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Judge dissents on qualified immunity issue

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Judges on the 7th Circuit Court of Appeals disagreed as to whether law enforcement officers were entitled to qualified immunity for their use of flash-bang devices in attempting to remove a suicidal man from his home.

In the Estate of Rudy Escobedo (deceased) v. Martin Bender, et al., No. 08-2365, dissenting Judge Daniel Manion didn't think the defendants' use of flash-bang devices obviously violated Rudy Escobedo's constitutional rights. Escobedo called 9-1-1 saying he was high and suicidal, and that he had a gun, but he never threatened to hurt anyone but himself. Law enforcement officers, the crisis response team, and emergency response team went to his apartment. Protocol in dealing with this type of situation wasn't followed and after several hours, the response teams fired in excessive amounts of tear gas to try to force Escobedo out of his apartment. When that didn't work, they forced their way in and threw one flash-bang grenade device into the apartment. They then threw a flash-bang device into a bedroom where Escobedo was. It exploded so close to his head that it may have rendered Escobedo blind and deaf when he was shot by police when they entered the room. He died from the shooting.

Escobedo's estate filed a complaint under 42 U.S.C. Section 1983 against many of the law enforcement officers involved. The District Court denied some of the defendants' motion for summary judgment with respect to their use of the tear gas and flash-bang grenade devices. The District Court held those officers weren't entitled to qualified immunity.

Judge Michael Kanne, and Judge Virginia M. Kendall - District judge for the Northern District of Illinois who was sitting by designation - affirmed the lower court's ruling. They determined that on the date of the incident, the defendants were properly on notice that the use of tear gas and flash-bang devices in a closely analogous context was deemed unreasonable. The state of the law at the time of the incident gave the defendants fair warning that their treatment of Escobedo was unconstitutional, wrote Judge Kendall.

"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 established right and therefore the Defendants are not protected by qualified immunity," she wrote.

The majority also relied on previous caselaw to find the officers used unreasonable force with their use of the flash-bang devices.

Judge Manion concurred with the majority's conclusion regarding the use of the tear gas - that it wasn't protected by qualified immunity. However, he believed the defendants were entitled to qualified immunity on the use of the flash-bang devices. He didn't think the cases cited by the majority separately or collectively clearly established that the defendants' conduct was unconstitutional.

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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