Bing ex rel. Bing v. City of Whitehall, Ohio

• Citation: 456 F.3d 555
• Decision Date: 01 August 2006
• Docket Number: No. 05-3889.,05-3889.
• Parties: Estate of William J. BING, through its Administrator Thomas E. BING; Brian Bing, through Administrator Thomas E. Bing, Plaintiffs-Appellees, v. CITY OF WHITEHALL, OHIO; Whitehall Police Department, Defendants, Mark Showalter, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

456 F.3d 555

Estate of William J. BING, through its Administrator Thomas E. BING; Brian Bing, through Administrator Thomas E. Bing, Plaintiffs-Appellees, v. CITY OF WHITEHALL, OHIO; Whitehall Police Department, Defendants, Mark Showalter, et al., Defendants-Appellants.

No. 05-3889.

United States Court of Appeals, Sixth Circuit.

Argued: April 27, 2006.

Decided and Filed: August 1, 2006.

ARGUED: Mark D. Landes, Isaac, Brant, Ledman & Teetor, Columbus, Ohio, for Appellants. Linda Leah Reibel, Worthington, Ohio, for Appellees. ON BRIEF: Mark D. Landes, Jeffrey A. Stankunas, Isaac, Brant, Ledman & Teetor, Columbus, Ohio, for Appellants. Linda Leah Reibel, Worthington, Ohio, for Appellees.

Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.

ROGERS, J., delivered the opinion of the court in which, SUHRHEINRICH, J., joined. GILMAN, J. (pp. 572-74), delivered a separate concurring opinion.

OPINION

ROGERS, Circuit Judge.

This is an interlocutory appeal seeking reversal of the district court's summary judgment order denying qualified immunity to the defendant police officers. We reverse in part and affirm in part.

On the evening in question, decedent William Bing fired a gun into the air and into the ground near his home, which prompted witnesses to telephone the Whitehall police. Upon arriving at the scene, the police learned from witnesses that Bing had retreated into his home. The police, backed up by the S.W.A.T. team, surrounded Bing's house, attempted to communicate with Bing, and subsequently tried to force him outside using pepper gas. Eventually, the S.W.A.T. team invaded the house and killed Bing. During the raid, the police employed a flashbang device that burned the house down.

Bing's estate and his brother Brian brought this suit under the Fourth and Fourteenth Amendments, 42 U.S.C. §§ 1983, 1986, 1988, and state law against the City of Whitehall, the police department and various individual police officers. The claims relevant to this interlocutory appeal allege that the police officers violated Bing's clearly established rights when they entered his home without a warrant, used excessive force by employing pepper gas and flashbang devices, unreasonably used deadly force when they shot and killed him, and unreasonably destroyed property when they burned down the house. The district court denied the officers' motion for summary judgment on the basis of qualified immunity because genuine issues of material fact exist and require that a trial be held. This interlocutory appeal followed.

We reverse in part. The officers lawfully effected a de facto house arrest of Bing when they surrounded his house, despite not obtaining a warrant, because Bing's firing of shots in the neighborhood, among other circumstances, created a dangerous exigency. For the same reason, the police did not need to obtain a warrant before entering the house. Moreover, the police reasonably employed pepper gas and a flashbang device in their attempt to force him outside. Assuming that the police's use of a second flashbang device that set Bing's house on fire violated his constitutional right to be free from excessive force, the right in this context was not "clearly established." However, the district court properly denied summary judgment with respect to the claim of deadly force with regard to the shooting of Bing. If, as the district court posited, Bing was unarmed after the police entered the home and did not threaten them in any manner as they approached, the officers violated his clearly established right not to be attacked with deadly force. The officers, therefore, enjoy no immunity from the police-shooting deadly force claim, and summary judgment was properly denied as to that claim.

I.

On October 14, 2002, sometime in the evening, William Bing fired his gun into the ground and into the air to frighten away from his property a group of minors who had been taunting him. Around 6:30 p.m., Whitehall police arrived in Bing's neighborhood, responding to reports of shots fired in the neighborhood. The initial report, as heard over the police radio, said that a juvenile wearing red clothing had fired a weapon. The police went to Bing's neighborhood to investigate. People in the street, including a group of juveniles, directed Officers Salyers and Adkins to Bing's house. A crowd was gathered in front of Bing's house. The people in the street told the police that the reported gunman was inside the house and armed. The minors in the street reported to Detective Grebb that Bing had shot at them. Other neighbors called the police to complain about Bing after the initial report of shots fired.

The officers set up a perimeter around Bing's house within minutes. The people in the street informed Officer Salyers that the reported gunman appeared intoxicated and that he had come out of the house, fired a shot,¹ and returned into the house. Officer Salyers subsequently retrieved his shotgun from his police car "[f]or protection" and took up a position nearby. Officer Salyers took out his shotgun, he said in his deposition, because he felt that his life was potentially in danger, given the report of shots fired.

Fearing for the community's safety, the police instructed Bing's neighbors to evacuate their homes, but the neighbors refused. The presence of the neighbors increased the police's level of concern. In an attempt to contact Bing, the police had the police dispatcher call Bing's telephone. The initial attempt at making contact with Bing via phone was meant, according to one policeman, to get "him to come out of the residence so we could talk about what happened." Bing's phone line was busy.

Around the same time, the police checked to see if they had been to Bing's residence before. The officers learned that police had been called to Bing's residence in the past and that he had fired shots in the past. Officer Salyers in his deposition said of this new information: "It definitely change[d] the assessment. It [told] us that there [were] definitely weapons in the house and that [Bing] has used them in the past." The perceived danger of the situation prompted the officers to decide not to go in immediately, according to Officer Salyers. "That's common sense. You don't go running into a house where somebody's shooting."

Through the windows, Officer Salyers could see Bing moving from room to room. Officer Salyers yelled at Bing to leave his gun in the house and walk out to the driveway with his hands in the air. Bing ignored Officer Salyers, but Salyers continued for about twenty minutes to shout his demand that Bing surrender. According to the officers' depositions, it was their intent to arrest Bing the moment he came out of his house. When Bing refused to come out, Sgt. Allen decided that they would have to take more extraordinary measures: he called in the S.W.A.T. team.

The S.W.A.T. team arrived at the scene, according to Sgt. Brandeberry, its commander, at approximately 7:30 p.m., about an hour after the first officers arrived. Officer Salyers left the scene, changed into his S.W.A.T. gear, and returned before 8:30 p.m. Approximately eleven team members ultimately responded. The S.W.A.T. team set up a command center about nine houses up from Bing's residence. Sgt. Brandeberry remained at the command center with the hostage negotiators, Lieutenant Zitsky, Hostage Negotiator Forbes, and Officer Showalter.

In his deposition, Sgt. Brandeberry stated that the "first thing" he did upon arriving at the command center was "[a]ttempt[] to gather intelligence from the perimeter patrol officers as to what they had, what had transpired thus far." The perimeter officers, apparently not relying on the initial police radio report, told Brandeberry that Bing had fired his weapon "at" neighborhood children. Sgt. Brandeberry also stated that he believed, from the moment of his arrival, that exigent circumstances made it unnecessary to seek a warrant. "[An][a]rrest would certainly have been made had [Bing] made himself present for it." Sgt. Brandeberry said that he felt that there was a "possibility" of immediate danger to the people outside Bing's house. Bing "had show[n] his propensity to willfully shoot at individuals," he explained. The plaintiffs' lawyer and Sgt. Brandeberry had the following exchange during his deposition:

Q. . . . we're talking about maybe three and a half hours. In that period did you see any danger to others?

A. There is always that danger to others. He is an armed individual who has already fired shots at individuals.

Q. In this three and a half hour period that we're talking about what was your plan for Mr. Bing?

A. It was my hope[] that he would either pick up the phone and talk to us or eventually the gas would bring him out or he may give up of his own volition.

Q. So the plan was to arrest him.

A. Yes, ma'am.

Q. Based on the shot or shots fired, based on the original report the shots had been fired.

A. Correct.

At about 8:43 p.m., the police broke one of Bing's windows with a special tool and threw into the house a "bag phone," a portable communication device with a microphone and a secure line between two receivers. The police rang the phone many times but Bing did not answer.

Around 8:54 p.m., Bing remained holed up and incommunicado, so the police decided to increase the pressure on him to leave the house by firing pepper gas into the house through the windows. The police proceeded to break the windows in Bing's house and fire six canisters of pepper gas into the residence.

Around 9:02 p.m., the police heard Bing coughing and gagging on the bag phone microphone. After the coughing, Bing came out the side door into the driveway under the carport. Bing retreated into the house and closed his door, however, when the officers approached him to effect an arrest. The police fired at least two more series of six gas canisters each, but the gas never forced Bing out of his house.

Between 9:30...