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.