CA6: Officers not immunized by shooting man in the smoke and noise from a flash bang device

Use of a flash bang device is governed by the Fourth Amendment. Its use by the police cuts both ways: It creates noise and smoke and a bright light, and it disables the citizen briefly, but it also disables the police. Are they reckless when they shoot into the smoke not fully knowing what’s going on? A jury will decide in this case. Jones v. Sandusky County, 541 Fed. Appx. 653 (6th Cir. 2013):

Nevertheless, we affirm the district court, given several pieces of evidence that, when viewed collectively and under the totality of the circumstances, create a material question of fact as to whether Jones posed a serious, objective threat to the defendants. Unlike the defendant police officers in Chappell, who first discovered the decedent hiding in an upstairs closet and ordered him out, which he did before raising a knife in a threatening manner, here defendants confronted the previously-sleeping Jones soon after entering the home, meaning there was less time for the TRT members to assess the risk presented to them. Further, defendants confronted Jones only seconds after detonating a flash-bang device which, the parties later showed, produces an explosion of 175 decibels and a light flash of 6 to 8 million candelas. While the district court took this as evidence as to what Jones was able to see or hear, it also goes to what the officers were able to see and hear as they approached Jones’s location on the couch, which is an appropriate consideration in determining the officers’ reasonableness. In fact, at least one of the defendants noted the circumstances created by the flash-bang device during the subsequent investigation:

MARIO: So, we came around the corner, and I’m tryin[g], I’m tryin[g] to find the subject, basically, because I mean, you know, peakin through the window and now you’re in the house . . . and I see his body, I’m trying to concentrate on where’s his weapon, where’s his face, what’s he doin [sic]; this and that, I lost sight of his face, as far as, what his expressions are or anything, because of the smoke, the flash/bang went off in real close proximity to him, and there, there was a lot of smoke in that room[.]

. . . .

I could hear barking orders from behind me. And I’m still trying to get my ears straight from the flash-bang, you know … you know I’m trying to get everything straight as far as hearing, but I could hear screaming coming from behind me identifying ourselves and saying type of words ‘drop it; don’t do it, don’t do it, don’t do it.’ I know that was running through my mind. I couldn’t swear that I was saying it, but it was running through my mind ….

(R. 39-5 at 10). Similarly, Karn stated that the smoke was still present and got worse as Mario and Jose fired shots at Jones while on the couch. Karn also stated that he could not see if Jones shouldered his weapon or had his finger on the trigger before Jose and Mario fired at him. This evidence goes beyond the “speculation” as to the impact of the flash-bang device rejected by this Court in Whitlow v. City of Louisville, 39 F. App’x 297, 307 (6th Cir. 2002) (noting that plaintiff had presented no evidence on whether the flash-bang device distracted decedent). Here, there is evidence in the record that the flash-bang device distracted or impaired both Jones and the TRT members. (R. 41-6 at 51 (“The flash-bang would cause momentary hearing loss and visual difficulties for the officers … making it difficult for tactical team members to see.”)). Read in conjunction with testimony that gunfire occurred immediately after the detonation of the flash-bang device, the fact that the police had not made prior contact with Jones, and the evidence that Jones was asleep prior to the detonation of the flash-bang device, this evidence creates a genuine issue of material fact as to what threat the police perceived before they fired at Jones and, more importantly, whether that threat was reasonable.

Mario and Jose also challenge the fact that the district court did not address whether Jones’s right to be free from deadly force was clearly established in these circumstances. The right to be free from deadly force when not posing a reasonable threat to others is clearly established in this circuit. See Bletz, 641 F.3d at 752 (citing Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006) (stating that the court has clearly established that a person has a “right not to be shot unless they are perceived as posing a threat to officers or others”)). Although there may be no case law directly dealing with these factual circumstances, this case is “governed by the rule that ‘general statements of the law are capable of giving clear and fair warning to officers even where the very action in question has not previously been held unlawful.'” Walker, 649 F.3d at 504 (quoting Smith v. Cupp, 430 F.3d 766, 776-77 (6th Cir. 2005)). Accordingly, we affirm, on different grounds, the district court’s denial of qualified immunity as to the use of deadly force at the summary judgment stage.