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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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