6th Cir. Says Tear Gas|Use Required Warrant

(CN) - If police had time during a 12-hour standoff with an armed, suicidal man to get snacks, they had time to get a warrant before tear-gassing his home, the Sixth Circuit ruled.

Craig Carlson's family called Grand Traverse County, Mich. police in November 2007 to report that Carlson was threatening to kill himself. They indicated that he was armed and alone at his home in Interlochen, Mich.

Approximately 60 police officers descended on Carlson's house around 9 p.m., but Carlson refused to leave his home.

He fired one shot into the woods shortly after 10 p.m., but it is unclear if he was aware of the police presence near his property at that time or if he was just trying to get attention, according to court records.

In the morning, after attempts at negotiation failed, the police broke the windows and flooded the house with tear gas, but Carlson still would not leave. When he finally reacted, hours later, he began shouting and threatening the officers in his yard.

A sniper soon shot and killed Carlson, believing that Carlson was about to shoot an officer. During the entire 12-hour standoff, the police never obtained a warrant to permit them to use tear gas on the house, or enter it to seize Carlson, court records show.

The Sixth Circuit said this oversight was not excusable by exigent circumstances, especially given that the officers had time to call for coffee and snacks. It reversed a Western Michigan district court order dismissing charges against the county and supervising officers.

"The choice to call for granola bars but not a warrant appears to have been driven by the sheriff's misunderstanding of the Fourth Amendment," Judge Gilbert Merritt wrote. "The facts available at summary judgment raise an inference that the team had the time - and thus the constitutional obligation - to get a warrant from a judge before entering Carlson's house with tear gas and surveillance equipment."

Based on the record, a jury could find that the officers were not in immediate danger while attempting to negotiate with Carlson throughout the night, the court found.

Merritt said a jury must "decide whether the defendants' various warrantless seizures and searches during a standoff that began with requests to save Carlson's life and ended with a sniper shooting him dead were reasonable."

However, the Cincinnati-based appeals court upheld the acquittal of the sniper, Charles Jetter, whose culpability in Carlson's death went before a jury.

Carlson's family claimed that Jetter may have destroyed evidence, because Carlson's shirt was lost at the morgue, sometime around the time of his postmortem exam. The blood-spattered shirt could have indicated whether Carlson had shouldered his rifle when he died.

"The district court offered independent reasons for rejecting the two proposed spoliation instructions: no communication records appeared to have gone missing, and Jetter did not seem to have been responsible for the disappearance of Carlson's clothing. These conclusions are adequately supported by the record," Merritt wrote.

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