Carlson v. Fewins (801 F.3d 668, 2015)

OPINION

MERRITT, Circuit Judge.

This is a Fourth Amendment, constitutional tort case brought under 42 U.S.C. § 1983 against Grand Traverse County, its sheriff, and other officers whose activities on the evening of November 9, 2007, and the next morning, ended in the death of Craig Carlson at his house. In Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the Supreme Court pointed out succinctly the function of the Fourth Amendment warrant requirement as an instrument designed to force law enforcement agencies to seek review and regulation of their proposed conduct by an independent judicial officer, despite its “inconvenience to the officers and some slight delay”:

The point of the Fourth Amendment, which is often not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officers engaged in the often competitive enterprise of ferreting out crime.

See also Riley v. California, — U.S.-, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quoting Johnson, 333 U.S. at 14, 68 S.Ct. 367).

Approximately sixty police officers converged on Craig Carlson’s house beginning around 9:00 p.m. after telephone calls from family members indicated that Carlson, who was armed and dangerous, was threatening suicide while alone in his house. The next morning, hours after their last contact with Carlson, officers broke the windows and flooded the house with tear gas. The gas did not drive Carlson from his house as the officers intended. When Carlson finally reacted, hours later, he began shouting and threatening officers in his yard. A sniper, who believed Carlson was preparing to shoot one of those officers, shot through a window, killing Carlson.

The district court granted summary judgment to the county and the officers in charge of the operation who did not seek a warrant allowing them to attack Carlson’s house with tear gas or seize him inside. We reverse this ruling and remand for a jury trial. The district court did not grant summary judgment in the case against the sniper who killed Carlson, but a jury returned a verdict in his favor. Carlson’s Estate appealed various rulings in the jury trial, but we find no error and affirm the judgment below in that case.

I. Factual Background

Supreme Court precedent instructs us to extend the normal benefits of “all justifiable [factual] inferences” to the nonmovant plaintiffs when reviewing a grant of summary judgment for the defendants. Tolan v. Cotton, 572 U.S.-, -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Accordingly, we recount the facts of this ease in the light most favorable to Carlson’s Estate.

The decedent, Craig Carlson, called 911 at 8:30 on the evening of November 9, 2007, and requested a visit from a deputy to “talk.” Deputy Jason Hamilton had conducted similar “welfare checks” on Carlson the week before in response to calls from an anonymous caller and Carlson’s sister, Jaqueline Smith, who each expressed concern that depression, a recent job loss, and pending domestic violence charges might lead Carlson to hurt himself. On those prior occasions, Hamilton noted that Carlson seemed intoxicated but “very passive.” Following those visits and a conversation in which Smith indicated that Carlson was well armed and might get in a shootout with police if they tried to take him into custody, Hamilton had filed an internal report to help other officers respond appropriately to any future calls.

Smith also called 911 on November 9th to get help for her brother because she believed that he intended to die, perhaps by provoking a shootout. According to Smith, Carlson’s “guns [we]re loaded” and he was “ready to die and put a bullet in his heart.” Smith explained:

He said he has one [gun] just empty and he’s going to point it intentionally because he is dying tonight one way or another whether they shoot him or not and if they don’t, he has guns hidden all over the house ... everywhere that are loaded and if he has to he’ll shoot somebody in the knee or the arm forcing them to take him out.

She reported that Carlson had “like 2,000 rounds of ammunition.” Robert Carlson— Carlson’s brother and the personal representative of the Estate in this action — also called 911 that evening, reiterating his sister’s concerns and reporting that Carlson had “already paid for his funeral.” The family’s calls indicated that Carlson “probably [wa]s armed and dangerous ... [a]nd[] wanting probably to provoke an officer into shooting him so he wo[uld]n’t have to do it himself, shoot himself.”

Concerned that Carlson might try to provoke a shooting, a dispatcher called Carlson to let him know that a deputy sheriff was going to visit him and that the deputy would want to talk outside. Carlson rejected that idea, explaining that he had refreshments available (“pop, beer or coffee”) and that he “ha[d] no desire, this is not a, I want to shoot you, you shoot me thing.” Carlson eventually spoke with a state trooper by phone and reportedly felt better after discussing his problems.

Officers began arriving at Carlson’s house at around 9:00 p.m. They parked down the street to avoid detection and walked to the house. Carlson’s house was well lit, and unobstructed windows provided a clear view into the house. The first two officers reported seeing Carlson in his basement loading a “long gun” and later putting a pistol to his own head. They waited outside in the dark for backup.

As more officers arrived, two took positions at the rear of the house to prevent Carlson from escaping unobserved. One of those officers saw Carlson open his sliding back door and fire a single shot into the woods shortly after 10:00 p.m. The parties agree that Carlson was unaware of the officers’ locations at that time and was shooting to draw attention, though testimony from officers suggests Carlson may have believed they were near enough to hear him. The parties also agree that this was the only shot Carlson fired.

Shortly thereafter, at Grand Traverse County Sheriff Scott Fewins’s request, a large interdepartmental “Emergency Response Team” led by Traverse City Police Sergeant Steve Drzewiecki converged on Carlson’s house. This Team included approximately sixty officers from various agencies with special training in weapons and tactics appropriate for potentially volatile encounters. They surrounded the house, working in shifts to maintain a secure perimeter throughout the cold November night. The Team flattened the tires on Carlson’s truck to prevent him from escaping. They also escorted Carlson’s neighbors to safety, leaving only a disabled man who spent the night in his basement with his wife until tear gas deployed against Carlson forced him to leave the area the following morning.

At the instruction of Fewins and Drzew-iecki, a police negotiator telephoned Carlson at 11:30 p.m. and asked how they could resolve the situation. Carlson asked again for an officer to come inside and talk with him. The negotiator conferred with Few-ins who rejected that plan, citing the prior shot into the woods. The negotiator reconnected with Carlson and explained that the prior gunshot made it impossible for an officer to come inside to speak with him. Carlson denied firing the gun and denied wanting to harm anyone. The negotiator confirmed the officers’ reports of the gunshot and the weapons and called Carlson back. During the third call with the negotiator, Carlson became agitated and threatening. According to the negotiator, Carlson claimed falsely to have been a sniper in Beirut but still insisted that he did not want to hurt anyone. Carlson continued to ask to speak with an officer in person but also said he was ready for “war.”

The Team shut off Carlson’s gas line to deprive him of heat and set up lights to illuminate his house. They cut his electrical power. The negotiator testified that Carlson said, “I know at some point you are going to deploy tear gas, and when you do, that will be the start of the war. And I’m going [to] kill everybody.” Carlson refused to answer the negotiator’s calls after 3:30 a.m., but he continued making calls to his sister, leaving eleven voicemail messages in the early hours of November 10. She testified that 911 dispatchers asked her not to answer those calls, and she complied.

The Team maintained the siege of the house all night without seeking a warrant. They never considered asking for a warrant because he believed it was unnecessary. Asked to explain why he would not need a warrant to arrest Carlson in his home, Fewins referred to his earlier speculation that the shot into the woods might have constituted “reckless discharge of a weapon” — a misdemeanor. He then justified his warrantless, approach by explaining, hypothetically, what would have happened if he had requested and received a warrant:

[N]ow we have a misdemeanor warrant. That warrant is not going to be easily served anyways, because, number one, it was committed in our presence, so we have the right to act upon that as soon as we can safely take him into custody. So we don’t need the warrant.

And the other thing is, even with the warrant, it does not put us in any better of a bargaining spot or any better of a position because it was still impossible for us to enter that residence and serve that warrant on him in his state being barricaded like he was. So the warrant would have been to no avail. The only time the warrant would have been handy is if we had decided to just vacate the area, leave Mr. Carlson alone, sleep it off, hopefully [sic] that he wouldn’t go anywhere and hurt anybody or himself, and then serve the warrant at a later time.

Fewins Dep. 21.

After more than two hours without seeing or hearing anything from Carlson, the Team shot fourteen canisters of tear gas into his house, breaking every window and denting the siding. Carlson did not respond. About an hour later, and still without seeking a warrant, they fired a second round of tear gas. Carlson still did not respond. At 7:00 a.m. — more than nine hours into the standoff and still without a warrant — the Team tossed a “throw phone” through the broken living room window. The throw phone included basic telephone equipment that allowed the Team to “call” Carlson and give him a chance — which he never took — to answer the call. But it was not an ordinary telephone. Fewins emphasized that it would not allow Carlson to “call the radio station” or “to call, you know, an attorney.” Id. at 41. It also contained secret microphones and a hidden camera that allowed the negotiator to surreptitiously listen to sounds in the house and could have allowed them to see inside. According to Fewins’s deposition testimony, he “never” seeks a warrant before using throw phones.

The Team next saw Carlson moving around the house at around 9:00 a.m. A trio of deputy sheriffs — Travis Chellis and two others — had positioned themselves in Carlson’s yard, not far away from the house. When Carlson started shouting about the damage to his house and threatening to sue, Chellis requested permission to speak with Carlson and began a conversation. During the ten minute conversation, Carlson reportedly walked back and forth in front of a large window with a rifle pointing in the general direction of the three deputies in the yard and another gun visibly hanging from a strap around his neck. Chellis radioed a request for someone to get a “long gun with glass” (a rifle with a scope) on Carlson.

At trial, Jetter testified that the tone and substance of his friend Chellis’s request over the radio left him with the impression that Chellis was in trouble. After hearing Chellis’s radio message, Jet-ter decided to move to a better position with a clear view of the window. After notifying his commanders, he ran to the new location while watching the house. Jetter testified that after taking a new position with a better view of the window:

[i]t was a matter of gathering a couple breaths, gathering my composure, thinking out loud[:] What is he doing? Why is he doing this? Oh my God, I’m going to have to shoot this person. I thought about my family. I thought about Sheriff Fewins. I thought^] [W]hy is he doing this? Why is he moving his finger? Oh, my. I had to take a breath, and that’s when I shot.

Jetter’s bullet struck Carlson in the head, killing him instantly.

The district court in this case concluded that “[e]xigent circumstances existed at the time of each alleged violation of the warrant requirement and therefore no constitutional violation occurred.” It did-not consider how police action in the early hours of the conflict reduced the risk that Carlson could harm others. Nor did it consider whether Carlson’s hours of inaction before, during, and after the tear gas assault undermined the defendants’ claim of imminent danger. Instead, the court relied on a broad finding of perpetual exigency to hold that “the use of tear gas ... was objectively reasonable” and therefore not an excessive use of force. Op. & Order 29. Addressing the tear gas, it concluded that “reasonable officers could believe that the first use of tear gas around 5:80 a.m. was necessary to prevent imminent harm to themselves in particular.” Id. Likewise, the district court concluded that when they again flooded Carlson’s house with tear gas an hour later, “nothing had terminated the exigency,” so “reasonable officers could believe that the second round of tear gas was necessary to prevent imminent harm to themselves.” Id. at 29-30. Thus, the district court believed that exigent circumstances existed at 9:00 p.m. when the police began surrounding Carlson in his house and continued unabated for more than twelve hours until the sniper killed him there the next morning.

II. Fourth Amendment Exigency

The Fourth Amendment prevents police officers from intruding into a person’s house without first securing permission from a disinterested magistrate unless exigent circumstances would make it unreasonable to wait for judicial approval. “To arrest a person in his home, police officers need both probable cause and either a warrant or exigent circumstances.” Goodwin v. City of Painesville, 781 F.3d 314, 327 (6th Cir.2015). For exigent circumstances to excuse a warrantless search or seizure, there must be both “compelling need for official action and no time to secure a warrant.” Missouri v. McNeely, — U.S. -, 133 S.Ct. 1552, 1559, 185 L.Ed.2d 696 (2013) (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). “Police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Time is an essential factor when an immediate threat forms the basis for police claims of exigency. We have held that “[ejxigent circumstances terminate when the factors creating the exigency are negated.” Bing v. City of Whitehall, 456 F.3d 555, 565 (6th Cir.2006) (citing Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). If the dangers persist or increase, the exigent circumstances also persist. See id. (“The passage of time did not terminate the exigency because the ticking of the clock did nothing to cut off Bing’s access to his gun, or cure him of his willingness to fire it, or move to safety the people nearby who refused to evacuate.”). But those dangers may diminish over time as police gain a measure of control, and when they do, the exigency and reasonableness of warrant-less intrusions diminish in tandem. When police initiate action after a long delay with no new provocation, the delay itself may suggest an unreasonable evasion of the Fourth Amendment rather than a reasonable response to a dynamic threat. See O'Brien v. City of Grand Rapids, 23 F.3d 990, 998 (6th Cir.1994) (“[T]he fact that the officers waited four-and-a-half hours before deciding to use the first probe belies defendants’ claim that exigent circumstances existed that prevented them from seeking a warrant.”).

Any exigent circumstances that could have justified the warrantless use of tear gas and defendants do not claim to have been in hot pursuit of Carlson or otherwise concerned that he might destroy vital evidence. Indeed, nothing indicates that the Team was pursuing him for any past crimes, at least not for anything other than the possible reckless discharge of a weapon identified by Fewins as a likely misdemeanor. A misdemeanor such as that would not generally establish exigent circumstances to justify a warrantless entry into Carlson’s house. See Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (“When the government’s interest is only to arrest for a minor offense, th[e] presumption of unreasonableness [that attaches to all war-rantless home entries] is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.” (footnote omitted)).

Viewing the totality of the circumstances from the perspective of a reasonable officer at the time of the first tear gas barrage, Carlson was thought to be (and actually was) alone in the house. His neighbors were safely out of Carlson’s reach (though not, as it turns out, entirely safe from the tear gas). The Team had Carlson contained with snipers and other officers carefully monitoring his floodlit house. Even after Carlson stopped responding to their negotiator, they had family members near at hand with open lines of communication. They had time to call a convenience store for refreshments; they had time to call a judicial officer. The choice to call for granola bars but not a warrant appears to have been driven by the Sheriffs 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, 68 S.Ct. 367. 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, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The Fourth Amendment thus protects people from the power of the state by requiring judicial preappro-val, time permitting, of intrusive or forceful entrances and seizures. Johnson, 333 U.S. at 13-14, 68 S.Ct. 367.

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.