Monday, April 05, 2010
Ind. Decisions - 7th Circuit issues two Indiana opinions today
In Estate of Rudy Escobedo v. Binder (ND Ind., Springmann), a 42-page, 2-1 opinion, Judge Kendall (Hon. Virginia M. Kendall, District Judge for the ND of Illinois, isitting by designation) writes:
Raquel Hanic, the personal representative of the estate of Rudy Escobedo (“the Estate”), filed suit pursuant to 42 U.S.C. § 1983 and Indiana state law against the City of Fort Wayne and against individual members of the Fort Wayne Police Department. Hanic asserted that the individual officers used excessive force against Escobedo when they deployed tear gas into his apartment in an attempt to extricate him from the unit where he had isolated himself threatening to commit suicide. After refusing to come out, the officers used additional tear gas and flash bang grenades to enter the apartment, setting fire to the exterior room before throwing the flash bang grenades into the darkened bedroom inches from Escobedo’s head rendering him blind and deaf before shooting him to death. The Defendant Officers filed a motion for summary judgment asserting, among other things, that they were entitled to qualified immunity for their actions. The district court denied the motion, in part, finding that the officers were not entitled to qualified immunity for the entry with the tear gas and flash bang devices. The officers then filed this interlocutory appeal. For the following reasons, we affirm. * * *In U.S. v. Billian (ND Ind., Lee), an 8-page opinion, Chief Judge Easterbrook writes:
The district court did not err in denying Defendants’ Motion for Summary Judgment based on qualified immunity. Accordingly, we AFFIRM the decision of the district court.
MANION, Circuit Judge, concurring in the judgment in part and dissenting in part. [starts at p. 33] * * *
I disagree, however, with the court’s conclusion that the defendants are not entitled to qualified immunity for their use of the flash-bang devices. The majority opinion holds that on the date of the incident it was clearly established that the defendants’ employment of the flash-bang devices was an excessive use of force. In reaching its conclusion, the court relies upon six cases that involved the use of such devices by law enforcement. But as explained below, those cases neither separately nor collectively clearly established that the defendants’ conduct was unconstitutional. And because the defendants’ use of the flash-bang devices—unlike their use of the tear gas—was not obviously in violation of the decedent’s constitutional rights, they are entitled to qualified immunity on this issue.
Larry Billian pleaded guilty to two marijuana offenses and to possessing a firearm in connection with those crimes. His conditional plea reserved the right to appeal from the district court’s order denying his motion to suppress evidence seized from his home. The seizure was authorized by a warrant issued by a state judge. Billian contended that the affidavit Detective Teresa Smith had tendered in support of the application failed to establish probable cause and contained material falsehoods and omissions. The district court held a hearing under Franks v. Delaware, 438 U.S. 154 (1978), and found that, although Smith’s affidavit was inaccurate in some respects, Billian “failed to demonstrate by a preponderance of the evidence that the affidavit contained deliberate lies or a reckless disregard for the truth.” The judge concluded that the affidavit established probable cause—and that, even if it did not, suppression is inappropriate because Smith obtained a warrant in good faith. See United States v. Leon, 468 U.S. 897 (1984). * * *
No more need be said about the sentencing argument that Billian’s counsel made, but a few words are in order about a potential argument that counsel overlooked. When converting the cash to a drug equivalent, the presentence report treated 1 pound as 2.2 kilograms. That’s backward: 1 kilogram is 2.2 pounds. This error, which no one noticed, increased Billian’s relevant conduct from 370 kilograms of marijuana to 490, and his offense level from 23 to 25. The presentence report calculated a Guidelines range of 70 to 87 months; the correct range was 57 to 71 months. If the district court thought that Billian deserved a sentence toward the bottom of the range, then this error may have added a year to his imprisonment. But because 70 months is within the correct range—or the judge may have selected the 70- month term independent of the Guidelines—it may be that the computation would not affect the sentence. * * *
The judgment of conviction is affirmed. We order a limited remand under the Taylor–Paladino procedure so that the district judge can tell us whether the error in converting pounds to kilograms affected the exercise of discretion in sentencing. If the judge answers yes, we will remand for a full resentencing; if the judge answers no, we will affirm Billian’s sentence.
Posted by Marcia Oddi on April 5, 2010 02:55 PM
Posted to Ind. (7th Cir.) Decisions