Carlson v. Fewins

• Decision Date: 11 September 2015
• Docket Number: No. 13–2643.,13–2643.
• Citation: 801 F.3d 668
• Parties: Robert CARLSON, Personal Representative of the Estate of Craig Carlson, Plaintiff–Appellant, v. Scott FEWINS; Charles Jetter, Individually and Officially; Grand Traverse County, a Municipal Corporation; Steve Drzewiecki, Individually and Officially, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

801 F.3d 668

Robert CARLSON, Personal Representative of the Estate of Craig Carlson, Plaintiff–Appellant

v.Scott FEWINS; Charles Jetter, Individually and Officially; Grand Traverse County, a Municipal Corporation; Steve Drzewiecki, Individually and Officially, Defendants–Appellees.

No. 13–2643.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2015.

Decided and Filed: Sept. 11, 2015.

Rehearing Denied Sept. 29, 2015.

ARGUED:Mark R. Bendure, Bendure & Thomas, Detroit, Michigan, for Appellant. Christopher Kevin Cooke, Cooke Law, PLLC, Traverse City, Michigan, for Appellees Fewins, Jetter, and Grand Traverse County. Mary Massaron, Plunkett Cooney, Bloomfield Hills, Michigan, for Appellee Drzewiecki.ON BRIEF:Mark R. Bendure, Bendure & Thomas, Detroit, Michigan, for Appellant. Christopher Kevin Cooke, Cooke Law, PLLC, Traverse City, Michigan, for Appellees Fewins, Jetter, and Grand Traverse County. Mary Massaron, Plunkett Cooney, Bloomfield Hills, Michigan, for Appellee Drzewiecki.

Before: COLE, Chief Judge; MERRITT and BATCHELDER, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

This is a Fourth Amendment, constitutional tort case brought under 42 U.S.C. § 1983¹ against Grand Traverse County, its sheriff, and other officers whose activities on the evening of November 9, 2007, and the next morning, ended in the death of Craig Carlson at his house. In Johnson v. United States, 333 U.S. 10, 13–15, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the Supreme Court pointed out succinctly the function of the Fourth Amendment warrant requirement² as an instrument designed to force law enforcement agencies to seek review and regulation of their proposed conduct by an independent judicial officer, despite its “inconvenience to the officers and some slight delay”:

The point of the Fourth Amendment, which is often not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officers engaged in the often competitive enterprise of ferreting out crime.

See also Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quoting Johnson, 333 U.S. at 14, 68 S.Ct. 367 ).

Approximately sixty police officers converged on Craig Carlson's house beginning around 9:00 p.m. after telephone calls from family members indicated that Carlson, who was armed and dangerous, was threatening suicide while alone in his house. The next morning, hours after their last contact with Carlson, officers broke the windows and flooded the house with tear gas. The gas did not drive Carlson from his house as the officers intended. When Carlson finally reacted, hours later, he began shouting and threatening officers in his yard. A sniper, who believed Carlson was preparing to shoot one of those officers, shot through a window, killing Carlson.

The district court granted summary judgment to the county and the officers in charge of the operation who did not seek a warrant allowing them to attack Carlson's house with tear gas or seize him inside.

We reverse this ruling and remand for a jury trial. The district court did not grant summary judgment in the case against the sniper who killed Carlson, but a jury returned a verdict in his favor. Carlson's Estate appealed various rulings in the jury trial, but we find no error and affirm the judgment below in that case.

I. Factual Background

Supreme Court precedent instructs us to extend the normal benefits of “all justifiable [factual] inferences” to the nonmovant plaintiffs when reviewing a grant of summary judgment for the defendants. Tolan v. Cotton, 572 U.S. ––––, ––––, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Accordingly, we recount the facts of this case in the light most favorable to Carlson's Estate.

The decedent, Craig Carlson, called 911 at 8:30 on the evening of November 9, 2007, and requested a visit from a deputy to “talk.” Deputy Jason Hamilton had conducted similar “welfare checks” on Carlson the week before in response to calls from an anonymous caller and Carlson's sister, Jaqueline Smith, who each expressed concern that depression, a recent job loss, and pending domestic violence charges might lead Carlson to hurt himself. On those prior occasions, Hamilton noted that Carlson seemed intoxicated but “very passive.” Following those visits and a conversation in which Smith indicated that Carlson was well armed and might get in a shootout with police if they tried to take him into custody, Hamilton had filed an internal report to help other officers respond appropriately to any future calls.

Smith also called 911 on November 9th to get help for her brother because she believed that he intended to die, perhaps by provoking a shootout. According to Smith, Carlson's “guns [we]re loaded” and he was “ready to die and put a bullet in his heart.” Smith explained:

He said he has one [gun] just empty and he's going to point it intentionally because he is dying tonight one way or another whether they shoot him or not and if they don't, he has guns hidden all over the house ... everywhere that are loaded and if he has to he'll shoot somebody in the knee or the arm forcing them to take him out.

She reported that Carlson had “like 2,000 rounds of ammunition.” Robert Carlson—Carlson's brother and the personal representative of the Estate in this action—also called 911 that evening, reiterating his sister's concerns and reporting that Carlson had “already paid for his funeral.” The family's calls indicated that Carlson “probably [wa]s armed and dangerous ... [a]nd [ ] wanting probably to provoke an officer into shooting him so he wo[uld]n't have to do it himself, shoot himself.”

Concerned that Carlson might try to provoke a shooting, a dispatcher called Carlson to let him know that a deputy sheriff was going to visit him and that the deputy would want to talk outside. Carlson rejected that idea, explaining that he had refreshments available (“pop, beer or coffee”) and that he “ha[d] no desire, this is not a, I want to shoot you, you shoot me thing.” Carlson eventually spoke with a state trooper by phone and reportedly felt better after discussing his problems.

Officers began arriving at Carlson's house at around 9:00 p.m.³ They parked down the street to avoid detection and walked to the house. Carlson's house was well lit, and unobstructed windows provided a clear view into the house. The first two officers reported seeing Carlson in his basement loading a “long gun” and later putting a pistol to his own head. They waited outside in the dark for backup.

As more officers arrived, two took positions at the rear of the house to prevent Carlson from escaping unobserved. One of those officers saw Carlson open his sliding back door and fire a single shot into the woods shortly after 10:00 p.m. The parties agree that Carlson was unaware of the officers' locations at that time and was shooting to draw attention, though testimony from officers suggests Carlson may have believed they were near enough to hear him. The parties also agree that this was the only shot Carlson fired.

Shortly thereafter, at Grand Traverse County Sheriff Scott Fewins's request, a large interdepartmental “Emergency Response Team” led by Traverse City Police Sergeant Steve Drzewiecki converged on Carlson's house. This Team included approximately sixty officers from various agencies with special training in weapons and tactics appropriate for potentially volatile encounters. They surrounded the house, working in shifts to maintain a secure perimeter throughout the cold November night. The Team flattened the tires on Carlson's truck to prevent him from escaping. They also escorted Carlson's neighbors to safety, leaving only a disabled man who spent the night in his basement with his wife until tear gas deployed against Carlson forced him to leave the area the following morning.

At the instruction of Fewins and Drzewiecki, a police negotiator telephoned Carlson at 11:30 p.m. and asked how they could resolve the situation. Carlson asked again for an officer to come inside and talk with him. The negotiator conferred with Fewins who rejected that plan, citing the prior shot into the woods. The negotiator reconnected with Carlson and explained that the prior gunshot made it impossible for an officer to come inside to speak with him. Carlson denied firing the gun and denied wanting to harm anyone. The negotiator confirmed the officers' reports of the gunshot and the weapons and called Carlson back. During the third call with the negotiator, Carlson became agitated and threatening. According to the negotiator, Carlson claimed falsely to have been a sniper in Beirut but still insisted that he did not want to hurt anyone. Carlson continued to ask to speak with an officer in person but also said he was ready for “war.”

The Team shut off Carlson's gas line to deprive him of heat and set up lights to illuminate his house. They cut his electrical power. The negotiator testified that Carlson said, “I know at some point you are going to deploy tear gas, and when you do, that will be the start of the war. And I'm going [to] kill everybody.” Carlson refused to answer the negotiator's calls after 3:30 a.m., but he continued making calls to his sister, leaving eleven voicemail messages in the early hours of November 10. She testified that 911 dispatchers asked her not to answer those calls, and she complied.

The Team maintained the siege of the house all night without seeking a warrant. They did request and receive coffee, granola bars, and hot chocolate. Fewins later indicated that he never considered asking for a warrant because he believed it was unnecessary. Asked to explain why he would not need a warrant to arrest Carlson in his home, Fewins...