Officers Liable for Use of Tear Gas, Stun Grenades

(CN) - Indiana police officers used excessive force when they burst into a suicidal man's apartment with tear gas and "flashbang" grenades before shooting the man to death, the 7th Circuit ruled.

The Chicago-based appellate panel upheld a district court ruling that members of the Fort Wayne Police Department can be sued over their treatment of Rudy Escobedo, who had not threatened to harm anyone but himself and was not accused of any crime.

Escobedo, high on cocaine, armed and suicidal, called 911 in July 2005 to ask for help, saying he needed to talk to somebody. He said he was thinking about suicide and pleaded with the dispatcher to call his psychologist, but made it clear that he didn't intend to harm anyone else, including police, the ruling states.

The department's Crisis Response and Emergency Response Teams responded and urged Escobedo to come outside. The negotiations dragged on until about 8:30 a.m., when Lieutenant Kevin Zelt, head of the ERT, decided to use tear gas.

"Zelt indicated that the decision to introduce tear gas was also motivated by his concern that his officers' readiness was deteriorating because it was hot outside," U.S. District Judge Virginia Kendall for the appellate panel.

Officers shot 12 times the normal incapacitating amount of tear gas into Escobedo's small apartment. Two team members then busted into the apartment after tossing in flashbang devices, also called stun grenades. The devices rendered Escobedo "blind and deaf" while the officers stormed in. After ordering Escobedo to drop his weapon, which Escobedo was holding against his own head, both officers fired. Escobedo was pronounced dead at the scene.

Raquel Hanic, representing Escobedo's estate, sued the officers in district court. The officers claimed they were entitled to qualified immunity, but the district court said their use of tear gas and flashbang devices was excessive.

The officers appealed, but fared no better in the 7th Circuit.

"When the officers made their decision to enter the apartment, there was no one else at risk in the apartment and the reasons given by the officers for entering the apartment at that time were solely traffic concerns and the depleted energy of the officers on the scene; they were not based on any concern that Escobedo was an imminent threat to others," Judge Kendall wrote. "By the time the defendants entered Escobedo's apartment they had already fired 12 times the incapacitating amount of tear gas into his home."

This constituted excessive force, she said.

"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," Kendall wrote.

She added that flashbang devices are rarely appropriate, and should only be used with an "unusually dangerous individual," after officers have scoped out the apartment and sounded a warning.

"The record reflects that the defendant officers had no idea where Escobedo was located when they threw the first flashbang into his apartment," Kendall wrote. "Additionally, there is no evidence that the officers visually inspected the area before throwing the flashbang device or that they looked inside, even ever so slightly, to see if anyone else was present that may be injured by the flashbang."

The court refused to dismiss the case on the basis of qualified immunity.

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