Reply Brief — Martin v. Hanic

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No. 10-170 i ¢ ann

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OFFICER BRIAN MARTIN, OFFICER JASON BROWN,

OFFICER SCOTT STRAUB, SERGEANT TIM SELVIA,

SERGEANT KEVIN HUNTER, LIEUTENANT KEVIN

ZELT, DEPUTY CHIEF MARTIN A. BENDER,

and DEPUTY CHIEF DOUGLAS A. LUCKER,

each in his individual capacity,

Petitioners,

Vv.

ESTATE OF RUDY ESCOBEDO (Deceased),

RAQUEL HANIC, Personal Representative of Estate,

Respondent.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

REPLY BRIEF OF PETITIONERS

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ROBERT T. KEEN, JR.

Counsel of Record

DIANA C. BAUER

CARSON BOXBERGER LLP

1400 One Summit Square

Fort Wayne, IN 46802

Telephone (260) 423-9411

Keen@carsonboxberger.com

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

(he Seventh Circuit Applies An Imper

missible Qualified Immunity Standard .

The Absence Of A Split In The Circuits Is

Not Necessary For This Court To Grant

Certiorari To Address Whether The Law

Was Clearly Established As To The Use

Of Tear Gas And Flash Bang Devices

CONCLUSION

TABLE OF AUTHORITIES

Page

CASE

Brosseau v. Haugen, 534 U.S. 194 (2004)......20..0000...... 3

E’state of Smith v. Marasco, 318 F.3d 497 (3rd

Cir, 2008)... S.A tee 5

Hamulton v. Cannon, 80 F.3d 1525 (11th Cir.

BD hosvnsecccaigocsiemenne ee rere Nel: 2

Hope v. Peizer, 536 U.S. T30 (2002) ©... ‘2 2.4

Lawshe v. Simpson, 16 F.3d 1475 (7th Cir.

Molina v. Cooper, 325 F.3d 963 (7th Cir. 2008).......... 6

Saucier v. Hatz. 535 U.S. 194 an... ee

United States v. Lanter, 520 U.S. 259 (1997) 3 4

Wernsing v. Thompson, 423 F. 7 432 Cith Cir.

2005), cert. denied, 547 U.S. 1004 (2006)............ ool

CONSTITUTION

U.S. Const. Amend. VIII........ . Oe ee

U.S. Const. Amend. XIV ee eee

REPLY BRIEF OF PETITIONERS

A. The Seventh Circuit Applies An Impermis-

sible Qualified Immunity Standard

Respondent's primary argument in opposing the

Petition for Writ of Certiorari is that the Seventh

Circuit correctly applied this Court’s qualified im-

munity standards in holding that the officers here

had “more than enough warning to tell them when

and how they could appropriately use tear gas and

flash bang grenades to extricate a barricaded, sui-

cidal individual for an emergency medical detention.”

(Brief in Opposition at p. 15). Respondent suggests

that the Petitioners attempt to “trick” this Court into

concluding that the Seventh Circuit has departed

from traditional qualified immunity standards which

requires that officials be given fair warning that their

conduct is unlawful. (Brief in Opposition at p. 15).

However, no such trickery is employed.

Petitioner herself acknowledges that the Seventh

Circuit relied upon dicta to conclude that the use of

tear gas and flash bang grenades violated clearly

established law. She suggests that reliance on dicta is

permissible under this Court’s qualified immunity

standards citing as authority Hope v. Pelzer, 536 U.S.

730, 743 (2002). Hope involved a claim brought by

inmates against prison guards alleging Fighth and

Fourteenth Amendment violations when the inmate

was handcuffed to a hitching post for long periods of

time without being provided water or bathroom

breaks. Hope arose in the Eleventh Circuit and this

bo

Court made reference to a prior Eleventh Circuit case

which placed officers on notice that the denial of

drinking water to an inmate as punishment might be

considered constitutionally impermissible conduct.

This Court held that “the reasoning, though not the

holding, in [that] case decided by the Eleventh Circuit

in 1987 sent the same message to reasonable officers

in that circuit.” 536 U.S. at 743.

The prior Eleventh Circuit case was not dicta.

Moreover, this Court observed that the prison guards

were on sufficient notice and fair warning that their

conduct might constitute cruel and unusual punish-

ment because of binding Eleventh Circuit precedent,

an Alabama Department of Corrections regulation,

and a Department of Justice report advising as to the

constitution infirmity of using a hitching post for

punitive purposes. In light of all of those authorities,

this Court held that a reasonable officer would be on

notice that the use of a hitching post for an extended

period of time was a constitutionally impermissible

practice. As the officers had fair and clear warning

that their conduct was unlawful, it was appropriate

for the District Court to deny qualified immunity at

the summary judgment stage. Jd. at 745-46.

In sharp contrast here, the Seventh Circuit

identified none of its decisions, under facts similar to

those here, wherein it held that the use of tear gas

and flash bangs was impermissible. “Dicta is particu-

larly unhelpful in qualified immunity cases where we

seek to identify clearly established law.” Hamilton v.

Cannon, 80 F.3d 1525, 1530 (11th Cir. 1996).

Respondent ignores her burden in overcoming

qualified immunity, a burden which requires her to

offer either “a closely analogous case or evidence that

the defendants’ conduct is so patently violative of the

constitutional right that reasonable officials would

know without guidance from a court.” Lawshe uv.

Simpson, 16 F.3d 1475, 1483 (7th Cir. 1994). Brosseau

uv. Haugen, 534 U.S. 194 (2004), discussed nowhere in

Respondent’s reply, emphasizes that identifying the

clearly established right “must be undertaken in light

of the specific context of the case, not as a broad

general proposition.” 534 U.S. at 198. In Brosseau,

this Court reversed an appellate court determination

that “general tests” set forth in the Court’s Fourth

Amendment jurisprudence gave officials fair warning

that the conduct was unlawful. Jd. at 199. This Court

made clear that the general tests were not enough to

give fair warning, nor was it an “obvious case” where

general standards clearly established the answer

without developed case law.

The Seventh Circuit failed to identify any factu-

ally similar cases which would satisfy the “fair-

warning” standard which is this Court’s standard to

deprive an officer of the protection of qualified im-

munity. In Hope, Justice Stevens compared an of-

ficer’s right to fair notice to the same right to fair

notice a criminal defendant has when facing criminal

charges. 536 U.S. at 201.

Respondent is critical of Petitioners’ reliance

upon Hope, arguing that the “fair warning” discus-

sion in United States v. Lanier, 520 U.S. 259 (1997),

referenced in Hope does not alter the qualified im-

munity standard and, in fact, demonstrates that the

Seventh Circuit applied a correct standard. Although

this Court in Lanier held that a factual situation does

not have to be “fundamentally similar” so as to pro-

vide fair warning, this Court emphasized that where

a Court relies upon general rules, “a very high degree

of prior factual particularity may be necessary.” 520

U.S. at 271.

Lanter therefore supports Petitioners’ argument

that the Seventh Circuit erred in relying upon gen-

eral propositions, dicta, and cases with very little

factual similarity to conclude that the officers had

“fair warning” that the use of tear gas and flash

bangs was unconstitutional under the circumstances

they faced. The Seventh Circuit frames the qualified

immunity inquiry as being whether the questioned

conduct was “clearly forbidden” by existing law.

Wernsing v. Thompson, 423 F.3d 732, 739 (7th Cir.

2005), cert. dented, 547 U.S. 1004 (2006). By not

relying upon cases to place the officers on notice that

their conduct was “clearly forbidden,” the Seventh

Circuit departs from this Court’s well-settled quali-

fied immunity analysis, abandoning that analysis in

favor of a significantly lesser standard.

The lesser standard employed by the Seventh

Circuit, if permitted to stand, effectively eliminates

the application of qualified immunity in all but the

most clear-cut of cases. The lesser standard contra-

venes this Court’s admonition in Saucier v. Katz, 535

U.S. 194, 205 (2001) that reasonable mistakes are

entitled to the protection of qualified immunity.

Under the Seventh Circuit’s standard, qualified

immunity would become the exception rather than

the rule even where there are no cases to place offi-

cers on fair notice and warning that their conduct

was constitutionally prohibited. As a result, certiorari

should be granted to address the Seventh Circuit’s

significant departure from traditional qualified

immunity analysis.

B. The Absence Of A Split In The Circuits Is

Not Necessary For This Court To Grant

Certiorari To Address Whether The Law

Was Clearly Established As To The Use Of

Tear Gas And Flash Bang Devices

Respondent suggests that certiorar 1s inappro-

priate because Petitioners do not point to a split in

the circuits as to the use of tear gas and flash bangs.

No authority is cited for the proposition that a split of

authority is a prerequisite to this Court granting

certiorar.

The Seventh Circuit cited not a single case

which would have placed the officers on fair notice

and warning that their conduct in deploying tear

gas, or the amount of tear gas deployed in order to

drive the suicidal Escobedo out of his high rise apart-

ment, was clearly unlawful. Likewise, the Seventh

Circuit Majority Decision relies upon nothing more

than dicta and Estate of Smith v. Marasco, 318 F.3d

497 (3rd Cir. 2003) to hold that the law was clearly

6

established as to the use of flash bang devices under

the circumstances presented by this Court. The

Seventh Circuit Majority Decision does so to the

exclusion of its own controlling precedent, Molina ov.

Cooper, 325 F.3d 963 (7th Cir. 2003). Molina holds

that it is not unreasonable for officers to use flash

bang devices when they believe the only occupant of a

dwelling is armed, and the officers had ample reason

to be concerned about their personal safety. As Judge

Manion wrote in his dissent, under the circumstances

“The flash-bang devices may have been their safest

option.” (App. 44).

$$ @ —_$______-—-—_

CONCLUSION

The Seventh Circuit creates a new qualified

immunity standard, a standard significantly lower

than the firmly established “fair warning” standard

espoused by this Court on numerous occasions. Certi-

orari is needed to correct this error and make clear

under what circumstances the use of tear gas and

flash bangs may be used by police when confronting a

barricaded, suicidal suspect with a gun, who is high

on cocaine and refuses to voluntarily exit his high rise

C. BAUVER/#11906

.RSON BOXBERGER LLP

100 One Summit Squar

ort Wayne, IN 46802

lelephone (260) 423-94

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