holding that setting building on fire to "smoke out" barricaded suspect was subject to Fourth Amendment reasonableness test to determine whether destruction of property was warranted
How later courts described this case
- holding that setting building on fire to "smoke out" barricaded suspect was subject to Fourth Amendment reasonableness test to determine whether destruction of property was warranted
- holding that setting budding on fire to “smoke out” barricaded suspect was subject to Fourth Amendment reasonableness test to determine whether destruction of property was warranted
- holding that plaintiffs failed to create a jury question as to whether burning down house where heavily armed fugitive was barricaded was unreasonable use of force
- plaintiff opposing summary judgment on qualified immunity must present evidence that information upon which the officer relied involves a factual dispute
Written by the judges who cited it.
The opinion
HEANEY, Senior Circuit Judge,
concurring.
Although I agree that there is insufficient evidence in this record to show that either Blasingame or Lee knew that Gordon Kahl was dead before the fire started, I believe the record does give some support to Ginter’s allegations. Thus, I would go a step further than my colleagues. My views are based on the following from the record:
First, Kahl’s autopsy report indicates that he was killed at approximately 5:58 p.m. by a bullet from Sheriff Matthews’ .41 caliber handgun. The autopsy report also concludes that Kahl was killed before the fire started. There is also some support for Ginter’s allegation that Kahl’s body had somehow been dismembered. Tom Lee testified at his deposition that when he found Kahl’s body after the fire was extin *390 guished, “there were no arms or legs attached” to the corpse. This Court, in United States v. Udey, 748 F.2d 1231, 1235 (8th Cir.1984), wrote that “[t]he body of a man burned beyond recognition was also discovered; it was later identified by the Medical Examiner as Gordon Kahl.” Although we said nothing about Kahl’s body being dismembered in Udey , none of the defendants in this case have disputed Ginter’s statements. The autopsy report indicates that Kahl’s right arm and both legs were fractured; an addendum to the report states that Kahl’s charred foot was delivered to the medical examiner on June 29, 1983, by Lawrence County Deputy Perry Webb, almost a month after the shootout occurred.
Second, there is no evidence in this record, nor have any of the defendants alleged, that anyone other than Matthews, Hall, or Fitzpatrick was present in the house after Kahl was shot and before the fire was extinguished. On June 9, 1983, Norma Ginter gave a statement to the Lawrence County Sheriff’s Department that only she, Leonard Ginter, and Gordon Kahl were in her house on June 3, 1983. Thus, after the Ginters were taken from the scene, the only people in the house were Matthews, Hall, Fitzpatrick and Kahl. Finally, Ginter heard someone scream, “We need more fuel!” before she was arrested and removed from the area. These facts, undisputed by the defendants, support Gin-ter’s theory of the case.
Furthermore, I believe that the district court erred when it held that no facts exist to support Ginter’s allegation that any of the law enforcement officers knew of Kahl’s death. Sheriff Matthews entered the house at approximately 5:55 p.m. and must have shot Kahl in the back of the head soon thereafter, as Kahl died from the gunshot wound at 5:58 p.m. Thus, it is possible that Matthews knew when he left the house that Kahl was dead. Two other men, U.S. Marshal Jim Hall and Arkansas State Trooper Ed Fitzpatrick, entered Gin-ter’s residence with Matthews. The record indicates that Hall talked to Matthews after they fled from the house. This evidence raises the possibility that a trier of fact could find that Fitzpatrick or Hall either saw Kahl being shot or learned of Kahl’s death from Matthews before Matthews was taken to the hospital. If these men knew of Kahl’s death and allowed the destruction of the house to proceed, they would not be protected from suit.
Thus, although I agree with the district court that Ginter failed to indicate how Blasingame or Lee can be attributed with the knowledge of Kahl’s death, I disagree with the district court that Ginter failed to create a question of fact as to whether any of the other law enforcement officers knew that Kahl was dead at the time the diesel fuel was used on Ginter’s residence.
I would agree that, if Kahl had been alive and shooting at the law enforcement officers from the house, the amount of force used to effectuate his arrest may have been reasonable. But the autopsy report shows that Kahl was not alive after 6:00 p.m. I do not make this point to minimize the heinousness of Kahl’s crimes. I merely wish to point out that, if an allegedly armed and dangerous fugitive is killed during an arrest attempt and law enforcement officers are aware of that fact, any further use of destructive force becomes unnecessary, unreasonable and unconstitutional.