Overzealous Cops Not Entitled to Immunity

     TOLEDO, Oh. (CN) - Police officers who used a flash-bang grenade prior to shooting and killing an armed suspect sleeping on a couch are not entitled to immunity, ruled a federal judge.
     Bryan Jones was shot and killed by the Sandusky County Tactical Response Team (TRT) on July 11, 2010, after threatening to kill his mother and holing up for hours inside her home.
     Kim Jones - who is also a plaintiff in the lawsuit - called police to report her son had threatened her at around 10 pm.
     The Sandusky County Sheriff's Department observed Bryan Jones for over 90 minutes before acting, during which time he "appeared to be asleep ... remained seated on a couch, with his eyes closed and a shotgun across his lap, and made few movements, none of which were threatening."
     According to U.S. District Judge Jack Zouhary's opinion, Sheriff Kyle Overmyer ordered the TRT to make a "dynamic entry" into the home around 11:30, and "after peeking around the corner into the ... room where Jones remained seated on the couch, a TRT member threw a flash-bang device into the living room. After detonation of the flash-bang, the three TRT members rushed into the living room, identifying themselves as law enforcement and yelling for Jones to put down the shotgun. According to the three TRT members, Jones moved the barrel of the gun. [TRT members] Jose and Mario fired their weapons, killing Jones."
     Tracy Jones, the administrator of Bryan's estate, along with Kim Jones, sued Sandusky County, Sheriff Overmyer and deputies Jose Calvillo and Mario Calvillo for entering the home without a search warrant, use of excessive force relating to the flash-bang and the officers' use of deadly force.
     The Northern District Court of Ohio denied both parties' motions for summary judgment, and the Sixth Circuit affirmed in regards to the search warrant and deadly force claims, but remanded the excessive force claim regarding the flash-bang grenade for further analysis.
     Judge Zouhary cited several Sixth Circuit cases in determining that a jury could conclude the officers' use of a flash-bang qualifies as excessive force, including the 2006 case Estate of Bing v. City of Whitehall.
     In Bing, a man barricaded in a home refused to surrender to police and began shooting after officers used a flash-bang upon entering the home.
     A second flash-bang was detonated at the rear of the house to distract the suspect, but the grenade started a fire and the suspect's body was eventually found with gunshot wounds in his back.
     Judge Zouhary writes: "the Sixth Circuit held that use of the first flash-bang was reasonable force because ... Bing posed a serious and immediate threat to police and bystanders, and refused to surrender to police. But for purposes of the analyzing use of the second flash-bang device, the Sixth Circuit assumed the officers 'knew that such devices would likely ignite flammable materials and thereby cause a fire.' In those circumstances, use of the second flash-bang device was unreasonable, excessive force."
     Judge Zouhary reasoned "a jury could find the constitutional violation in this case even more clear-cut than in Bing. Unlike Bing, Jones had not fired a gun at neighbors or officers. Nor had he refused to surrender to police. Jones was instead asleep for some time and police, at best, made one failed attempt to talk to him; Jones made no threatening gestures with the shotgun he held on his lap during that time; and his mom, against whom Jones made the earlier verbal threat, was not nearby."
     He continues: "A jury could find that Jones posed no immediate risk to anyone until (at the earliest) after the TRT deployed the flash-bang. Moreover, a jury could conclude that a reasonable officer would know that if the officer awakened a sleeping suspect with a flash-bang device, the explosion would disorient the suspect."
     Judge Zouhary concluded his opinion with a stern rebuke of the tactics used by the police against Jones:
     "After entering Jones' home covertly, police used a flash-bang device against a sleeping suspect who posed no immediate threat to police, without giving Jones an opportunity to comply with police requests to drop the shotgun that lay immobile on his lap, and in a manner that substantially increased the risk that Jones, disoriented and awakened, would not comply with (or understand) police commands, would be perceived as a threat to the TRT members, and would be subjected to deadly force. Under Bing, a reasonable officer would know that use of a flash-bang device in such circumstances violates a suspect's Fourth Amendment rights," he wrote.