Estate of Escobedo v. Bender

Decision Date05 April 2010
Docket NumberNo. 08-2365.,08-2365.
PartiesESTATE OF Rudy ESCOBEDO, (Deceased) (Raquel Hanic, Personal Representative of Estate), Plaintiff-Appellee, v. Martin BENDER, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

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Gary D. Lebrato, Fort Wayne, IN, Michael K. Sutherlin, Attorney, Sutherlin & Associates, Indianapolis, IN, for Plaintiff-Appellee.

Robert T. Keen, Jr., Attorney, Carson Boxberger LLP, Fort Wayne, IN, for Defendants-Appellants.

Before MANION and KANNE, Circuit Judges, and KENDALL, District Judge.*

KENDALL, District Judge.

Raquel Hanic, the personal representative of the estate of Rudy Escobedo ("the Estate"), filed suit pursuant to 42 U.S.C. § 1983 and Indiana state law against the City of Fort Wayne and against individual members of the Fort Wayne Police Department. Hanic asserted that the individual officers used excessive force against Escobedo when they deployed tear gas into his apartment in an attempt to extricate him from the unit where he had isolated himself threatening to commit suicide. After refusing to come out, the officers used additional tear gas and flash bang grenades to enter the apartment, setting fire to the exterior room before throwing the flash bang grenades into the darkened bedroom inches from Escobedo's head rendering him blind and deaf before shooting him to death. The Defendant Officers filed a motion for summary judgment asserting, among other things, that they were entitled to qualified immunity for their actions. The district court denied the motion, in part, finding that the officers were not entitled to qualified immunity for the entry with the tear gas and flash bang devices. The officers then filed this interlocutory appeal. For the following reasons, we affirm.

I. Background

We begin by setting forth the facts as the district court found them, that is, in the light most favorable to the Estate. See Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); see also Jewett v. Anders, 521 F.3d 818, 822 (7th Cir.2008) (Appellate court's review of a denial of qualified immunity is framed either by the facts as assumed by the district court or by the facts as set forth by the plaintiff). On July 19, 2005, at 4:24 a.m., Rudy Escobedo ("Escobedo") dialed 911. He told the dispatcher that he was armed with a gun and wanted to shoot himself. He also told the dispatcher that he was high on cocaine. During the 911 call, Escobedo asked the dispatcher to contact his psychologist and he provided the dispatcher with the psychologist's phone number. Throughout the conversation, Escobedo expressed that he was seeking help and that he desperately needed to talk to someone. Escobedo stated that while he was contemplating killing himself, he had no intention of harming anyone else including the police. Escobedo never made any explicit threats to the police or other persons during the call stating instead, "I'm not going to hurt anybody"; and "I just want help." In summarizing the overall tone of the 911 call, the district court made the factual determination that Escobedo was in despair about his drug addiction and his life in general and was suicidal.

Sergeant C.M. Taylor ("Taylor") (not a defendant in the present lawsuit) was the first officer to speak with Escobedo after the 911 call via his personal cell phone. Taylor called Escobedo at 4:55 a.m. and Escobedo informed him that he was armed and planned to commit suicide. After approximately twenty-five minutes, Taylor decided to contact the Crisis Response Team ("CRT") and the Emergency Response Team ("ERT") to respond to the situation.

Once the CRT and ERT arrived, Taylor transferred the phone call with Escobedo to Bernard Ebetino ("Ebetino"), a negotiator for CRT. Ebetino took over negotiations with Escobedo at 5:42 a.m. Escobedo repeated that he was suicidal and armed, asked again to speak with his psychologist and said that he wanted help and medicine for his drug addiction. At 6:23 a.m., the CRT began using a "direct link phone system," a device that allowed several other officers on the seventh floor to listen to the conversation between Escobedo and Ebetino; however, the CRT did not follow protocol for handling the systematic overview of negotiations in that the CRT commander relied on information from officers near the mobile direct link phone system. Normal procedures called for the CRT commander to listen to the negotiations via the direct link system. As a result, the CRT commander did not always learn about important information and accordingly could not inform the scene commander and the ERT commander about such information. For instance, as the district court pointed out, the CRT commander did not recall hearing or learning that Escobedo had removed objects from his apartment door, something that would have been considered a sign of progress.

When this switch was made, Ebetino stopped using Taylor's cell phone and began using another officer's personal cell phone. Taylor's cell phone was not used again during the incident. There is no evidence in the record that Escobedo was told of the change of phones or given the new phone number in case the call was terminated. In fact, after the initial round of tear gas was fired into Escobedo's apartment, the record indicates that Escobedo attempted to call Taylor's cell phone multiple times with no success. Escobedo's comments to Ebetino continued to include threats of suicide and a fear of being killed by the police. At times, the conversation took a positive turn and Ebetino believed Escobedo was close to surrendering. But Escobedo would always return to comments about suicide, fear of being killed by the police and his addiction. At one point, Ebetino told Escobedo that the police were trying to contact his psychologist and bring him to the scene so Escobedo could talk to him when he left his apartment. Eventually, Sergeant Kevin Hunter ("Hunter"), head of the CRT, spoke with Escobedo's psychologist but never invited him to the scene or asked him to assist. Hunter recalls that the psychologist told him that he did not think that Escobedo had a history of using weapons or attempting suicide.

Ebetino testified that during the negotiations, Escobedo did not make or constitute a threat to the police or to the public, except "the only indication ... was when he said he wanted to come out of his apartment with the gun." This statement occurred at 8:28 a.m., which was after supervisors decided, at about 8 a.m. to fire tear gas into Escobedo's apartment and then make entry. At some moments, Ebetino believed Escobedo was barricading his door and at other moments it sounded as if Escobedo was removing the barricade by the door. At 7:27 a.m. he thought that Escobedo was removing the barricade from the door and he assumed (wrongfully) that this information was communicated to the commanders.

During the course of negotiations, Hunter, Lieutenant Kevin Zelt ("Zelt") (head of ERT), and Deputy Chief Martin Bender ("Bender") (commander of the scene) discussed using tear gas against Escobedo. Bender had overall authority over the incident and scene, but relied on Zelt to choose the tactics against Escobedo and on Hunter for information regarding the negotiations. Hunter had to rely on information from other CRT members to supply to Bender. As mentioned previously, normal procedures call for Hunter to listen to negotiations via the direct link system, but he did not do so. At some point between 6:45 and 8 a.m. the idea of using tear gas was first broached. Bender later testified that the key factor in his decision to use tear gas on Escobedo was that by 8 a.m., "it was our belief that the negotiations were not going anywhere," pedestrian and vehicle traffic was increasing in the area, and Hunter had told him that Ebetino heard noises suggesting that Escobedo was barricading his apartment. Although Bender was not told that Escobedo had expressed that he was not going to hurt the police or anyone else, Bender believed that Escobedo was a threat to the public because of "the mere fact that he was armed with a weapon and threatening to commit suicide."

Zelt first suggested using tear gas against Escobedo as a "standard procedure" and "the next logical step" when communications or negotiations with a person are not succeeding and Escobedo was barricading and fortifying his position. Although Zelt stated that he believed Escobedo had made threats of some kind, the district court found that it was not clear that Zelt believed this at the time of the incident or formed that opinion afterwards. Regardless, Zelt could not identify any statement Escobedo made that Zelt knew of at the time of the stand-off that constituted an explicit threat to the police or public. Bender also acknowledged that Escobedo had not committed any crime by the point in time that the tear gas was deployed. Zelt stated that the purpose of forcing Escobedo from his apartment with tear gas was not to arrest him but to take him into custody for a 24-hour emergency mental health detention. 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. He chose 8:30 a.m. as the deadline for negotiations because he thought it was important to introduce the tear gas before the peak downtown hour although he was aware that most people working downtown were already at work by 8:30 a.m. Hunter concurred with Zelt's decision to use tear gas, focusing on the potential danger to the increasing number of persons who would be in the downtown area and near the hospital that was across the street from Escobedo's apartment building. Deputy Chief Douglas Lucker ("Lucker") was also on the scene at various points and participated in discussions with Bender, Zelt, and Hunter on the use of tear...

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