explaining that "state officials may violate the Due Process Clause when their affirmative actions directly increase the vulnerability of citizens to danger or otherwise place citizens in harm's way," but holding that the defendants did not violate the plaintiffs' substantive due process rights when they unsuccessfully attempted to resolve a hostage situation
How later courts described this case
- explaining that "state officials may violate the Due Process Clause when their affirmative actions directly increase the vulnerability of citizens to danger or otherwise place citizens in harm's way," but holding that the defendants did not violate the plaintiffs' substantive due process rights when they unsuccessfully attempted to resolve a hostage situation
- holding that, under the Lewis framework, a two-day police standoff “falls within the middle-range between custodial settings and high-speed car chases, and likewise conclude that, on balance, the more appropriate standard of review is deliberate indifference.” (internal quotation marks omitted)
- holding that the plaintiff “must demonstrate that the state acted No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 13 with the requisite culpability to establish a substantive due process violation under the Fourteenth Amendment”
- concluding that the deliberate-indifference standard applied to the plaintiffs' substantive due process claim because the defendants not only had sufficient time to deliberate about their actions, but also engaged in deliberative actions
Written by the judges who cited it.
The opinion
HULL, District Judge,
dissenting.
Respectfully, I dissent. I believe the issue of exigent circumstances and qualified immunity were issues for the jury. Citing O’Brien, the district court addressed the issue of exigent circumstances as follows:
Exigent circumstances exist only where “real, immediate and serious consequences ... would certainly occur were a police officer to postpone action to get a warrant.” O’Brien, 23 F.3d 990, 997 (6th Cir.1994) (citations omitted); Welsh, 466 U.S. at 751, 104 S.Ct. 2091 . The issue, then, is whether Mr. Lekan posed a threat to his family that was both real and immediate.
This issue is particularly disturbing because of the way the Brunwick [sic] police department chose to handle the ‘situation.’ They sent two police officers to *518 the house posing as civilians (one in jeans and a sweatshirt) on the off chance that Mr. Lekan — a known paranoid might let these strangers in to “talk to his wife.” -A stable person would not have let them in. To think their chances of entry might increase after unsuccessfully attempting to deceive him and then claiming to be police officers was simply foolhardy. The police could have chosen any number of other, less confrontational, ways to check on Mrs. Lekan and her son. Although this particular incident appears to have triggered the unfortunate series of events that followed, the Court must determine whether exigent circumstances existed at the precise moment the officers entered the house.
Although the district court cites O’Brien for the definition of exigent circumstances, and concludes that this is a decision for the court, O’Brien also teaches that whether exigent circumstances existed “is a question for the jury provided that, given the evidence on the matter, there is room for a difference of opinion.” Id. at 997 . In the case before us, the district court expressly recognized an existing material dispute of fact in regard to exigent circumstances as follows:
Defendants contend that exigent circumstances justified the warrantless entry because Mr. Lekan presented an immediate threat to his family. Plaintiffs disagree on the basis that, prior to visiting the home, defendants admitted there was no probable cause to arrest Mr. Lekan and no exigent circumstances existed. Further, the officers never saw a crime being committed, nor did they hear Mr. Lekan threaten anyone.
Based upon this material dispute of fact, there is room for a difference of opinion on the issue of exigent circumstances and this issue was for a jury.
This dispute of fact is further bolstered by the report of William Callis which is significant because he was hired by the defendant City of Brunswick to conduct an independent review of the incident. In addressing exigent circumstances, although the majority finds that this was a hostage situation, in his report prepared for the defendants, Callis’ explains why this incident did not involve a hostage situation:
Upon reviewing this situation, I am of the opinion that the Lekan matter was not a hostage situation. A hostage is defined as a person held and threatened by a subject to force the fulfillment of certain substantive demands on a third party. In this situation, there was not a threat by Mr. Lekan to harm Mrs. Lekan or their son, nor was there a substantive demand by Mr. Lek-an. Therefore, it appears that Beverly Lekan and her son, John T. Lekan, were not actually hostages, but were victims of Mr. Lekan’s actions. They were in the residence when Mr. Lekan committed his criminal act and he afforded them no opportunity to leave.
Many hostage situations involve a negotiation process — or bargaining approach — to meet certain demands. In this situation, there were no substantive demands as Mr. Lekan did not want anything the authorities could provide. He already had what he wanted — his family and he was already in his own home, (emphasis in original).
Callis’ also concludes that there were a number of options open to the defendants which would also negate exigent circumstances:
However, after reviewing this matter, I can’t help but wonder if there was not a better way of conducting the “welfare check” at the Lekan residence. Perhaps the police could have asked a relative of *519 Beverly Lekan’s telephone her at home and once she was on the telephone, the police could speak to her to verify that she and her son were well. The identity and telephone numbers of Mrs. Lekan’s relatives was available to the authorities. The visiting nurses organization that was caring for Mrs. Lekan telephoned her mother, Helen Ewolski, on the morning of March 81 to advise her that Beverly was requesting to go to a nursing home. Perhaps further investigation by the police could have determined the Lekan’s health status and allowed the confrontation between the police and John Lekan to be avoided until something could be done about John’s possession of firearms in his mental condition.
Although the majority finds that there was qualified immunity for the officers in this case, in the unpublished opinion of Carpenter v. Laxton, 99 F.3d 1138 , 1996 WL 623017 (6th (Tenn.)), it was held that if the facts surrounding the existence of exigent circumstances are in dispute, and a rational jury could draw more than one inference from the conflicting facts, there are also genuine issues of material fact regarding whether or not the officers are entitled to qualified immunity. Therefore, I believe summary judgment in regard to a Fourth Amendment violation was inappropriate and the issues of exigent circumstances and qualified immunity should have been submitted to a jury.
I also believe that the plaintiffs’ excessive force claims should have gone to the jury. In this case, the district court concluded that there was no seizure because Chief Beyer did not intend to arrest Mrs. Lekan or her son, and because Mr. Lekan barricaded himself in his own home. However, in Stemler v. City of Florence, 126 F.3d 856 (6th Cir.1997), cert. denied, 523 U.S. 1118 , 118 S.Ct. 1796 , 140 L.Ed.2d 936 , (1998), Conni Black was killed in a car accident after officers threatened to arrest her if she did not return to the vehicle of her abusive, intoxicated boyfriend. The fatal accident occurred five minutes after officers returned her to her boyfriend’s vehicle, and her boyfriend left the scene. In Stemler , this court concluded that Black was in the custody of the defendant officers in the sense that they had affirmatively acted to deprive her of her liberty, rather than merely negligently refusing to act to protect her.
In regard to the manner in which Chief Beyer conducted the standoff, the district court summarizes in footnotes 12 and 13 of the Memorandum of Opinion and Order:
12 Armed tactical solutions are radical strategies used only as a last resort in hostage situations. Use of it here was premature. Police Chief Beyer commenced the plan only five hours after the standoff began. There was still hope for a peaceful resolution at this time. Mr. Lekan had completely retreated from confrontation. There was no evidence that he harmed his family or intended to harm them, and he was not shooting at police officers. There was insufficient manpower to carry out the plan successfully at this time, and the defendants did not yet have the equipment to determine the location of the residents. In addition, the plan had a high probability of failure. It called for officers to run through the house with loaded weapons looking for Mr. Lekan after creating a diversion through the use of incendiary devices. It is unclear what the police would have done had Mr. Lekan been discovered in close proximity with his family. Also, the incendiary devices set a fire in the house, which the officers then had to stop to put out.
13 Beyer ordered this vehicle to the scene without informing his chief negoti *520 ator, Sergeant Solar. Thus, the vehicle appeared on the scene while Solar was still attempting to negotiate a peaceful resolution of the standoff. This could only confirm Mr. Lekan’s paranoid suspicion that the police were out to get him, and that he could not trust them. Although the vehicle’s loudspeaker ordered Mr. Lekan to pick up the telephone or come out of the house, the phone line had been disconnected — further reinforcing Mr. Lekan’s paranoia. And while an armored vehicle circling a home, flooding it with light, and caving the walls in might cajole a sane person into submission to police authority, this strategy was riskier with an unstable person such as Mr. Lekan.
In addition, the report of William Callis, in regard to his interview with Chief Beyer, indicates that the electric power to the Lekan home was cut off “to manipulate Mr. Lekan’s environment,” and “the lack of power allowed the police to control the area.” Mr. Lekan’s access to the outside was also restricted by open telephone fines between the negotiators and the Lekan residence. According to Callis’ report, it was Chief Beyer’s belief that use of the armored vehicle would show Mr. Lekan “enough potential force to get him to surrender,” and force was also shown by the many armed police officers who were members of the SWAT, teams that surrounded the Lekan home.
Construing the facts in a fight most favorable to the plaintiffs, it is obvious that all the members of the Lekan family were affected by the actions of the police in controlling communications to the home, in the control of their environment by cutting off the power to the home which left them without heat and electricity, by the introduction of tear gas into their home by officers who used ferret rounds fired from shotguns, and by the show of force as armed officers with the armored vehicle surrounded their home. Consequently, I believe the Lekans were in the custody of the defendant officers in the sense that the officers had affirmatively acted to deprive all of them of their liberty.
Taking the evidence in a fight most favorable to the plaintiffs, given the advice detailed by Callis that Chief Beyer had from mental health professionals at the scene, the evidence in this case would support a finding by the jury that in conducting the standoff, Chief Beyer did not act with “objective reasonableness.” Therefore, summary judgment should not have been granted in regard to the plaintiffs’ Fourth Amendment claims.
In the alternative, even if there was no seizure, the defendants could have been found to have used excessive force under the analysis of a Fourteenth Amendment Claim. The district court concluded that Chief Beyer was held to a deliberate indifference standard in regard to his supervision of the standoff, and under the facts of this ease, this claim could not survive summary judgment because the plaintiffs could not show that he was deliberately indifferent to an obvious risk of harm actually suffered by the plaintiffs.
Based upon the factual circumstances of this case, Chief Beyer had a reasonable opportunity to deliberate and consider various alternatives prior to electing a course of action, and his actions would be deemed conscience — shocking if they were taken with “deliberate indifference” towards the plaintiffs’ federally protected rights. Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir.2001). Viewing the facts as summarized by the district court in a fight most favorable to the plaintiffs, I believe a rational jury could find that Chief Beyer’s course of action was deliberately indifferent because a rational jury could conclude that there was an obvious threat of physi *521 cal injury to the Lekans (and the potential threat of physical injury was the very premise for the officers’ “welfare check,” in the first place). Chief Begley also knew Mr. Lekan was paranoid and that his mental condition and unpredictable behavior were major factors to contend with in regard to the entire incident. In spite of this knowledge, he did not take advantage of the advice of mental health professionals who were present at the scene. In addition, Chief Begley was specifically told that the use of tear gas could result in physical harm to Mrs. Lekan, however, he ignored this risk to her and was deliberately indifferent to the danger to her.
The issue of qualified immunity was also addressed in Stemler, 126 F.3d at 868 , which held that the defendants should have known under clearly established law that they owed a duty to Black not to force her in harm’s way after officers had taken affirmative action which deprived Black of her liberty. Similarly, in this case, because the Lekans had been confined in their home and deprived of their liberty by the standoff situation, the defendants should have known under clearly established law that they owed the Lekans a duty not to force them into a situation where they would suffer harm.
In this case, taking the evidence in a light most favorable to the plaintiffs, the evidence would support a finding by the jury that in conducting the standoff, Chief Beyer did not act with objective reasonableness and/or that he was deliberately indifferent to a threat of physical injury to the Lekans, and as a matter of law, he is not entitled to qualified immunity. Accordingly, I believe summary judgment should not have been granted in regard to the plaintiffs’ excessive force claims.
In regard to the plaintiffs’ state causes of action, the Sixth Circuit has recognized a general rule disfavoring a district court’s exercise of pendent jurisdiction when federal issues are dismissed before trial. Gaff v. FDIC, 814 F.2d 311, 319 (6th Cir.1987). However, the district court in this case did address each of the plaintiffs’ state claims after finding no merit to the plaintiffs’ federal claims. I believe these state claims should have been dismissed without prejudice.
CONCLUSION
For the reasons stated herein, based on disputed material facts in this case, I believe summary judgment for the defendants in regard to the plaintiffs federal and state claims was inappropriate, and the judgment of the trial court should have been reversed and remanded.