Estate of Escobedo v. Bender, No. 08-2365, involved a 42 U.S.C. section 1983 suit filed by a personal representative on behalf of the deceased plaintiff against a city and individual members of the city's police department claiming excessive force arising from plaintiff's shooting death.
As stated in the decision: "Based on the pre-existing case law, it was clearly established as of July 19, 2005, that throwing a flash bang device blindly into an apartment where there are accelerants, without a fire extinguisher, and where the individual attempting to be seized is not an unusually dangerous individual, is not the subject of an arrest, and has not threatened to harm anyone but himself, is an unreasonable use of force."
Thus, in affirming the denial of defendants' motion for summary judgment, the court held that the district court did not err in finding that the officers were not entitled to qualified immunity for their decision to use tear gas to extricate plaintiff from his apartment and their decision to use more tear gas and flash bang grenades to enter his apartment.
- Full text of Estate of Escobedo v. Bender