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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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