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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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  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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