the dis-
cussion of the propriety of using such devices was not
No. 08-2365 35
dicta. Unfortunately, the court substantially discounts the
case by saying that Molina “expressly limited [its] holding
to the circumstances presented.” Ante, at 27. But nearly
all excessive force cases are fact-specific and context-
dependent, Scott v. Edinburg, 346 F.3d 752, 756 (7th Cir.
2003), and that does not limit the relevance of such cases
in qualified immunity analyses. Molina speaks for itself:
where police are executing a search warrant and believe
that a person with a record of aggravated assault is at
home alone with access to weapons, the use of flash-
bang devices is appropriate. 325 F.3d at 973. Here, as in
Molina, no one else was present in the dwelling where the
police used flash-bang devices to incapacitate a person
who possessed a weapon. But this case is not on all fours
with Molina, mainly because Escobedo had no history
of aggravated assault and the defendants were not exe-
cuting a search warrant. Nevertheless, Molina’s relevance
to the qualified immunity analysis here is significant
and should be recognized as the leading authority in
this circuit.
The court should not simply confine Molina to its facts
and then derive “detailed guidance” from what it calls
“ ‘lucid and unambiguous’ dicta” in three evidence sup-
pression cases from this circuit. Ante, at 31. In those
three cases, the statements that were critical of the
police’s use of flash-bang devices were dicta—as the
majority opinion rightly recognizes. Although we have
stated that in limited circumstances dicta can clearly
establish the existence of a constitutional right, the dicta
must be “lucid and unambiguous,” as when a court
observes that certain conduct violates a constitutional
right but ultimately holds that the right was not clearly
36 No. 08-2365
established. Hanes v. Zurick, 578 F.3d 491, 496 (7th Cir.
2009). The dicta in those three cases does not come close
to meeting that high standard: in none of them did we
conclude that the use of flash-bang devices constituted
excessive force.
In United States v. Jones, 214 F.3d 836 (7th Cir. 2000),
the defendant appealed the denial of his motion to sup-
press evidence that was obtained by police during a no-
knock entry into his dwelling using a battering ram and
a flash-bang device. We chastised the police’s use of
the flash-bang device because (unlike here) an innocent
adult and child were inside the apartment. Id. at 838. The
district court had held that the officers’ conduct was
reasonable in all respects; we said we were “less certain,”
although we did not say that the district court was
wrong. Id. at 837. We also stated that “police cannot
automatically” employ flash-bang devices just because
they are entering the house of a drug dealer. Id. (emphasis
added). That proposition is unremarkable and in fact
implies that such devices are appropriate in some situa-
tions. In addition, we noted that were the action one for
personal injury it “would be a serious one”; but Jones
was not a personal injury action, “so whether one would
succeed is not something we need[ed to] decide.” Id. at 838.
In United States v. Folks, 236 F.3d 384 (7th Cir. 2001), a
suppression case similar to Jones, the defendant appealed
the denial of his motion to suppress evidence from a
dwelling search where the police used a flash-bang
device in an unlit residence at night. After quickly looking
inside, the officers deployed the device, and when they
entered they encountered an armed man and the defen-
No. 08-2365 37
dant. Id. at 387. The court determined that the evidence
was admissible under the inevitable discovery doctrine
but acknowledged the serious damage flash-bang
devices can cause, observing that “[t]he government may
thus risk significant claims from the careless deployment
of flash-bang devices.” Id. at 388. But focusing on the
specific facts of the case, the court concluded that the
police’s use of a flash-bang device was sufficiently
careful because the officers had looked into the residence
before tossing the devices and had carried a fire extin-
guisher to put out any resulting fires. Id. at n.2. The use
of the device was justified, we thought, because the
police’s suspicions that potentially violent people might
be at home were confirmed. Id. We did not suggest,
however, that not using the same cautious measures
would necessarily be an excessive use of force. Yet here,
the court lists the sufficient precautionary actions the
police took in Folks and treats them as if they are necessary
measures for the proper use of flash-bang devices.2 Ante,
at 27, 29-30.
And in United States v. Morris, 349 F.3d 1009 (7th Cir.
2003), the defendant attempted to suppress weapons
2
The court also suggests that Folks is unlike this case because
there were potentially violent people present there. Ante, at 27-
28, 30. In doing so, the court appears to define violent persons as
only those who pose a threat to police or others. A person who
is high on cocaine, has a gun, and is threatening to kill himself
is certainly a potentially violent individual. Police cannot be
expected to assume that when they encounter such a person,
he poses no threat of violence to them merely because he
has not previously expressly threatened them or others.
38 No. 08-2365
found during a search of his residence and his incul-
patory statements because the police had unreasonably
used flash-bang devices to facilitate the search. In Morris,
we cited Jones and Folks for the manifest proposition
that flash-bang devices are dangerous. Id. at 1012. But we
also stated that the police’s use of the devices in that
case appeared to be reasonable because of the dangerous
individuals involved, the dangerous entry point for
police, and the precautionary measures the officers took:
asking whether children were present, inspecting the
area where the devices were to be employed, and carrying
a fire extinguisher. Id. at 1013 n.1. We did not suggest,
however, that the use of flash-bang devices under dif-
ferent and possibly less dangerous circumstances and
with fewer precautions taken by police would necessarily
be unreasonable. Still, the court treats police measures
that were sufficient to approve employment of the flash-
bang devices in Morris as required measures here when it
reads Morris as suggesting that “the use of a flash bang
grenade is reasonable only when there is a dangerous
suspect and a dangerous entry point for the police, when
the police have checked to see if innocent individuals are
around before deploying the device, when the police have
visually inspected the area where the device will be
used and when the police carry a fire extinguisher.” 3 Ante,
at 28 (emphasis added).
3
The court does not mention the similarities between this case
and Morris: as discussed below, the officers were faced with
a dangerous entry point and believed they could be encoun-
tering a dangerous person.
No. 08-2365 39
The court also cites two cases from outside this circuit.
In Estate of Smith v. Marasco, 318 F.3d 497, 517 (3d Cir.
2003) (Marasco I), the Third Circuit concluded that the
district court erred in granting summary judgment
for the officers on the plaintiffs’ excessive force claim
because the plaintiffs had “proffered evidence sufficient
to require that the question of the reasonableness of the
[officers’] tactics be submitted to a jury.” Marasco I was not
a qualified immunity case, and the court merely held that
a jury question existed on whether the facts established
excessive force. Id. at 518. Indeed, it “recognize[d] that
a jury could conclude” that the force used “was a rea-
sonable response to the threat the officers perceived.” Id.
at 517. Marasco I thus provides little (if any) guidance
here: a holding that a particular employment of flash-bang
devices could (or could not) be an excessive use of force
does not clearly establish anything.
The only case cited by the court that actually held that a
particular use of flash-bang devices was an excessive
application of force is Boyd v. Benton County, 374 F.3d 773
(9th Cir. 2004). There, the Ninth Circuit concluded that
throwing a flash-bang device blindly into a room
occupied by up to eight innocent bystanders and crim-
inal suspects was unconstitutionally excessive force. Id.
at 779. Hence, in the Ninth Circuit it appears to be clearly
established that when pursuing armed suspects, the
police cannot blindly toss a flash-bang device into a
room occupied by up to eight people who were uncon-
nected to the crime under investigation. Here, however,
in sharp and material contrast to Boyd, there were no
innocent bystanders present but only an armed, suicidal
40 No. 08-2365
individual who was high on cocaine. And the defendants’
failure to look into Escobedo’s bedroom before they
deployed the flash-bang device is not surprising: he had
barricaded the door. Moreover, in this circuit Molina
demonstrates that it is not unreasonable for police to use
flash-bang devices when they believe that the only occu-
pant in a dwelling is armed and thus they have “ample
reason to be concerned about their personal safety.”
325 F.3d at 973. Molina—not Boyd—is the controlling
precedent, and it supplied a sound basis for the defen-
dants’ use of the flash-bang devices. Perhaps the only
thing clear here is that the cases the court relies upon
did not give the defendants notice and it was not clearly
established that their conduct was unlawful. In my
view, and in the words of the Supreme Court,
[t]hese . . . cases taken together undoubtedly show that
this area is one in which the result depends very
much on the facts of each case. None of them
squarely governs the case here; they do suggest that
[the officers’] actions fell in the “hazy border between
excessive and acceptable force.” The cases by no means
“clearly establish” that [their] conduct violated the
Fourth Amendment.
Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam)
(citation omitted).
This case is obviously not over. The question remains
whether it was reasonable for the police to go to this
extent in effect to rescue a man who was threatening
suicide. I assume the building had been cleared of other
occupants (given the extensive tear gas use, anyone
No. 08-2365 41
remaining would have likely exited on their own accord).
Once communications broke down and the SWAT team
arrived, the officers in charge thought it was necessary
to employ these extreme resources when the only ap-
parent threat was that of Escobedo to himself. Once the
place was saturated with tear gas and the four officers
were ordered to enter the apartment, a new scenario
involving the use of flash-bang devices emerged. In
order to determine what is reasonable under these cir-
cumstances, the conditions that existed when the four
officers reached the apartment door have to be isolated
and separated from the original decision to deploy the
SWAT team and to use what was obviously an excessive
amount of tear gas. In other words, regardless of
whether the initial assault and tear gas saturation was
reasonable, at this point the four officers were ordered to
force their way in. When they reached the door of the
apartment, they were wearing gas masks because of the
tear gas saturation. Unfortunately, this necessity limited
their vision and their hearing. They knew Escobedo was
high on drugs, was in possession of a gun, and had
refused to come out. Clearly this presented a dangerous
entry point for the officers, which may have justified
employment of the flash-bang devices. When they
reached the bedroom door that was substantially
blocked, other than to retreat, the flash-bang devices
may have been their safest option.
In conclusion, the law at the time of the incident did
not clearly establish that the defendants’ employment of
flash-bang devices was an unconstitutional application
of force, nor was their use of such devices patently
42 No. 08-2365
violative of Escobedo’s Fourth Amendment rights. There-
fore, I would reverse the district court’s contrary decision
and conclude that the defendants are entitled to quali-
fied immunity for their employment of the flash-bang
devices.
4-5-10