On September 3, 2014, the Sixth Circuit Court of Appeals of decided the Krause v. Redford Police Department, et al.[i], in which they upheld as reasonable the use of a flash-bang grenade and shooting of a man who was barricaded in a room with a gun and shot at officers. The relevant facts of Krause, taken directly from the case, are as follows:
The United States Marshals arrived at Matthew Krause’s home in Redford at nine in the morning on December 12, 2008. They had a warrant for Krause’s arrest for felony possession of more than fifty grams of cocaine. When Matthew opened the door and saw the Marshals, he slammed it shut and ran into a bedroom. The Marshals followed. One of the Deputy Marshals entered the bedroom but left to take cover when he found Krause standing in the corner pointing a handgun at him. As the others took up positions around the bedroom, they again announced themselves and again explained they had a warrant for his arrest. Krause told them he had multiple guns in the bedroom and he would kill anyone who tried to come in. As they continued to encourage him to come out unarmed, he continued to threaten to kill them, saying at one point, “[L]et’s do this, I’m ready to die[,] are you[?]” R.14-3 at 2.
The Marshals called the Redford Township Police Department. The Redford SWAT team took up positions in the house, and its negotiator Sergeant Duane Gregg began talking to Krause from the hallway outside the open bedroom door. They talked for the next eight or so hours. Sometimes Krause responded to Sergeant Gregg’s questions; sometimes he stayed silent. Sometimes Krause yelled and screamed; sometimes he “got very quiet.” R.14-4 at 15 (Tr. at 51).
Krause was “very upset” with the Livonia Police Department, the neighboring department that had issued the warrant for his arrest, and thought it was out to get him. Id. at 13, 14 (Tr. at 45, 46). Sergeant Gregg heard Krause threaten “more than once . . . to come out shooting because he knew how that would end.” Id. at 15 (Tr. at 53). At one point, Sergeant Gregg brought in Krause’s father and girlfriend to talk to Krause, but those conversations “went not too well.” Id. at 16, 20 (Tr. at 56, 70-73).
Around six thirty, a pole camera showed that Krause seemed to be sleeping in the closet, prompting the SWAT team to think about entering the bedroom. They briefly considered having one member of the team enter the room behind a shield, fall on Krause, and try to secure him. But they rejected that idea. More extravagantly, they considered using the SWAT team’s tank to bring down the exterior wall of the bedroom and to seize Krause in that way. But they rejected that idea as well. They settled on using a “flash bang,” “which emits a loud bang and a bright flash of light,” United States v. Dawkins, 83 F. App’x 48, 49 (6th Cir. 2003), designed to “stun . . . Krause so he would not have an idea what was going on and who was in the room with him,” R.14-6 at 16 (Tr. at 55). Before deploying the flash bang and entering the room, they set their weapons to fire automatically because Krause was armed and had “an assault rifle in the room.” Id. at 17 (Tr. at 59).
Sergeant Nick Lentine rolled the flash bang into the bedroom. Officer Jones crossed into the room simultaneously “with the flash bang.” R.14-5 at 21 (Tr. at 75-76, 81). Officer Butler followed with Lieutenant Gillman behind him. Officer Jones remembers seeing the muzzle flash of a handgun “after the flash bang,” as Krause shot at him. Id. at 22-23 (Tr. at 81-82). Lieutenant Gillman heard shots before he entered the room—”one round, one shot, and then there was a short pause, and then there was some multiple rounds.” R.14-6 at 18, 19 (Tr. at 62, 67). Once inside, Lieutenant Gillman saw Officer Jones sitting down “checking himself” to see if he had been shot. Id. at 18 (Tr. at 63). He also saw Krause seated in the closet with his hand on a gun. The entire exchange took “seconds.” Id. at 19 (Tr. at 67). Officer Butler removed the gun from Krause’s hand. Krause was transported to the hospital, where he was pronounced dead. An investigation of the bedroom showed Krause had fired one round from a .38 revolver toward the doorway from the closet. R.14-3 at 3. A medical examination revealed that Krause had suffered twenty gunshot wounds. R.17-6 at 4-14. [ii]
Krause’s mother sued the Redford Police Department, a sergeant, a lieutenant and an officer who all were on the scene for violating her son’s Fourth Amendment right to be free from excessive force. She alleged that the use of the flash-bang and shooting him 20 times on fully automatic was excessive force. She also alleged gross negligence under state law. The district court granted summary judgment for department and the officers on all allegations.
Krause appealed the grant of summary judgment to the Sixth Circuit Court of Appeals. On appeal, Krause first argued that the use of the flash-bang was excessive force and second, that shooting her son on fully automatic, 20 times, was excessive force.
The court of appeals first addressed the use of the flash-bang to enter the room. They noted that Krause does not point to any specific way that the use of the flash-bang improperly seized or harmed her son. The court further noted that even if the flash-bang had harmed Krause, it would have nonetheless been reasonable force under the Fourth Amendment. The court stated:
[T]he officers’ use of a flash bang in this instance was reasonable. Faced with a troubled young man resisting arrest on drug charges, threatening to shoot them, expressing his willingness to die, and refusing all requests to surrender peacefully, the officers sought to minimize the risk of injury to themselves and others in entering the room. See Graham v. Connor, 490 U.S. 386, 396 (1989). Waiting until Krause appeared to be asleep was one part of the plan. Using a flash bang was the other. As the officers reasonably saw it, both features of the plan diminished the risk of injury to themselves and others. Yes, the light and noise would wake Krause. But the light and noise surely would stun and confuse Krause, giving the officers a chance to subdue Krause before he could act. And of course the flash bang dealt with the risk that Krause only appeared to be sleeping but was not. [iii]
The court did distinguish a previous Sixth Circuit case, Bing ex rel. Bing v. City of Whitehall, Ohio [iv], in which a man had shot at a group of children near his house. He then barricaded in his house. The police negotiated with him for two hours and then threw pepper spray and a flash-bang through a window of his house. Bing then shot at the police and they threw another flash-bang into the house. The house caught on fire and Bing died.
Ultimately, Bing went before the Sixth Circuit. The court held that the use of the first flash-bang was reasonable under the Fourth Amendment because the police needed “to disarm Bing and place him under arrest to abate the threat he posed to people in the area.” [v] However, the court held that the use of the second flash-bang was not reasonable because the officers “had full knowledge that it would likely ignite accelerants and cause a fire” and it created a “mortal” and “unnecessary threat” to Bing. [vi]
The Sixth Circuit noted that Bing did not apply in Krause’s case because the officers had no prior knowledge that a condition in the room may create other dangers if the flash-bang was used.
Therefore, judging the incident from the perspective of reasonable officers on the scene, the court held the use of the flash-bang was reasonable under the Fourth Amendment.
Next, the court examined whether it was unreasonable for the officer to shoot Krause 20 times with his weapon on automatic mode. At the outset, the court stated:
Whether an officer reasonably uses deadly force turns on whether “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). Officer Jones fired at Krause after he saw the flash of another gun. An officer in Officer Jones’ position—one who saw the flash of a gun pointing at him, who knew that Krause was armed, and who had heard him threaten to shoot—reasonably could think that Krause posed a serious threat to him and the two officers behind him. For that reason, Officer Jones acted reasonably in using deadly force. [vii]
The court then addressed whether it was reasonable for the officer to shoot Krause 20 times on automatic mode. The court stated:
[T]he number of rounds fired by the officer flows from the reasonable decision to engage the automatic-trigger function on his gun before entering the room. And no evidence shows that Officer Jones continued firing after he knew that he had already incapacitated Krause or that Krause had given up. “[I]f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. [viii]
As such the court held, since there was no evidence that the officer continued to shoot Krause after the threat posed had ended, the officers use of force was reasonable under the Fourth Amendment.
Lastly, Krause argued that the officer could have used different tactics or continued to wait for her son to surrender. The court noted that continuing to wait was not a “risk free” option as Krause had threatened several times to shoot officers. The court noted that the issue is not what other tactics may have been used, but rather “did the officers act reasonably based on what they knew at the time?” They answered this affirmatively.
Therefore, the Sixth Circuit affirmed summary judgment for the officers and the police department.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 13-2498 (6th Cir. Decided September 3, 2014)
[ii] Id. at 2-4
[iii] Id. at 4-5
[iv] 456 F.3d 555 (6th Cir. 2006)
[v] Krause at 5 (quoting Bing, 456 F.3d at 570)
[vii] Id. at 6 (see also See, e.g., Simmonds v. Genesee Cnty., 682 F.3d 438, 445 (6th Cir. 2012) (holding that officer reasonably used deadly force when faced with a suspect who “had been drinking,” “was possibly suicidal,” “fled into a heavily-wooded area,” “ignored repeated orders to show his hands,” “threatened the officers by yelling, ‘I have a gun,'” and “brandish[ed] a silver object . . . as if it were a weapon”); Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 404-06 (6th Cir. 2007) (holding that a police officer reasonably decided to shoot a suspect “to prevent [him] from firing at” other officers in light of the suspect’s “proximity to the [other officers] while armed with a rifle, his prior violent behavior, and his continued refusal to surrender and face arrest”)
[viii] Id. at 7