Estate of Rudy Escob v. Brian Marti

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2426

E STATE OF R UDY E SCOBEDO

(deceased) (Raquel Hanic, Personal

Representative of Estate),

Plaintiff-Appellant,

v.

O FFICER B RIAN M ARTIN , ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 05 CV 0424—Theresa L. Springmann, Judge.

A RGUED M AY 31, 2012 — D ECIDED D ECEMBER 13, 2012

Before M ANION, K ANNE, and W ILLIAMS, Circuit Judges.

M ANION, Circuit Judge. In the early morning hours

of July 19, 2005, Rudy Escobedo became suicidal

and ingested cocaine. He dialed 911 and told the operator

he had taken cocaine, had a gun to his head, and wanted

to kill himself. An emergency response team was dis-

patched to negotiate with Escobedo and to try to get him

to put down his weapon and leave his apartment volun-

2 No. 11-2426

tarily. Negotiations proved unfruitful and the police

opted to deploy a tactical response to remove Escobedo

from his apartment, as they thought he presented a

danger to the community around him. After deploying

two volleys of tear gas into Escobedo’s seventh-floor

apartment, a team of six officers wearing gas masks

and other protective equipment broke into the apartment.

The officers found him holed up in his closet with a gun

to his head. The officers ordered him to put down

the weapon, but Escobedo did not comply and was shot by

two of the police officers. Escobedo’s Estate brought a

§ 1983 excessive force claim against the police and the

City of Fort Wayne. After a variety of motions were

filed and a partial summary judgment was granted

and appealed, the case went to trial and the jury found

in favor of the defendants. The district court also granted

judgment as a matter of law in favor of the defendants

after the jury entered its verdict. The Estate now

appeals, and we affirm.

I. BACKGROUND

A. Escobedo calls 911

Early in the morning of July 19, 2005, Rudy Escobedo

became suicidal and ingested cocaine. From his

apartment in Fort Wayne, Indiana, he called his

sister Renee and left a message telling her he loved her.

He then called his other sister Regina and told her that

he had done something stupid, that he was going to jail

for a long time, and that he loved her. Shortly after

4:00 a.m., he dialed 911 and informed the dispatcher

No. 11-2426 3

that he had taken cocaine, had a gun to his head, and

wanted to shoot himself. He claimed that the police were in

his apartment, but also said that he was alone and that

the police were outside his apartment and that he did

not want them to enter. He stated that he did not want

to hurt anyone, but would kill himself if the police

entered his apartment. He gave the dispatcher the

name and telephone number of his counselor, Dr.

Jim Cates, and said he wanted “someone” to talk to.

The dispatcher notified the police, and Officers Foust

and Fairchild soon arrived at Escobedo’s apartment. The

apartment was located on the seventh floor of a building

on West Berry Street in downtown Fort Wayne. St. Joseph

Hospital was two blocks from his apartment, as was a

church with a preschool and several other local businesses.

Officer Foust knocked on Escobedo’s door and received no

answer, but he heard someone (presumably Escobedo)

chamber a round into a handgun and move items around

inside the apartment.

Sgt. C. M. Taylor, who had also been dispatched to

Escobedo’s apartment, arrived at 4:38 a.m. and spoke to

Officers Foust and Fairchild, who briefed him on the efforts

they had taken thus far to reach Escobedo. Sgt. Taylor

attempted to speak to Escobedo through the apartment

door, but received no response. He was finally able to

reach Escobedo via cellphone at around 4:55 a.m., and

Escobedo told Sgt. Taylor that he was a drug addict and

high on cocaine. Escobedo reiterated that he wanted to die;

that he had a gun to his head; that he did not want the

police to enter his apartment; that he did not want to hurt

the police but would kill himself if the police entered his

4 No. 11-2426

apartment; and that he wanted to speak to his therapist

Dr. Cates. Sgt. Taylor told Escobedo that no one would try

to break into his apartment or try to hurt him, and that Sgt.

Taylor was there to help him.

B. The Crisis Response Team arrives and begins

negotiating with Escobedo

After this conversation, Sgt. Taylor and another officer

who had arrived on the scene, Sgt. Michael Vorhies, made

the decision to contact the Crisis Response Team (“CRT”),

a division of the Fort Wayne Police Department that

specializes in situations involving hostages and barricades,

including situations where suicidal individuals barricade

themselves. While waiting for the CRT, Sgt. Taylor directed

several other officers to try to evacuate the other apart-

ments on the seventh floor of Escobedo’s building, but no

one answered when the officers knocked. During this time,

Sgt. Taylor continued to converse on and off with

Escobedo.

Members of the CRT began arriving at 5:30 a.m., with

Officer Bernie Ebetino arriving first. Officer Ebetino

proceeded to the seventh floor and listened to Escobedo’s

conversation with Sgt. Taylor for a few minutes, and then

took over negotiations. Other CRT members continued to

arrive and assumed various roles: Detective Jonathan

Bowers acted as the liaison between the negotiators on the

seventh floor and the commanders outside the building;

Officer Sofia Rosales kept a timeline of events for the CRT;

Officer Victor Torres also served as a liaison but remained

outside the building at the command post; Detective

No. 11-2426 5

Lorna Russell helped to coach Officer Ebetino during the

negotiations; and Sgt. Hunter, the CRT commander, acted

as an information relay between the negotiators and the

commanders.

C. The Emergency Services Team arrives as negotia-

tions with Escobedo continue

Members of the Emergency Services Team (“EST”) also

began arriving on the scene. 1 Lt. Kevin Zelt, the EST

commander, joined Sgt. Hunter at the scene, and both were

under the direct command of Deputy Chief Martin Bender,

who was the incident scene commander and had

overall authority. Deputy Chief Douglas Lucker was on

the scene as well and provided assistance to Deputy

Chief Bender. Bender established a command center

in the parking lot next to the apartment complex. He

then ordered the officers present to form a perimeter

around the building, and notified the nearby hospital that

1

The Fort Wayne Police Department has two specific teams that

are relevant to this case: The Crisis Response Team and the

Emergency Services Team. These two teams work in tandem

with specific complementary tasks: The CRT handles the

negotiation side of situations involving hostages, barricades, and

suicidal barricades; and the EST, similar to a typical SWAT unit,

handles the tactical side of these situations. The EST team is

trained to defuse such situations with tactical methods such as

the use of tear gas, flashbang grenades, and other stun devices,

and, when necessary, the use of force. Whenever the CRT is

activated, the EST is also deployed.

6 No. 11-2426

an armed man was threatening to commit suicide in

the building.

Sgt. Taylor, the officer who had first communicated with

Escobedo, briefed Deputy Chief Bender on the situation

and then left the scene, leaving his cellphone with Officer

Ebetino. Deputy Chief Bender in turn briefed Lt. Zelt

on the details of the situation, and Lt. Zelt deployed a

three-man squad of snipers/observers to conduct visual

surveillance of Escobedo. With the command center

located outside the building and the negotiators located on

the seventh floor of the building, it was necessary to

develop a communication relay system to keep the com-

manders informed of the negotiation proceedings. To

that end, a CRT officer on the seventh floor relayed infor-

mation via a direct-link phone system down to Sgt. Hunter,

who in turn passed that information on to the

other command staff. When the CRT began using the

direct-link phone, they stopped using Sgt. Taylor’s

phone to communicate with Escobedo and began using

another officer’s phone which was compatible with the

direct-link system.2

2

Officer Ebetino did not inform Escobedo of the switch after

contacting him on the new phone, and Officer Ebetino did

not provide Escobedo with the number of the new phone

(though presumably it would have appeared on Escobedo’s

cellphone when Officer Ebetino called with the new phone).

L a t e r , a ft e r t h e n e g o t ia t io n s w ith E sc o b e d o h a d

ceased, Escobedo attempted to call Sgt. Taylor’s phone

five times, but by that point the CRT had already evacuated

(continued...)

No. 11-2426 7

Officer Ebetino’s plan during the negotiation was

for Escobedo to put the gun down and leave his apartment

so he could be taken into custody for an emergency

mental health detention. Officer Ebetino employed

various techniques used by negotiators to effect this plan:

he tried to build rapport with Escobedo via active

listening, tried to calm Escobedo, tried to build trust

and empathy with him, and emphasized that the

police were there to help Escobedo. Escobedo informed

Officer Ebetino that he had received treatment by a psychi-

atrist, Dr. Cates, and Sgt. Hunter called Dr. Cates to

learn more about Escobedo. Dr. Cates told Sgt. Hunter

that Escobedo had a history of drug use and bipolar

disorder, had a strained relationship with his family,

and was difficult to deal with when high on drugs.

Dr. Cates said that he did not think he could be of

any help during the negotiations because Escobedo was

difficult to deal with when using drugs, but he still

offered to come to the scene. Sgt. Hunter relayed

this information to Deputy Chief Bender, and Hunter

decided not to ask Dr. Cates to come to the scene.

During the negotiations, Escobedo repeatedly discussed

wanting to kill himself, but also repeatedly stated that he

did not want to die. Escobedo discussed barricading his

door, and Officer Ebetino heard furniture being

moved inside. Later, Escobedo said that he was removing

(...continued)

their position on the seventh floor and left their equipment,

including Sgt. Taylor’s phone, behind.

8 No. 11-2426

the barricade. Escobedo also asked Officer Ebetino

about getting medication and speaking with a counselor,

and emphasized that he wanted to speak with Dr.

Cates. He also talked about seeing his sister Renee,

and Officer Ebetino responded by suggesting that

Escobedo identify a hospital where he could meet his

sister.

D. As negotiations with Escobedo fall apart, the EST

prepares a tactical solution

As the negotiations were ongoing, Lt. Zelt began

to develop a tactical plan to remove Escobedo from

his apartment. The plan included evacuating the building

and then using tear gas and a tactical team. According

to Lt. Zelt’s testimony at trial, Zelt was concerned with

the fact that Escobedo’s weapon had a range of over

one mile and that Escobedo was on the seventh floor of

a building, which meant Escobedo “controlled the

high ground.” In developing his plan, Lt. Zelt reviewed

Escobedo’s criminal history, noting that he had several

prior substance abuse arrests and convictions, including

a recent felony arrest for which Escobedo was facing

prison time.

By 8:00 a.m., Deputy Chief Bender learned that the

negotiations with Escobedo were not progressing. Bender

ordered Lt. Zelt to prepare his tactical team for firing

tear gas into Escobedo’s apartment to force him out.

At trial, Bender testified that his decision to employ a

tactical plan resulted from his consideration of the

safety of his officers, of the public, and of Escobedo

No. 11-2426 9

himself. Officer Ebetino, however, continued to negotiate

with Escobedo while Lt. Zelt and his team prepared

the tactical plan. According to Officer Ebetino’s testimony

at trial, Ebetino believed that he was making no progress

with Escobedo and that Escobedo became increasingly

irrational over the three hours that Ebetino

had spent trying to coax Escobedo to put his gun down and

exit his apartment voluntarily.

E. The EST fires tear gas into Escobedo’s apartment

At 8:28 a.m., Escobedo threatened to come out of the

apartment with his gun in his hand, and indicated

to Officer Ebetino that he had a knife as well.

Two minutes later, Escobedo stated he would come out

of his apartment in three minutes. Deputy Chief Bender,

who was ready to order the use of tear gas, held off

to see if Escobedo would come out of the apartment as

he had promised, but Escobedo did not exit his apartment.

Deputy Chief Bender then ordered the tear gas to be

fired into Escobedo’s apartment. All of the commanders

who participated in the decision to deploy a tactical

response (Deputy Chief Bender, Deputy Chief Lucker, Lt.

Zelt, and Sgt. Hunter) testified that the primary reason

for using tear gas to remove Escobedo from the apartment

stemmed from their belief that further negotiations would

be fruitless.

Officer Ebetino terminated negotiations with Escobedo

and the CRT had no further contact with him. The negotia-

tors evacuated the seventh floor of the building as Lt.

Zelt sent three officers to the street below Escobedo’s

10 No. 11-2426

window to position them to fire tear gas up through

the windows of the apartment. While these officers

were positioning themselves, a “take down team”

led by Sgt. Selvia placed themselves in the hallway of

the seventh floor outside of Escobedo’s apartment.

They put on gas masks in preparation for the tear gas

deployment, and were ready to respond if Escobedo exited

the apartment after the tear gas was deployed.

Escobedo did not exit the apartment. Sgt. Selvia and

other members of the team could hear Escobedo

coughing, and repeatedly shouted for Escobedo to

put down his gun and come out. Escobedo did not re-

spond, and after ten minutes, Lt. Zelt ordered a second

volley of tear gas to be fired into the apartment.

Once again, Sgt. Selvia and the other members of the

take down team shouted for Escobedo to come out of

the apartment, but they heard nothing in response.

F. The team breaches Escobedo’s apartment door

After waiting an additional ten minutes, Lt. Zelt ordered

the officers to enter the apartment. Zelt ordered Sgt. Selvia

to employ a “breach & delay” tactic whereby Selvia

and the other members of the team rammed the door

open and tossed an aerosol canister containing tear gas

into the first room of Escobedo’s apartment. By this point,

Sgt. Selvia’s team was comprised of Sgt. Shane

Lee and Officers Derrick Westfield, Scott Straub, Jason

Brown, and Brian Martin. The team waited for over

a minute for a response, but when there was none, Lt.

Zelt ordered Sgt. Selvia to use a second tear gas canister.

No. 11-2426 11

Lt. Zelt then ordered the officers to enter the apartment.

The officers tossed a “flashbang” grenade, a

distraction device that emits a loud noise and a

bright flash, into the room before entering it. The effects

of a flashbang, designed to temporarily disable and

blind a suspect, last between two and eight seconds,

providing officers sufficient time to gain control

over a room. The flashbang ignited some of the propellant

from the tear gas canisters and caused a small fire. The

officers entered the room, put out the fire, and quickly

searched the living room and adjoining kitchen, determin-

ing that Escobedo was not in the common area. They

saw that the bedroom door was closed, and decided

that Escobedo must be in the bedroom.

G. The team enters the bedroom and Officers Martin

and Brown shoot Escobedo

When the team tried to open the bedroom door, they

found it was barricaded, and they had to use the ram

to force the door open, breaking the door in half in

the process. Officer Straub then threw a second flashbang

over the barricade and into the bedroom. The flashbang

detonated in the closet, where Escobedo was

sitting, approximately one to two feet away from

Escobedo’s head.

After the flashbang detonated, the officers attempted

to enter the room, but were slowed by the barricade.

Eventually they navigated the obstacle and spread

out through the room, shouting for Escobedo to drop

his gun and surrender. Officer Martin spotted Escobedo

12 No. 11-2426

sitting in his closet with a gun to his head. Escobedo yelled

out that he had a gun, and Martin in turn yelled to

the team, “He’s got a gun!” At this point, Officer Martin

was approximately four to six feet in front of Escobedo,

who was sitting in the closet with his legs extended

in front of him. Officer Brown stepped in next to

Martin on Martin’s left. Officer Martin was armed with

his service revolver, and Officer Brown was armed with

a Sage, a weapon that fired rubber bullets.

At trial, Officer Martin testified that he repeatedly

shouted at Escobedo to drop the gun, but instead

of doing so, Escobedo lowered his gun from his head

and pointed it at Martin. Martin then fired his

service revolver at Escobedo several times, and

Brown opened fired with his Sage as well. After

being struck by bullets, Escobedo slumped forward, and

Martin fired a second volley at Escobedo because

he believed Escobedo was reaching for the gun,

which Escobedo had dropped after the first bullets struck

him. Martin ultimately shot Escobedo nine to eleven

times. Officer Brown also fired his Sage, hitting Escobedo

with six rubber bullets. After the second volley,

Officer Martin approached the closet to get Escobedo’s

gun. As he was reaching down to retrieve the gun,

Martin bumped his head on the closet’s doorjamb, which

broke the seal on his gas mask. He was able to grab the

gun and then left the apartment, overcome by the tear

gas. Paramedics were summoned to the room, and they

pronounced Escobedo dead at 8:59 a.m.

No. 11-2426 13

H. The Estate files suit, the defendants file for sum-

mary judgment, and partial summary judgment is

granted and appealed

After Escobedo’s death, his Estate, via its representative

Raquel Hanic, filed a complaint on December 20, 2005,

against the City of Fort Wayne, Officers Martin, Brown,

Westfield, Straub, and Ebetino; Sgts. Selvia, Hunter,

and Shane Lee; Lt. Zelt; and Deputy Chiefs Bender and

Lucker, alleging, inter alia, that the defendants

used excessive force against Escobedo. In January 2007,

the Estate filed a motion to dismiss Lee and Westfield

from the case, which was granted. Shortly thereafter, the

remaining defendants moved for summary judgment,

raising a defense of qualified immunity. In May 2008,

the district court granted in part and denied in part

the defendants’ motion for summary judgment. Specifi-

cally, the district court granted summary judgment:

(1) for Officer Ebetino on all claims against him,

thus dismissing him from the case; (2) for Officers

Martin and Brown on the Estate’s excessive force claim

for shooting Escobedo; (3) for the defendants on the Es-

tate’s failure to train claim; (4) for the defendants on the

Estate’s warrantless entry claim; (5) for the defendants

on the Estate’s substantive due process claim; and

(6) for the defendants on the Estate’s wrongful death claim.

The district court denied the defendants’ summary

judgment motion with respect to: (1) the Estate’s excessive

force claim against the officers for firing tear gas

into Escobedo’s apartment; (2) the Estate’s supervisory

liability claim against Deputy Chiefs Bender and

14 No. 11-2426

Lucker, Lt. Zelt, and Sgt. Hunter, for ordering tear gas to

be fired into Escobedo’s apartment; (3) the Estate’s exces-

sive force claim against the entry team (Sgt. Selvia

and Officers Straub, Martin and Brown) for using tear

gas canisters and flashbangs during the raid on Escobedo’s

apartment and bedroom; and (4) the supervisory liability

claim against Deputy Chiefs Bender and Lucker,

Lt. Zelt, and Lt. Hunter for the entry team’s raid on

Escobedo’s apartment.

Shortly after the district court’s ruling, the defendants

filed a notice of appeal from the denial of qualified immu-

nity for their decision to use tear gas to extricate Escobedo

from his apartment and to use tear gas canisters

and flashbang grenades to enter his apartment. The

Estate also filed a motion for reconsideration of the sum-

mary judgm ent order in A ugust 2008, which

the district court denied. The Estate then filed a notice

for certification of interlocutory appeal, which

the district court granted, and the Estate petitioned this

court for an interlocutory appeal, w hich w e

denied in October 2008. After denial, the Estate filed

a petition for rehearing and for rehearing en banc,

which we also denied.

Though we denied the Estate’s petition for an interlocu-

tory appeal, we addressed the defendants’ appeal from

the district court’s denial of their qualified immunity

defense. The only issue before this court on that

appeal was whether the district court erred in finding

that the officers were not entitled to qualified immunity

for their decision to use tear gas canisters to extricate

No. 11-2426 15

Escobedo from his apartment and to use tear gas

and flashbang grenades to enter his apartment. In April

2010, we issued our opinion affirming the district court’s

denial of qualified immunity to Deputy Chiefs Bender

and Lucker, Lt. Zelt, Sgts. Hunter and Selvia, and Officers

Martin, Brown, and Straub. The defendants filed a petition

for rehearing and rehearing en banc, which we denied

in May 2010. The defendants then filed a petition for a

writ of certiorari to the Supreme Court of the United States,

which the Court denied in October 2010.

I. The jury trial and judgment as a matter of law

The case proceeded to an eight-day jury trial in the

district court on the remaining claims—namely, the

excessive force claims against Deputy Chiefs Bender

and Lucker, Lt. Zelt, Sgts. Hunter and Selvia, and Officers

Martin, Brown, and Straub for the entry into Escobedo’s

apartment and the use of tear gas canisters and

flashbang grenades during entry. The trial began on

February 8, 2011, and at the close of the Estate’s case

in chief, all of the defendants moved for judgment as a

matter of law on qualified immunity grounds. The

district court granted judgment as a matter of law in

favor of Sgt. Selvia and Officers Straub, Martin, and Brown,

but took the motion by the remaining defendant command-

ers 3 under advisement. The trial proceeded against defend-

3

We frequently refer to Deputy Chiefs Bender and Lucker, Lt.

Zelt, and Sgt. Hunter collectively as the “defendant command-

(continued...)

16 No. 11-2426

ant commanders, and at the close of all evidence,

the defendants renewed their motion for judgment as

a matter of law, which the district court again took

under advisement. On February 17, 2011, the jury

returned a verdict in favor of the defendant

commanders, exonerating them on all claims. In

May 2011, the district court granted judgment as a

matter of law in favor of the defendant commanders

on qualified immunity grounds.4 Final judgment

was entered in May 2011, and this appeal followed.

(...continued)

ers” because each of them held a position of command during

the Escobedo standoff. Deputy Chief Bender had overall

command authority, Deputy Chief Lucker advised him, Lt. Zelt

was in charge of the EST and put together the tactical plan to

enter Escobedo’s apartment, and Sgt. Hunter was in charge of

the CRT, which handled negotiations with Escobedo.

4

This case presents the rare instance where judgment as a

matter of law on qualified immunity grounds is granted after

a jury verdict. The Supreme Court has “ ‘stressed the impor-

tance of resolving immunity questions at the earliest possible

stage in litigation.’ ” Saucier v. Katz, 533 U.S. 194, 200-01 (2001)

(internal citations omitted). Here, prior to trial the record was

not sufficiently developed to grant qualified immunity to

the defendants. As facts came to light at the trial, it became

appropriate to grant qualified immunity to Officers Straub,

Martin and Brown at the close of the Estate’s case, and later

to grant qualified immunity to the defendant commanders

after the jury verdict in their favor.

No. 11-2426 17

II. DISCUSSION

The Estate urges us to reverse the district court on the

basis of five separate arguments. First, the Estate

argues that the jury verdict in favor of the defendants

should be reversed because the district court

admitted evidence unknown to the officers at the time

they used force against Escobedo. Second, the

Estate contends that the district court erred when it held

as a matter of law that the defendant commanders’

order to use force did not proximately cause Escobedo’s

death, thus preventing the jury from considering

the Estate’s wrongful death claim. Third, the Estate

urges us to reverse the district court’s grant of judgment

as a matter of law to the defendant commanders on

qualified immunity grounds because the district court

improperly weighed evidence and concluded that

Escobedo posed a threat to the public. Fourth, the

Estate seeks reversal of the district court’s grant of judg-

ment as a matter of law to Officer Straub on qualified

immunity grounds because the district court improperly

weighed the evidence and determined that Officer

Straub did not recklessly throw a flashbang grenade

near Escobedo. Finally, the Estate argues that

we should reverse the district court’s grant of summary

judgment to Officers Martin and Brown because the

district court improperly resolved conflicting credibility

issues in the officers’ favor. We address each argument

in turn.

18 No. 11-2426

A. The district court did not improperly admit evi-

dence unknown to the officers at the time they used

force against Escobedo

A trial court’s evidentiary rulings are reviewed for

an abuse of discretion. Hollins v. City of Milwaukee, 574

F.3d 822, 828 (7th Cir. 2009). As we have observed,

the losing party at trial “carries a heavy burden in chal-

lenging a trial court’s evidentiary rulings on

appeal because a reviewing court grants substantial

deference to the evidentiary rulings of the trial

court.” Palmquist v. Selvik, 111 F.3d 1332, 1339 (7th

Cir. 1997) (quotations omitted). “Under the applicable

standard of review, . . . reversal is warranted ‘only when

the trial judge’s decision is based on an erroneous conclu-

sion of law or where the record contains no evidence

on which he rationally could have based that

decision, or where the supposed facts found are clearly

erroneous. ’” Id. (quoting Wheeler v. Sims, 951 F.2d 796, 802

(7th Cir. 1992)). And even if we find that the district court

erred on an evidentiary ruling, we will not disturb

the judgment of the district court unless the erroneous

ruling had a “substantial influence over the jury.”

United States v. Fairman, 707 F.2d 936, 941 (7th Cir. 1983)

(citations omitted).

The Estate challenges the jury verdict, arguing that the

district court erred in admitting evidence unknown to

the officers at the time of the shooting. Specifically, the

Estate argues that the district court should not have

allowed the defendants to introduce the following evi-

dence: (1) Escobedo’s upcoming court date and potential

No. 11-2426 19

five-year prison sentence for his recent substance

abuse violations; and (2) a psychological profile

of Escobedo done in 1999 by Dr. Cates. The defendants

counter that the Estate opened the door to such evidence

when Escobedo’s sister Regina Lawson (the Estate’s

first witness) testified regarding Escobedo’s state of mind

prior to the shooting. The defendants also argue

that Cates’s psychological assessment of Escobedo was

relevant to Escobedo’s mental state at the time of the

shooting.

In challenging the district court’s evidentiary ruling, the

Estate relies on our holding Sherrod v. Berry, 856 F.2d

802 (7th Cir. 1998), arguing that Sherrod precludes the

admission of evidence unknown to an officer at the

time force is used and is therefore presumptively prejudi-

cial. The Estate reads Sherrod too broadly. There, we

clarified that “[k]nowledge of facts and circumstances

gained after the fact . . . has no place in the trial court’s

or jury’s proper post-hoc analysis of the reasonableness of

the actor’s judgment. Were the rule otherwise . . . the

jury would possess more information than the officer

possessed when he made the crucial decision.” Id. at 805.

We cautioned, however, against an overly broad reading

of that holding, noting that the decision “should not

be interpreted as establishing a black-letter rule precluding

the admission of evidence which would establish

[for example] whether the individual alleging a § 1983

violation was unarmed at the time of the incident.” Id.

at 806. And we emphasized that evidence unknown

to officers at the time they used force is admissible to

20 No. 11-2426

attack witness credibility and to impeach witnesses

by showing contradictions or discrepancies in testimony.

Id.

Furthermore, evidence unknown to officers at the time

force was used is also admissible to add credibility to an

officer’s claim that a suspect acted in the manner described

by the officer. We recently held in Common v. City

of Chicago, 661 F.3d 940 (7th Cir. 2011), that “[a]s the

Sherrod court noted, . . . where the facts are controverted

in a reasonable force case, impeachment by contradiction

is allowed.” Id. at 946. In Common, officers observed

robbery suspects exiting a store, and the officers

ordered the men to stop and show their hands. Id. at 942.

One suspect, Michael Smith, failed to comply, and

grabbed for an officer’s wrist as the officer was drawing

his revolver. Id. The officer shot Smith in the chest,

and after Smith died, his estate brought a wrongful

death claim against the officer. An autopsy had revealed

that Smith had several bags of cocaine in his chest cavity

and trachea, and after a sidebar discussion, the

district court allowed that evidence to be admitted at trial,

even though the officer did not know that

information when he used force against Smith. Id.

The jury found in favor of the officers, and Smith’s estate

appealed. Relying on Sherrod, Smith’s estate argued

that the drug evidence was inadmissible because the officer

did not know about it when he shot Smith. We upheld

its admission, however, reasoning that

[t]he packets of drugs in Smith’s mouth made it more

likely that Smith acted in the way that Officer Nelson

No. 11-2426 21

contended he acted as opposed to the way that other

witnesses contended he did. . . . The evidence was used

to rebut the plaintiff’s argument that Smith exited the

store and immediately complied with the officer’s

direction to put his hands in the air. It was also used to

demonstrate that Smith had a motive to turn away

from the officer to conceal the drugs and then attempt

to gain control of Officer Nelson’s weapon.

Id. at 947.

This reasoning is analogous to the facts here. When

the Estate called Escobedo’s sister Regina Lawson to

the stand, she testified that Escobedo was in good spirits

and excited about what was happening in his life prior

to the shooting. The morning he was shot, however,

Escobedo called his sister before dialing 911 to tell her

that he did something stupid and was going away for

a long time. The defense sought to cross-examine Lawson

about Escobedo’s state of mind, that he had

pending criminal charges for habitual substance abuse,

that he was facing a plea hearing two days after he

was shot, and that his proposed plea agreement included

a five-year prison sentence. The Estate objected to the

line of questioning, and at sidebar conference, the defense

argued that the Estate opened the door to the subject of

the pending criminal charges when it asked Lawson

about Escobedo’s state of mind prior to the shooting.

The district court correctly ruled that because Lawson

already testified about her brother’s demeanor and state

of mind, “the defense does have an opportunity to

now examine it on cross to determine whether or not

22 No. 11-2426

this witness was aware that Mr. Escobedo had these other

events and situations in his life at this same approximate

time. . . . They have a right to cross on that, because one

of the contentions is Mr. Escobedo’s state of mind as

it relates to the damages claim by [the Estate].”

“When a party opens the door to evidence that would

be otherwise inadmissible, that party cannot complain

on appeal about the admission of that evidence.” Griffin

v. Foley, 542 F.3d 209, 219 (7th Cir. 2008) (quotations

omitted). And when a party puts evidence at issue,

that party must “accept the consequence[s]” of opening

the door to that evidence. S.E.C. v. Koenig, 557 F.3d 736,

740-41 (7th Cir. 2009). The Estate opened the door

to evidence concerning Escobedo’s state of mind when

it questioned Lawson about it, and Sherrod does not bar

the admission of Escobedo’s pending criminal charges even

though Officers Martin and Brown did not know about

Escobedo’s potential prison sentence.5 Just as we ruled

in Common, the Estate’s contention that Escobedo would

have put down his gun and voluntarily exited his apart-

ment if he had only been given more time is contradicted

by the evidence of his upcoming prison sentence.

Indeed, Escobedo’s fear of prison adds credibility to the

5

One of the defendants, Lt. Zelt, the EST commander who

ordered Martin and the other team members to enter Escobedo’s

apartment, testified at trial that he knew of Escobedo’s criminal

record, upcoming court date, and possible prison sentence. Lt.

Zelt stated that he had reviewed Escobedo’s criminal record and

saw the information concerning his recent felony arrest and past

history of substance abuse.

No. 11-2426 23

testimony of Officers Martin and Brown, who testified

that Escobedo did not put down his gun despite being

repeatedly ordered to, and instead pointed it at Martin

and Brown. Furthermore, the evidence was admissible

to show Escobedo’s state of mind while he was in

his apartment and helps to show why the negotiations

with Escobedo did not seem to be proceeding. And

the defendants used this evidence to impeach Lawson’s

testimony that her brother was in good spirits prior to

the shooting. Thus, the district court did not err when

it allowed the defendants to introduce this evidence.

Likewise, the district court did not err when it

allowed the defendants to introduce Dr. Cates’s 1999

psychological assessment of Escobedo. Similar to

its arguments concerning Escobedo’s pending criminal

sentencing, the Estate argues that Dr. Cates’s psychological

assessment was not available to the officers during

the confrontation with Escobedo, nor did Dr. Cates

provide Sgt. Hunter with any of the information

contained in the assessment when Sgt. Hunter spoke

with Dr. Cates during the negotiations. The assessment,

done in 1999 when Dr. Cates first began treating Escobedo,

revealed that Escobedo was bipolar, was subject to unpre-

d ictab le m ood sw ings, and had consid erab le

substance abuse issues. Over the Estate’s objection,

the district court permitted Dr. Cates to testify about the

psychological assessment because it was “relevant with

respect to the mental state that Mr. Escobedo presented

at the time of this incident, to the extent that it gives

a history and background, albeit, going back to 1999, it is

still relevant to what Mr. Escobedo brought into this

24 No. 11-2426

police incident in 2005.” The court also noted that

the assessment provided “additional background context

and understanding for the facts to which this witness

[Cates] has been called to the stand now regarding

his contact with the police, and the statements that were

made to the police upon which the police in part acted.”

The Estate relies on our holdings in Wallace v. Mulholland,

957 F.2d 333 (7th Cir. 1992), and Rascon v. Hardiman,

803 F.2d 269 (7th Cir. 1986), to argue that evidence regard-

ing the mental health state of an individual that is un-

known to officers is inadmissible in an excessive force

case. However, neither case is applicable to the facts

here because each case involved attempts to introduce

evidence of mental illness to show that force might

be needed to deal with the individual in question.

Unlike in Wallace and Rascon, here the defendants intro-

duced the evidence about the psychological assessment

not to show that Escobedo might be aggressive when

the officers entered his room, but rather to explain

Dr. Cates’s previous testimony regarding his statements

via phone to Sgt. Hunter during the standoff—to wit, that

Escobedo was difficult to deal with when high on cocaine,

and that Dr. Cates would not have been of any

assistance during the negotiations. For that reason, the

district court did not err when it admitted Dr.

Cates’s testimony about the 1999 psychological assessment

concerning Escobedo’s mental health.

No. 11-2426 25

B. The district court committed harmless error when it

prohibited the Estate from introducing evidence at

trial of Escobedo’s death for purposes of calculating

damages

After the district court’s summary judgment order,

there remained § 1983 claims against the defendant

commanders for excessive force for ordering the use of

tear gas and for ordering the EST to enter Escobedo’s

apartment using flashbangs and additional tear gas.

At trial, the Estate sought to introduce evidence that

the defendant commanders’ decision proximately caused

Escobedo’s death. The district court prohibited it

from doing so, and on appeal, the Estate argues that

the district court’s refusal to allow it to pursue its theory

prejudiced the Estate’s case and resulted in an unfair

trial. Essentially, the theory the Estate wished to pursue

at trial runs as follows: The defendant commanders

decided to end negotiations and deployed tear gas and

the EST against Escobedo. As a result, they set off a

chain of events that substantially increased the risk

that Escobedo would be harmed or killed by the EST,

and thus proximately caused Escobedo’s death.

The Estate’s argument is incorrect. Under § 1983, the

defendant commanders could have been held liable for

setting off a chain of events that led to a violation

of Escobedo’s constitutional right to be free from

excessive force, not for his death.6 See Jones v. City of Chi.,

6

The Estate continually referred to its theory as its “wrongful

death” claim against the defendant commanders, but then stated

(continued...)

26 No. 11-2426

856 F.2d 985, 992-93 (7th Cir. 1988) (discussing the

liability of supervisors in the context of violations of

constitutional rights); see also Robertson v. Wegmann,

436 U.S. 584, 589-90 (1978) (“As we noted . . . one specific

area not covered by federal law is that relating to

the survival of civil rights actions under § 1983 upon

the death of either the plaintiff or defendant.”) (citations

and quotations omitted); McAllister v. Price, 615 F.3d

877, 882 (7th Cir. 2010) (under the Fourth Amendment,

the injury or death of an individual does not affect the

substance of a § 1983 claim for excessive force, but

rather is relevant as evidence of the reasonableness of

the force). Thus, the district court was correct in prohibit-

ing the Estate from arguing that the defendant command-

ers’ decision proximately caused Escobedo’s death, and

it properly instructed the jury to consider whether the

defendant commanders’ actions led to a violation

of Escobedo’s constitutional rights, rather than whether

those actions led to Escobedo’s death.

(...continued)

in its Reply Brief that “Plaintiff has used ‘wrongful death’ as

short-hand to refer to her argument that liability for Escobedo’s

death should be imposed on the Defendant-Commanders for

the use of tear gas and flash-bangs. This was not intended as

an assertion that this was a separate substantive claim.” [App.

Rep. Br. at 16 n.2.] The Estate also acknowledged that “[t]here

is no such thing a s a claim under the Fourth Amendment for

‘wrongful death.’” [App. Rep. Br. at 15.] Unfortunately, this

belated acknowledgment caused unnecessary confusion before,

during, and after the trial.

No. 11-2426 27

The district court committed harmless error, however,

when it prohibited the Estate from introducing evidence

of Escobedo’s death for purposes of calculating the dam-

ages that resulted from the violation of Escobedo’s consti-

tutional rights (if the jury were to find that Escobedo’s

rights were in fact violated). We have held that an

“estate bringing a decedent’s § 1983 claims may

seek damages allowable under a state wrongful

death statute.” Ray v. Maher, 662 F.3d 770, 774 (7th Cir.

2011). Indiana permits recovery for damages caused by

an individual’s wrongful acts or omissions that led to

the decedent’s death, including “[r]easonable medical

expenses, hospital, funeral, and burial expenses . . . .” Ind.

Code. § 34-23-1-2(c). Thus, if the defendants’ acts were

found to be excessive, the Estate would have been allowed

to present evidence of Escobedo’s death to demonstrate

the full scope of the injuries he sustained and to advance

its theory that the defendant commanders proximately

caused those injuries. See Guzman v. City of Chi., 689

F.3d 740, 745-46 (7th Cir. 2012) (“[L]iability must be

resolved before the question of damages is reached.”);

see also Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044

(7th Cir. 2002) (“[T]he ordinary rules of tort causation

apply to constitutional tort suits.”); Henderson v.

Sheahan, 196 F.3d 839, 848 (7th Cir. 1999) (“[A] plaintiff

must demonstrate both that he has suffered an ‘actual’

present injury and that there is a causal connection be-

tween that injury and the deprivation of a constitutionally

protected right caused by a defendant.”).

Here, however, the error was harmless because the jury

exonerated the defendant commanders of any liability.

28 No. 11-2426

Thus, the jury did not need to determine whether the

defendant com m anders’ decision to use force

against Escobedo proximately caused Escobedo’s damages.

See Guzman, 689 F.3d at 745. Because we hold that

the district court’s error was harmless, we decline to vacate

the jury’s verdict and order a new trial.

C. The district court did not err when it granted

judgment as a matter of law on qualified immunity

grounds to the defendant commanders

We next consider the Estate’s challenges to the district

court’s grant of judgment as a matter of law to the defen-

dant commanders on the basis of qualified immunity.

We review de novo a district court’s grant of judgment

as a matter of law. Zimmerman v. Chi. Bd. of Trade,

360 F.3d 612, 623 (7th Cir. 2004). Judgment as a matter

of law is appropriate when there is “no legally sufficient

evidentiary basis for a reasonable jury” to find for the non-

moving party. Id. We do not weigh the evidence or

the credibility of the witnesses, but “there must be more

than a mere scintilla of evidence” in support of the non-

moving party’s case to justify reversing the grant

of judgment as a matter of law. Id.

The district court’s grant of judgment as a matter of

law in favor of the defendant commanders on qualified

immunity grounds came after the jury found that none

of the defendant commanders violated Escobedo’s consti-

No. 11-2426 29

tutional right to be free from excessive force.7 The district

court granted qualified immunity to the defendant com-

manders based on their decision, after three hours

of unsuccessful negotiations by the CRT with Escobedo

to persuade him to put down his gun and exit his apart-

ment, to use a tactical response to remove him from

the apartment. The district court’s decision also granted

qualified immunity to the defendant commanders

with respect to their decisions to allow the entry team to

use tear gas and flashbang grenades when the team

entered Escobedo’s apartment. The district court ruled

that the Estate had failed to show that reasonable officers

would have acted differently under the circumstances.

We review the validity of a qualified immunity defense

de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). Because

there was a jury verdict in favor of the defendant com-

manders prior to the grant of judgment as a matter of

law, we construe the evidence in the light most favorable

to them. See Jarrett v. Town of Yarmouth, 331 F.3d 140,

147 (1st Cir. 2003), cert. denied, 540 U.S. 1017 (2003) (“When

a qualified immunity defense is pressed after a jury

verdict, the evidence must be construed in the light most

hospitable to the party that prevailed at trial . . . and

deference should be accorded to the jury’s discernible

resolution of disputed factual issues.”) (internal quotations

omitted).

Qualified immunity shields government officials from

liability under Section 1983 “for actions taken while

7

As we noted above, this is unusual, but the district court was

free to do so under Fed. R. Civ. P. 50(a)(2) and (b)(3).

30 No. 11-2426

performing discretionary functions, unless their conduct

violates clearly established statutory or constitutional

rights of which a reasonable person would have

known.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1022

(7th Cir. 2000). It protects “all but the plainly incompetent

or those who knowingly violate the law. . . . If officers

of reasonable competence could disagree on the issue

[of whether or not an action was constitutional], immunity

should be recognized.” Malley v. Briggs, 475 U.S. 335,

341 (1986). When performing discretionary functions,

governmental actors accused of using excessive force

are entitled to qualified immunity and are thus shielded

from liability, unless the plaintiff can show a violation

of a constitutional right and demonstrate that the right

in question was clearly established at the time of the

alleged violation. Saucier v. Katz, 533 U.S. 194, 201-02

(2001).

When analyzing a qualified immunity defense, courts

consider whether the facts alleged demonstrate a constitu-

tional violation, and whether the constitutional right was

clearly established. Pearson v. Callahan, 555 U.S. 223,

232 (2009). A constitutional right is clearly established

when “it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202; see also Escobedo I, 600 F.3d at

779 (“For a constitutional right to be clearly established, its

contours must be sufficiently clear that a reasonable

official would understand that what he is doing violates

that right.”) (quotations omitted).

Once the defense of qualified immunity is raised, “it

becomes the plaintiff’s burden to defeat it.” Wheeler v.

No. 11-2426 31

Lawson, 539 F.3d 629, 639 (7th Cir. 2008). Thus, the Estate

has the burden to show that Escobedo had clearly estab-

lished rights that the defendants violated. Boyd v.

Owen, 481 F.3d 520, 526 (7th Cir. 2007); see also Collier v.

Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (“Although

nominally an affirmative defense, the plaintiff has the

burden to negate the assertion of qualified immunity.”).

The district court granted judgment as a matter of law

on qualified immunity grounds to the defendant com-

manders on the second prong, finding that Escobedo

did not have a clearly established constitutional right to

be free from the deployment of the Emergency Services

Team, the use of tear gas, or the use of flashbang grenades

because there was a lack of clearly existing law

regarding their use and because no “patently obvious”

violations occurred. The district court had initially denied

qualified immunity to the defendant commanders at

the summary judgment stage (and we affirmed that

denial, see Escobedo I, 600 F.3d at 770). Specifically, regard-

ing the use of tear gas, this court in Escobedo I stated that

it was clearly established that the use of tear gas is unrea-

sonable “when the individual does not pose an actual

threat.” Id. at 783. At summary judgment, the issue

of whether Escobedo posed an actual threat was un-

clear—potential traffic problems and officer fatigue

appeared to be the defendant commanders’ only concerns.

Id.

However, facts emerged at trial that caused the district

court to conclude that “the police had a much greater

concern that Escobedo was an imminent threat to others,”

32 No. 11-2426

thus changing its conclusion on the qualified immunity

question. The district court based this finding on several

factors: Escobedo was on the seventh floor of a

building that was surrounded by other buildings, includ-

ing a hospital and a church with a daycare center;

Escobedo occupied an elevated position wielding a

handgun with a long effective range; and the commanders’

expressed desire that the tactical solution take place

after most of the morning rush hour had finished.

The Estate’s challenge centers on whether the defendant

commanders were entitled to qualified immunity

for ending negotiations and initiating a tactical response

that included the use of tear gas and flashbang grenades.

Its argument hinges on its contention that Escobedo

did not present an actual danger. The Estate attempts to

use the testimony of Deputy Chief Bender, Lt. Zelt, and

the other commanders to show that any danger

Escobedo posed was purely hypothetical (e.g., Deputy

Chief Bender testified that there was a possibility

that Escobedo had other firearms and that it was possible

that Escobedo could go into an “active shooting mode”

or “could possibly discharge a weapon,” etc.). But the

only proof the Estate offers in support of its argument is

that Escobedo repeatedly said that he did not want

to harm anyone and that he in fact did not harm anyone.

Negotiations had been ongoing for nearly four hours when

Deputy Chief Bender, after considering that Escobedo was

high on cocaine, was wielding a powerful handgun with a

long range, and had a clear view of the surrounding

buildings, gave the order for Lt. Zelt to prepare a tactical

response. The district court thus correctly concluded that

No. 11-2426 33

“the trial record shows that the police had a much

greater concern that Escobedo was an imminent threat to

others” than was apparent at the summary judgment

stage of the proceedings.

The Estate also attacks the decision to use tear

gas against Escobedo, but both the defendants’ expert

witness, Ronald McCarthy, and the Estate’s expert

witness, Larry Danaher, testified that once a decision to

employ a tactical solution is made, the next appropriate

step is to use tear gas. Danaher also testified that

the decision to move from negotiations to a tactical solu-

tion requires an exercise in judgment by the commanders

at the scene, and once that decision was made, Lt.

Zelt’s tactical plan and its execution by the team was

proper. The district court quoted Deputy Chief Bender’s

trial testimony at length, citing to the multiple public

safety factors he considered when deciding to use tear

gas. Because of those safety concerns, the district court

concluded that “Escobedo did not have a clearly estab-

lished right to be free from the deployment of tear

gas.” The evidence the district court relied on when it

granted summary judgment in favor of the defendant

commanders on qualified immunity grounds demonstrates

that a reasonable commander could believe that Escobedo

posed an actual threat, and that decision is precisely

what qualified immunity protects. Thus, the district court

did not err when it granted judgment as a matter of law

in favor of the defendant commanders after the jury

verdict in favor of the defendants.

The Estate also argues that the district court erred in

ruling that the defendant commanders had qualified

34 No. 11-2426

immunity regarding the amount of tear gas used. Its

challenge centers on the fact that as much as twelve

times the incapacitating level of tear gas was deployed

against Escobedo. At trial, however, Lt. Zelt and the

experts testified that “an incapacitating level of tear gas”

is a misleading unit. Zelt testified that tear gas is “incapac-

itating” when an individual can no longer remain inside

a structure. Danaher, the Estate’s own expert, testified that

tear gas is frequently used by police in barricaded suspect

situations and that an “incapacitating” amount of tear

gas means an amount sufficient to make the suspect feel

uncomfortable but not render him unconscious. McCarthy,

the defendants’ expert, agreed, noting that the calculation

of an incapacitating level was an old mathematical formula

and that it would not have any bearing on determining

whether the amount of tear gas used in a given situation

was reasonable under the circumstances. McCarthy also

testified that the study that had been done to determine

how much tear gas constituted an “incapacitating” amount

had been “thoroughly discredited.” And the fact

remains that, despite the large amount of tear gas de-

ployed against Escobedo, he did not exit his apartment

but instead sat down in his closet behind a barricaded

door. For these reasons, the evidence presented at trial

supports the district court’s conclusion that reasonable

commanders could have believed that the amount of

tear gas used here was appropriate under the circum-

stances. Therefore, the district court did not err when it

ruled that the defendant commanders were entitled to

qualified immunity.

The Estate also challenges the commanders’ decision to

use flashbang devices, again arguing that Escobedo was

No. 11-2426 35

not dangerous. The Estate looks to our opinion affirming

the district court’s summary judgment decision denying

qualified immunity to the defendant commanders, where

we held that the use of a flashbang was an unreasonable

use of force when

it was clearly established as of July 19, 2005, that

throwing a flash bang device blindly into an apartment

where there are accelerants, without a fire extin-

guisher, and where the individual attempting to be

seized is not an unusually dangerous person, is not the

subject of an arrest, and has not threatened to harm

anyone but himself [. . .].

Escobedo I, 600 F.3 at 786. The key language here is “not

an unusually dangerous person.” When we affirmed the

district court’s summary judgment ruling, the

facts concerning the degree of danger Escobedo presented

were not nearly as developed as they were after trial.

The district court concluded that the evidence at

trial showed that Escobedo did in fact pose an actual

threat, and granted qualified immunity to the commanders

on that basis. In addition to the evidence noted above,

the district court also cited to Lt. Zelt’s testimony regard-

ing his concerns about Escobedo’s hallucinations.

Several times during his conversation with the negotiators,

Escobedo stated that police were inside his apartment

or right outside his window. Lt. Zelt testified that it was

possible that Escobedo might shoot at the imaginary

officers and strike someone outside the apartment.

Escobedo also told negotiators that he had a knife

in addition to his firearm, thus making him potentially

36 No. 11-2426

more dangerous, and that he might come out of the

apartment with his gun. The Estate’s expert Danaher

conceded that if Escobedo did exit the apartment with

his gun, that would increase the likelihood that an inno-

cent bystander could be shot. And even if Escobedo

never intended to harm anyone but himself, the fact that

he barricaded himself into his apartment made him

dangerous to anyone attempting to enter the apartment to

remove him from it. Danaher testified that, because

Escobedo had barricaded himself, he created a “fatal

funnel”—the area of an entryway where a tactical team

might be shot at as they are coming through the door.

Danaher agreed that it was appropriate for officers to

use flashbangs to disorient a suspect wielding a gun

to give officers time to get through the door and avoid

being shot. He further agreed that because the door

was barricaded, it was appropriate for the team to use a

flashbang prior to entering the bedroom.

In light of this evidence, the district court observed that

the trial testimony “provided a clear picture of a potential

threat Escobedo posed even though he did not make any

explicit verbal threats against others. Even though

Escobedo did not issue any explicit verbal threats to

the public or the police, the court finds that Escobedo

was unusually dangerous and thus did not have a clearly

established constitutional right to be free from the use

of flashbangs.” For these reasons, the district court did not

err when it granted qualified immunity to the defendant

commanders regarding the use of flashbang grenades

against Escobedo.

No. 11-2426 37

D. The district court did not err when it granted

judgment as a matter of law on qualified immunity

grounds to Officer Straub

All of the defendants moved for judgment as a matter of

law at the close of the Estate’s case, and at this point

the district court granted judgment as a matter of law

in favor of all the team members who entered Escobedo’s

apartment (Officers Martin, Brown, and Straub, and

Sgt. Selvia). Of those defendants, the Estate challenges

only the district court’s grant of judgment as a matter

of law to Officer Straub on his use of the second flashbang

when the team entered Escobedo’s bedroom. The standard

of review articulated above remains the same: we review

de novo a district court’s grant of judgment as a matter

of law, and it is appropriate when there is “no legally

sufficient evidentiary basis for a reasonable jury” to

find for the non-moving party. Zimmerman, 360 F.3d at

623. However, because the district court granted judgment

as a matter of law in favor of Officer Straub at the close

of the Estate’s case (and thus prior to the jury verdict

in favor of the defendant commanders), we construe

the evidentiary record in the non-moving party’s favor

(here, the Estate’s). See id. The Estate argues that

the district court improperly weighed the evidence and

should have found that Straub’s use of the second

flashbang before breaching Escobedo’s bedroom consti-

tuted excessive force. We disagree.

The Estate’s argument turns on the fact that Straub threw

the flashbang into the bedroom without first determining

where Escobedo was located in the room. The Estate

38 No. 11-2426

relies on our opinion in the first appeal of this case, where

we suggested that

the use of a flash bang grenade is reasonable only

when there is a dangerous suspect and a dangerous

entry point for the police, when the police have

checked to see if innocent individuals are around

before deploying the device, when the police have

visually inspected the area where the device will be

used and where the police carry a fire extinguisher.

Escobedo I, 600 F.3d at 784-85 (citing United States v.

Morris, 349 F.3d 1012 n.1 (7th Cir. 2003)).

The Estate reads this to mean that a flashbang can

be used only after the police have had an opportunity

to visually inspect the area where it will be used.

We believe that the Estate’s categorical reading of

the language in Escobedo I is incorrect (and indeed,

we stressed that our ruling in Escobedo I was confined

to the facts of the case as presented at summary judgment

in the light most favorable to the Estate, see id. at 786).

The considerations enumerated in Escobedo I should

be construed as a non-exhaustive list of factors for a

district court to consider when determining whether

the use of a flashbang grenade in a given set of circum-

stances was appropriate, not a bright-line test in which

the absence of any one factor dooms an officer’s use of

a flashbang as unreasonable. There are many situations

where a visual inspection of a room prior to deploying

a flashbang is impossible or extremely dangerous, such

as when the entrance to a room is barricaded or defended

by an armed individual (as occurred here). Reading the

No. 11-2426 39

Escobedo I factors categorically would mean that police

would potentially have to expose themselves to gunfire

to visually inspect the area where a flashbang is to be

deployed prior to using it. This places officers in a precari-

ous position, and forces them to surrender the very tactical

advantages— nam ely, su rp rise an d te m p orarily

disabling the dangerous individual—they hope to gain by

deploying a flashbang.

The facts that emerged at trial indicate that the officers

believed that Escobedo was unusually dangerous, as

he was hallucinating, high on drugs, and wielding a

handgun; the room the team was trying to enter was

dark and barricaded; and the doorway itself created

a “fatal funnel” through which each officer would have

to pass while Escobedo could have shot them. For

those reasons, we hold that the facts in this case

indicate that the choice to deploy a flashbang without first

inspecting the barricaded room into which it was

thrown was reasonable, and that Escobedo did not have

a clearly established constitutional right to be free from

the use of a flashbang.

Indeed, the Estate’s own expert, Danaher, conceded that

once the team was given the command to enter the apart-

ment, they acted consistent with their training and per-

formed as expected. In reaching its decision to

grant qualified immunity to the team members, the district

court first found that Escobedo was dangerous

and presented a threat to the officers and the public. As

Lt. Zelt testified, Escobedo had been suffering from

hallucinations of imaginary officers in his apartment,

40 No. 11-2426

and those hallucinations made Escobedo dangerous

because he could have opened fire at any time.

And Danaher agreed that an officer would have to

throw the flashbang into the bedroom without first

determining where Escobedo was located because the

door was barricaded. It was unfortunate that the flashbang

landed near Escobedo, but Danaher conceded that

there was no way Straub could control where the

flashbang landed, and the district court agreed with

Danaher’s assessment. As we noted above, because

the district court found that Escobedo was unusually

dangerous, he “did not have a clearly established constitu-

tional right to be free from the use of flashbangs.”

Thus, the district court did not err when it granted judg-

ment as a matter of law on qualified immunity grounds to

Straub for his use of the second flashbang.

E. The district court did not err when it granted

summary judgment in favor of Officers Martin and

Brown on the Estate’s excessive force claim for

shooting Escobedo

As we noted above, since the Estate is also appealing

the district court’s grant of summary judgment in favor

of Officers Martin and Brown on the use of lethal force,

we must consider the facts available to the district court

at the summary judgment phase in the light most favorable

to the non-moving party (here, the Estate), and ignore

the facts that came to light only during the trial.

See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2007).

We review a district court’s grant of summary judgment

No. 11-2426 41

de novo. Jordan v. City of Gary, 396 F.3d 825, 831 (7th Cir.

2005). We have cautioned that

[t]he award of summary judgment to the defense in

deadly force cases may be made only with particular

care where the officer defendant is the only witness left

alive to testify. . . . [A] court must undertake a fairly

critical assessment of the forensic evidence, the offi-

cer’s original reports or statement and the opinions of

experts to decide whether the officer’s testimony could

reasonably be rejected at trial.

Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994). How-

ever, this does not relieve the Estate of its burden to

“submit evidentiary materials that set forth specific facts

showing that there is a genuine issue for trial.” Siegel v.

Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2007) (quotations

omitted).

We accept the version of the facts as distilled by

the district court in its summary judgment order,

Escobedo v. City of Fort Wayne, et al., No. 1:05-CV-424-TS,

2008 U.S. Dist. WL 1971405 (N.D. Ind. May 5, 2008).

The record reveals the following: As Westfield, Lee,

Straub, Selvia, Brown, and Martin entered the bedroom,

they observed that the door had been barricaded with

a large bed frame, and the room was dark with poor

visibility. During their entry, Escobedo continued to

yell that he had a gun and that it was pointed at his head.

Officer Martin entered the room last and moved to

the right. Martin said he believed that “I was going to get

shot or the two guys [Westfield and Lee] were going

to probably go down the minute we made entry into that

room.”

42 No. 11-2426

Using his flashlight, Officer Martin saw Escobedo

sitting on the ground in the closet with his legs extended

in front of him. Escobedo was pointing his gun

upside down at his head with his left hand, and the

hammer on Escobedo’s gun was cocked. Martin an-

nounced several times that Escobedo was in the closet and

that he was pointing a gun at his own head. Martin

then ordered Escobedo to drop his gun several times, and

Escobedo began to lower his gun “towards me, pointing

it at me.” At that point, Martin said he fired because he

was in fear of his own life as he was afraid he would be

shot or another officer would be shot.

Before Officer Martin opened fire, as Martin pointed his

gun and flashlight at Escobedo inside the closet, Officer

Brown moved forward, positioning himself to Martin’s

left. When Sgt. Selvia heard Martin’s commands

to Escobedo, he yelled for Brown to fire his Sage at

Escobedo to disarm him. But “[a]bout the time that came

out of my mouth, Officer Martin had already started

to shoot.” Selvia described Martin shooting and his

own command to Brown as “simultaneous.”

After the first volley, Escobedo dropped the gun

between his legs. Both officers observed Escobedo reach

and/or lean forward in an apparent attempt to pick up the

gun. Martin said that Escobedo “leaned forward with

both hands towards the gun and I felt he was going to

pick the gun up and try to shoot.” Straub thought that he

heard Martin say something such as “don’t,” or “stop,” in

between the volley of shots. Martin and Brown then

fired a second volley. Martin fired a total of nine or ten

No. 11-2426 43

shots during the entire incident, and Brown fired a total

of six times. See generally Escobedo, 2008 U.S. Dist.

WL 1971405, at *15-17.

The Estate contends that material questions of fact

exist about whether Escobedo pointed his gun at Officer

Martin prior to Martin shooting him. The Estate points

out that the Fort Wayne Police Department’s test of

Escobedo’s gun found no latent fingerprints on it. How-

ever, this evidence was known to the Estate prior

to summary judgment but the Estate did not submit it

in its response to the defendants’ motion for summary

judgment. As the district court correctly held in its order

denying the Estate’s motion for reconsideration, “the

Plaintiff cannot use and the Court cannot consider

this evidence . . . because the Plaintiff was able to use it

during summary judgment (but chose not to) and it is

not ‘newly discovered evidence.’ ” Thus, it cannot be

considered when reviewing the district court’s grant

of summary judgment and its denial of reconsideration.

See Heft v. Moore, 351 F.3d 278, 281 n.1 (7th Cir. 2003);

see also Fed. R. App. P. 10(a)(2).

The Estate also argues that there is “substantial circum-

stantial evidence” that Escobedo did not aim the gun

at Officer Martin, highlighting the fact that Escobedo

never threatened anyone but himself and the fact that

Escobedo repeatedly said that he did not want to

hurt anyone. The Estate also points to the deposition

testimony of the forensic pathologist who performed

Escobedo’s autopsy, Dr. Carpenter, to cast doubt

on whether Escobedo pointed his gun at the officers. Dr.

44 No. 11-2426

Carpenter testified that he could not determine

whether Escobedo extended his arm toward Officer Martin

or whether his arm was in that position before Martin

and Officer Brown began firing. Additionally, the Estate

challenges the credibility of the accounts Officers Martin

and Brown gave of the shooting. In the post-shooting

interview with the Fort Wayne Police Department’s

Internal Affairs department, Officer Martin said that

when Escobedo lowered the gun from his head, he held

it six to eight inches from his chest. Officer Brown, how-

ever, stated that Escobedo’s arm was almost fully ex-

tended, approximately one to two feet from his chest.

None of these arguments is availing. The fact

that Escobedo did not threaten anyone during the negotia-

tion process does not thereby mean that he did not

point the gun at Martin when the team entered his bed-

room. It does not contradict Martin’s or Brown’s

accounts of the shooting, and it does not even call it into

doubt. Likewise, Dr. Carpenter’s deposition testimony

does not contradict the accounts of Martin and Brown.

It merely states that the autopsy was inconclusive on the

position of Escobedo’s arm. Finally, the discrepancy in

Officer Martin’s and Officer Brown’s accounts of the

shooting regarding how far Escobedo extended his

arm from his chest is so minor that it hardly merits consid-

eration. In a dark room filled with tear gas, it would

be difficult to ascertain the precise distance at which

Escobedo was extending his arm. In short, none of

the evidence highlighted by the Estate creates a genuine

issue of material fact. Even the most generous reading

of these facts in favor of the Estate does not merit a

No. 11-2426 45

rejection of the officers’ testimony regarding Escobedo’s

actions during the shooting. The district court

correctly observed that the Estate’s evidence did nothing

more than “highlight minor differences and discrepancies

in the Defendants’ accounts,” which was not sufficient

to “survive summary judgment or win a motion to recon-

sider.” For those reasons, we affirm the district court’s

grant of summary judgment in favor of Officers Martin

and Brown on the Estate’s excessive force claims.

III.

For the foregoing reasons, we A FFIRM the jury verdict in

favor the defendants, we A FFIRM both the district court’s

grant of judgment as a matter of law on qualified immu-

nity grounds to Officers Straub, Martin, and Brown, as

well as the post-verdict grant to Deputy Chief Bender,

Deputy Chief Lucker, Sgt. Hunter, and Lt. Zelt, and we

A FFIRM the district court’s grant of summary judgment in

favor of Officers Martin and Brown on the Estate’s exces-

sive force claim.

12-13-12