The U.S. 6th Circuit Court of Appeals in Cincinnati, Ohio.
This case is a little over a year old, but the decision of the United States 6th Circuit Court of Appeals should send a serious wake-up call to law enforcement tactical teams across the nation. At issue was the use of “flash bangs” and automatic firearms in the apprehension of a wanted felon who engaged officers and the community with gunfire.
Though the 6th Circuit covers only Michigan, Ohio, Kentucky, and Tennessee, the decisions of Federal Appellate Courts are reviewed and strongly considered when similar cases are reviewed by the other Circuits. The case may only be binding within the 6th Circuit, but its language and tone will be felt across the nation.
The new Low Roll flash bang by Def-Tec (photo by Safariland).
The Use of Flash Bangs as Force
On September 3, 2014, the United States 6th Circuit Court of Appeals decided the case of Krause v. Redford Police Department, et al. In the case the Appellate Court upheld 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 as reasonable. As you read the details it is obvious why that decision was rendered. However, in granting the officers Summary Judgment the Court referred to another case they had decided with alarming language in regards to the use of flash bangs.
United States Marshal Seal (photo by us marshals.gov)
U.S. Marshals Attempt Warrant Service
During this case Deputy U.S. Marshals went to Matthew Krause’s Redford home to serve a Federal arrest warrant on Krause for felony possession of more than 50 grams of cocaine. When Krause opened the door he saw the Marshals, and slammed the door shut before running into a bedroom. The Marshals pursued Krause into the house. One of the Deputy Marshals followed Krause into the bedroom, but backed out to take cover when he observed Krause standing in a corner pointing a handgun at him. As the other Deputy Marshals took up positions around the bedroom, they again announced their identity and the fact they had a warrant for Krause’s arrest. Krause told the Marshals he had multiple guns in the bedroom and he would kill anyone who tried to enter. The Marshals tried to convince Krause to come out unarmed, but he continued to threaten to kill them, saying at one point, “let’s do this, I’m ready to die, are you?”
With an armed barricaded subject incident unfolding, the Marshals called the Redford Township Police Department for assistance. The Redford Police SWAT team responded and took up positions in the house. SWAT negotiator, Sergeant Duane Gregg, began talking to Krause from the hallway outside the open bedroom door. Negotiations continued for the next 8 hours. Krause’s response to Sergeant Gregg’s questions ranged from answering him, to remaining quiet, to screaming.
A Negotiator pin accepted by the International Hostage Negotiator Association (photo by collision.biz).
Krause was “very upset” with the Livonia Police Department, the neighboring department that had issued the warrant for his arrest, and thought the department was out to get him. Sergeant Gregg heard Krause threaten more than once to, “come out shooting because he knew how that would end.” At one point, Sergeant Gregg brought in Krause’s father and girlfriend to talk to Krause, but those conversations did not go well.
Redford SWAT Takes Action
Around 1830 hours, a pole camera revealed Krause seemed to be sleeping in the closet. With this observation the SWAT team considered entering the bedroom. The SWAT team decided on using a “flash bang,” designed to “stun . . . Krause so he would not have an idea what was going on and who was in the room with him,”. 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.”
U.S. Marines training with flash bangs (photo by imef.marines.mil).
Sergeant Lentine deployed the flash bang into the bedroom. Officer Jones crossed into the room simultaneously “with the flash bang.” Officer Butler followed with Lieutenant Gillman behind him. Officer Jones testified he saw the muzzle flash of a handgun “after the flash bang,” as Krause shot at him. Lieutenant Gillman heard shots before he entered the room, stating “one round, one shot, and then there was a short pause, and then there was some multiple rounds.” Once inside, Lieutenant Gillman saw Officer Jones sitting down “checking himself” to see if he had been shot. He also saw Krause seated in the closet with his hand on a gun. The entire exchange took “seconds.”
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. A medical examination revealed that Krause had suffered twenty gunshot wounds.
Lawsuit and Appeal for Excessive Force
Krause’s mother sued the Redford Police Department, and the officers who were on the scene for violating her son’s 4th 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 U.S. District Court granted summary judgment for department and the officers on all allegations.
Krause appealed the grant of summary judgment to the U.S. 6th Circuit Court of Appeals. On appeal, Krause argued the use of the flash-bang was excessive force, and second, shooting her son on fully automatic 20 times was excessive force.
Flash Bang Ruled Reasonable (This Time)
The Appellate Court 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 4th Amendment. The court stated:
“the 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.”
Flash Bang Ruled Unreasonable (Bing v. Whitehall)
The Court did distinguish a previous 6th Circuit case, Bing ex rel. Bing v. City of Whitehall, Ohio, in which a man had shot at a group of children near his house. He then barricaded himself in his house. The police attempted to negotiate with him for 2 hours, and then threw pepper spray and a flash-bang through a window of his house. When they did this, Bing shot at the police officers. The police responded by throwing another flash-bang into the house. Bing’s house then caught on fire and Bing died.
Photo by freestockphotos.biz
So Bing had committed the following felonies:
- Shooting at children (felony assault, attempted murder)
- Barricading himself in his house (felony resisting arrest)
- Shooting at police (felony assault, attempted murder of police officers)
Ultimately, the Bing case for excessive force went before the 6th Circuit Court of Appeals. The decision of the 6th Circuit in the Bing case is not only troubling, it is almost unfathomable!
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.”
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.
… are you kidding?! “A mortal and unnecessary threat to Bing”??!!
Bing attempted to shoot children … CHILDREN! He then barricades himself in his house, resists arrest, and then shoots at police officers who attempt to use a flash bang and pepper spray to get him to surrender! The 6th Circuit even acknowledges the first deployment was perfectly O.K. for the aforementioned heinous crimes and threats Bing posed.
However – once that first deployment occurred the officers learned there were accelerants near Krause, so deploying the 2nd flash bang was unconstitutional! So a guy shoots at children, resists arrest with force, and shoots at police officers. He continues to be a deadly threat to police and community. But because the officers put a flash bang near Bing, who was near accelerants, and those caught fire burning Kraus’s house and him in it, the action becomes unreasonable??? WOW!
Yet if the officers had shot Bing in the face multiple times, killing him, that would have been reasonable, under the circumstances, in the context of 4th Amendment restrictions. Amazing! Shoot him, yes. Burn him, no-no.
Bing Not Applicable to Kraus
The 6th 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 4th Amendment.
Shooting Kraus With Automatic Fire Ruled Reasonable
Next, the 6th Circuit examined whether it was unreasonable for the officer to shoot Krause 20 times with his weapon on automatic mode. 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.
In essence, the Court ruled, that within the short time frame, Officer Jones shot Kraus, his use of automatic fire as deadly force was reasonable. The time frame of force (even automatic fire) is a pivotal point here, as the lethal force was used in a very short span of time from the lethal threat (shot from Kraus) was realized.
Shooting Kraus 20 Times Ruled Reasonable
The Court then addressed whether it was reasonable for the officer to shoot Krause 20 times on automatic mode. The court stated:
The 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. If 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.
The number of shots fired at or into a lethal threat suspect can be extremely pivotal in determining reasonable use of force. This has been shown to be apparent in the recent charging of a Chicago police officer for Murder 1st Degree, after shooting a PCP-influenced knife-wielding youth 14 times. I have no doubt that the initial shots will be ruled reasonable. However, several of the shots occurred after the suspect had fallen to the ground (less of a threat), and those may very well be ruled to be unreasonable. I do not think (based upon the evidence known now) that the Chicago officer will be convicted of murder, but his additional shots may very likely result in him violating the suspect’s Constitutional rights. So readers are cautioned about reading too much into the number of rounds fired, without considering the time frame, threat level being faced, and the effectiveness of those shots.
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 4th 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?” The U.S. 6th Circuit Court of Appeals answered this affirmatively.
Therefore, the 6th Circuit affirmed summary judgment for the officers and the police department.
Flash Sound Diversionary Devices (FSDD)
The National Tactical Officer’s Association (NTOA) changed the accepted term for “flash bangs” several years ago. Previously these devices were known as NFDD – Noise Flash Diversionary Devices. The problem arose when evaluating how OHSA, and NIH evaluate “noise” in relation to harmful encounters with American workers. A simple word, “noise”, took on a much deeper legal meaning, and was a stimulus for legal action against police forces.
NTOA is the premier tactical officers association.
Noise is a regulated event, and too much noise is proven to be harmful to human hearing. Since the “flash bangs” create a sound that is below the minimum threshold for permanent hearing damage, and that sound occurs in a portion of a second (duration of noise is a factor), the NTOA determined police agencies should refer to “flash bangs” as Flash “Sound” Diversionary Devices (FSDD).
The use of diversionary tactics has been a part of military tactics for thousands of years. As modern police forces came into existence their roles and duties have expanded to meet the increased threats from society’s miscreants. Many have attributed the start of S.W.A.T. (Special Weapons and Tactics) teams to the early 1960’s, with Philadelphia and Los Angeles being the most famous to do so.
However, police departments have had “specialized” units to conduct non-typical patrol work since at least the 1920’s when Prohibition was in force. Many of the major cities had specialized units for raiding speak-easies, underground bars, liquor warehouses, and transportation hubs. These units had armored vehicles with rams, sledgehammers, Tommy guns, axes, and most of the “specialized” equipment of the day.
It wasn’t until nearly the 1980’s that modern police forces began to use specific noise/sound diversionary devices. At the time it was determined that if a suspect could be overwhelmed with stimuli that officers could move in and take them into custody with minimal force. To accomplish this task, LAPD modified a military grenade simulator to a device that police could use. The purpose was to provide an incredibly bright light “flash”, along with a loud “bang” to distract and disorient suspects. Thus the “flash bang” was born.
This was a time where tactical teams were primarily using a “dynamic entry” into residences or structures for the purpose of serving arrest and search warrants. In Los Angeles, this often involved serving warrants on violent felons, gang members, and persons wanted on serious felonies. These are people who do not want to go to jail or prison, and who often fight back.
The use of flash bangs had notable success in the early years, but as time went on suspects knew what was coming. The element of surprise was greatly reduced, and the continued use of “dynamic entry” became unjustified in all but hostage rescue situations. That philosophy holds true with the NTOA and IACP long-held Priority of Life standard:
- Hostages and Victims
- Innocent By-standers
- Police and First Responders
- Suspects and Subjects.
To continue to select dynamic entry methods on search or arrest warrants, places the value of apprehending the suspect (#4) above the value of the lives of the police officers (#3). That math just doesn’t add up!