CA6: During a long standoff, police sent for coffee and granola bars but no warrant before a sniper killed the suicidal defendant before he could kill himself

Police engaged in a long standoff with a suicidal subject whose only alleged crime was to fire a gun into the woods which he thought were unoccupied. Every window in the house was broken by tear gas canisters, and he didn’t come out. The police threw in a throw phone to communicate with him, but he wouldn’t pick it up. Finally, he was killed by a police sniper to prevent him from committing suicide. The court noted the police sent out for coffee, hot chocolate, and granola bars but never a search warrant. The district court erred in granting summary judgment before trial (reaching a defense verdict) as to some defendants. Reversed for trial on remaining defendants.
Carlson v. Fewins, 13-2643 (6th Cir. September 11, 2015):

The choice to call for granola bars but not a warrant appears to have been driven by the Sheriff’s misunderstanding of the Fourth Amendment. “[I]nconvenience to the officers and some slight delay … are never very convincing reasons … to bypass the constitutional [warrant] requirement.” Johnson, 333 U.S. at 15. Fewins’s approach—choosing not to even request a warrant because he thought a misdemeanor arrest warrant would not have been “handy” or “put [the Team] in a better bargaining spot”—misses the point entirely. Judicial warrants are not intended to blindly facilitate whatever course of action a sheriff prefers. They are required by the Fourth Amendment “so that an objective mind might weigh the need to invade th[e] privacy [of the home] in order to enforce the law.” McDonald v. United States, 335 U.S. 451, 455 (1948). The Fourth Amendment thus protects people from the power of the state by requiring judicial preapproval, time permitting, of intrusive or forceful entrances and seizures. Johnson, 333 U.S. at 13–14.

Instead of giving a sheriff the discretion to decide whether to seek a warrant from a neutral judicial officer based on how helpful the warrant would be to the sheriff, “[t]he point of the Fourth Amendment” is to vest the discretion to approve or deny an officer’s plan to seize a person or search a house in a “neutral and detached magistrate.” Id. The warrant requirement is relaxed when an emergency situation makes it unreasonable to delay long enough to seek one, not when—as Fewins suggests here—a warrant simply would not have been particularly useful in the field. The facts available at summary judgment raise an inference that the Team had the time—and thus the constitutional obligation—to get a warrant from a judge before entering Carlson’s house with tear gas and surveillance equipment.

“We are not dealing with formalities.” McDonald, 335 U.S. at 455. In this case, a neutral magistrate evaluating an application for an arrest warrant might have questioned the wisdom of a tear gas assault in response to Carlson’s statement that he “kn[e]w at some point [they were] going to deploy tear gas, and when [they did], that w[ould] be the start of the war. And [he was] going [to] kill everybody.” An objective judge might also have clarified whether the Team was trying to save a disturbed and dangerous man or take him into custody on a misdemeanor weapons charge. Whatever the goals, a judge setting parameters on the warrant might have taken note of experts’ consistent advice to law enforcement that, “[t]echniques of eliciting compliance on the part of [emotionally disturbed] subjects that may work with criminal subjects are not likely to work with emotionally disturbed people” so “officers should remain calm, exercise restraint, reassure the subject, avoid excitement, and attempt to avoid gathering crowds.” Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of the Circumstances Relevant to Assessing the Police Use of Force against Emotionally Disturbed People, 34 Colum. Hum. Rts. L. Rev. 261, 293 (2003).

Longstanding precedent in this circuit leaves the factual question of exigent circumstances to the jury in a civil case. A quarter-century ago, a panel facing similar circumstances explained:

Although, in a motion to suppress evidence in a criminal case, the factual determination whether exigent circumstances existed to excuse a warrantless arrest is a question for the court, when the issue arises in a civil damage suit it is properly submitted to the jury providing, given the evidence on the matter, there is room for a difference of opinion.

Here, there is very considerable room for disagreement . . . .

. . . .

Since there was room for disagreement whether any of the exigent circumstances existed that are ordinarily held to justify a warrantless arrest, we hold that the jury should have been given the issue to decide under proper instructions. We therefore remand for a new trial.

Jones v. Lewis, 874 F.2d 1125, 1130–31 (6th Cir. 1989) (emphasis added) (citations
omitted); accord O’Brien, 23 F.3d at 998 (“In a civil damage suit, whether exigent circumstances existed to excuse a warrantless arrest is a question for the jury provided that, given the evidence on the matter, there is room for a difference of opinion.”).

The Estate’s evidence suggests that in the split second of their choosing and without a warrant of any kind, the Team decided to end hours of tense, quiet waiting by taking the precise action that Carlson had described as “the start of the war.” A jury could find the totality of the circumstances made this unreasonable, not just with 20/20 hindsight, but from the perspective of any reasonable person responsible for rendering aid to an armed and obviously emotionally disturbed person and that no immediate danger exigency excused the various warrantless actions taken against Carlson while he was taking refuge in his home. In a situation such as this, where various inferences are possible, the courts have decided that the reasonableness of police conduct should be decided by a jury.

We therefore reverse the district court’s order dismissing the counts against the county and the supervising officers and remand the case so a jury may decide whether the defendants’ various warrantless seizures and searches during a standoff that began with requests to save Carlson’s life and ended with a sniper shooting him dead were reasonable. We express no position on the merits of the alternative defenses pretermitted by the district court’s erroneous conclusion that exigent circumstances excused the warrant requirement—i.e., whether municipal liability attaches to the choices made by Fewins and Drzewiecki.

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