                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 14a0221p.06

                         UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 SANDRA KRAUSE, individually and as personal                     ┐
 representative of the Estate of Matthew Thomas                  │
 Krause, deceased,                                               │
                                                                 │         No. 13-2498
                                Plaintiff-Appellant,
                                                                 │
                                                                  >
                                                                 │
            v.
                                                                 │
                                                                 │
 BRIAN D. JONES; ERIC GILLMAN; DWAYNE GREGG;                     │
 REDFORD    POLICE     DEPARTMENT;    REDFORD                    │
 TOWNSHIP,                                                       │
                           Defendants-Appellees.                 │
                                                                 ┘
                               Appeal from the United States District Court
                              for the Eastern District of Michigan at Detroit.
                        No. 2:12-cv-10265—Bernard A. Friedman, District Judge.
                                           Argued: June 25, 2014
                                  Decided and Filed: September 3, 2014

                 Before: SUTTON and COOK, Circuit Judges; MARBLEY, District Judge.*

                                            _________________

                                                 COUNSEL

ARGUED: Timothy P. Flynn, KARLSTROM COONEY, LLP, Clarkston, Michigan, for
Appellant. Karen M. Daley, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., Livonia,
Michigan, for Appellees. ON BRIEF: Timothy P. Flynn, KARLSTROM COONEY, LLP,
Clarkston, Michigan, for Appellant. Karen M. Daley, CUMMINGS, MCCLOREY, DAVIS &
ACHO, P.L.C., Livonia, Michigan, for Appellees.




        *
         The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.




                                                        1
No. 13-2498                     Krause v. Jones et al.                                     Page 2

       SUTTON, J., delivered the opinion of the court, in which COOK, J., joined, and
MARBLEY, D.J., joined in part and in the result. MARBLEY, D.J. (pp. 10–13), delivered a
separate opinion concurring in part and in the judgment.

                                       _________________

                                            OPINION
                                       _________________

       SUTTON, Circuit Judge. When law enforcement officers tried to execute a warrant for
his arrest, Matthew Krause fled into his home and holed up in a bedroom closet armed with a
gun. After negotiating for hours, the officers decided to enter the bedroom, using something
called a “flash bang” in the process. In the seconds that followed, Krause fired a shot at the
officers, and one of the officers fatally shot Krause in response. At issue is whether the officers
used excessive force when entering the bedroom and in shooting Krause. We affirm the district
court’s grant of qualified immunity to the officers.

                                                 I.

       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).
No. 13-2498                     Krause v. Jones et al.                                      Page 3

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
No. 13-2498                    Krause v. Jones et al.                                      Page 4

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.

        Matthew’s mother sued Sergeant Gregg, Lieutenant Gillman, Officer Jones, the Redford
Police Department and Redford Township. Her complaint claimed, as relevant here, that the
officers violated Krause’s Fourth (and Fourteenth) Amendment rights by using a flash bang and
by shooting Krause, and that their actions independently amounted to gross negligence under
state law. The district court granted the defendants’ motion for summary judgment on all claims
on qualified-immunity grounds.

                                                II.

        Qualified immunity shields officers from section 1983 constitutional torts so long as the
officers did not violate the clearly established constitutional rights of the claimant. See Pearson
v. Callahan, 555 U.S. 223, 231 (2009). In assessing that immunity at the summary-judgment
phase of the case, we give the plaintiff the benefit of all reasonable factual inferences from the
record, asking only whether the officers are entitled to judgment as a matter of law. Fed. R. Civ.
P. 56. Qualified immunity protects the officers in this instance.

        Use of the flash bang. There are several problems with Krause’s claim that the officers
violated her son’s Fourth Amendment rights when they used a flash bang before entering the
room.    The complaint as an initial matter does not identify any way in which the device
improperly seized or otherwise harmed him. And neither the appellate briefs nor oral argument
fill this gap.

        Even if that were not the case, 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,
No. 13-2498                    Krause v. Jones et al.                                       Page 5

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.

       All of these increases in officer safety came with little downside, including the kinds of
downsides that have led other courts to be skeptical of the use of a flash bang or to find it
unreasonable. The suspect was isolated in one room, precluding the risk that the flash bang
could harm others, including children, the elderly or others in the wrong place at the wrong time.
See Boyd v. Benton Cnty., 374 F.3d 773, 779 (9th Cir. 2004); United States v. Myers, 106 F.3d
936, 940 (10th Cir. 1997). The officers had a clear view into the bedroom and closet, allowing
them to ignite the flash bang away from the closet and not on Krause. See Estate of Escobedo v.
Martin, 702 F.3d 388, 407–08 (7th Cir. 2012). Nothing indicated that Krause had other health
problems that could be triggered by the device. See Estate of Smith v. Marasco, 430 F.3d 140,
151 (3d Cir. 2005). And nothing indicated that the condition of the room could create other
problems if a flash bang were ignited. See Bing ex rel. Bing v. City of Whitehall, Ohio, 456 F.3d
555 (6th Cir. 2006).

       Bing illustrates the two sides of the line.      The police responded to a report of an
intoxicated man, Bing, who had shot at a group of children on his street. After unsuccessfully
trying to persuade Bing to leave his house for two hours, the police threw pepper spray and a
flash bang into a window. Bing then shot at the police, who threw another flash bang into the
house. The house caught fire, and Bing died inside. Id. at 558–63. We held that the officers
acted reasonably in using the first flash bang to try to force Bing out of his house. The officers
needed “to disarm Bing and place him under arrest to abate the threat that he posed to people in
the area.” Id. at 570. Yet the second flash bang crossed the reasonableness line because the
officers had “full knowledge that it [would] likely ignite accelerants and cause a fire” and thus
created a “mortal,” and unnecessary, “threat” to the suspect. Id. (internal quotation marks
omitted). In this instance, no comparable safety concerns cloud the record.

       When put under the microscope of hindsight, it is true, the encounter did not end well.
But it is difficult to say that the flash bang, even from the perspective of hindsight, had anything
to do with it. At all events, we judge reasonableness “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
No. 13-2498                     Krause v. Jones et al.                                         Page 6

From that vantage point, the officers acted reasonably. See also Graves v. Bowles, 419 F. App’x
640, 643–44 (6th Cir. 2011) (finding the use of a flash bang outside of a suspect’s car reasonable
where officers had “reason to believe that Graves might be dangerous when they tried to arrest
him”); Dawkins, 83 F. App’x at 51 (“[T]he officers’ use of the flash-bang diversionary device
[was] objectively reasonable” in executing a search warrant at the apartment of a man with a
prior conviction for facilitating a murder and who likely possessed an assault rifle.).

       Because the officers complied with the Fourth Amendment in using the flash bang, it
follows that they did not violate any clearly established law in doing so. Even Bing, which found
a constitutional violation with the second use of the flash bang, determined that the officers did
not violate clearly established law.

       Fatal shooting. The officers’ use of deadly force—shooting Krause—also did not violate
his Fourth Amendment rights. 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. 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”).

       The claimant offers several rejoinders to this conclusion. She suggests that Krause may
have been asleep with his hand on the trigger of the gun and might have fired accidentally when
the flash bang jolted him awake. Yet Krause’s intent, or lack of intent, in firing the gun has no
No. 13-2498                      Krause v. Jones et al.                                         Page 7

role to play. We judge Officer Jones’ reasonableness “from the perspective of a reasonable
officer on the scene,” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (internal quotations
omitted), and a reasonable officer in his shoes would have no way of knowing whether Krause
fired his gun intentionally or accidentally—and would not be required to wait for a second shot
to see.

          She adds that her expert questioned whether Krause fired his gun at all.            But this
argument lacks any support in the record. She never identified any such expert, and a search of
the record does not turn up a report or deposition of any expert. At argument, she elaborated that
a coroner from another county performed a second autopsy on Krause and did not find any
gunpowder residue on his hands. But this autopsy was performed after Krause was embalmed,
precluding any reasonable inference that Krause did not fire the first shot and explaining why the
report itself nowhere concludes that Krause did not fire at Officer Jones.

          Even if Officer Jones had the right to use deadly force in self-defense, she questions the
use of so much force—twenty rounds in all. But, so far as the record shows, 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. “[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.” Id. at 2022.

          Plaintiff asks, last of all, why the officers opted to enter the bedroom instead of waiting
for Krause to exit on his own. But the officers did try waiting—ten hours in all devoted to trying
to coax Krause out of the bedroom. This was not an impulsive entry. At any rate, “the police
need not have taken that chance and hoped for the best.” Scott v. Harris, 550 U.S. 372, 385
(2007). Keep in mind that Krause never backed off his suicidal threat during the stand-off to
emerge with guns firing. The assumption that waiting carried no risks of its own is belied by the
reality that, so far as they knew, Krause could have emerged at any point and acted on this threat
to “come out shooting” or could have taken his own life during the delay.                 That is why
continuing to wait was not, as the claimant suggests, a risk-free option. The officers reasonably
waited until Krause fell asleep and opted to act then. No doubt, the plan did not end well,
No. 13-2498                    Krause v. Jones et al.                                      Page 8

leaving us with the seen consequences of the officers’ actions (the regrettable death of a child
and brother) and the unseen possibilities of what might have been (perhaps no death at all). Yet
when the Supreme Court warns lower courts not to judge the reasonableness of an officer’s
action from the peace and safety of their chambers “with the 20/20 vision of hindsight,” Graham,
490 U.S. at 396, this is what they mean. The question for us is: Did the officers act reasonably
based on what they knew at the time? The answer on this record is: Yes.

       The concurrence questions the officers’ decision to enter the bedroom with their weapons
set to fire automatically. But it is not clear why. Krause had shown no concern for his own
safety or that of others and had threatened many times to shoot the officers if they entered. Once
Krause delivered on his threat and fired at Officer Jones, all agree that Officer Jones could
reasonably fire back and could keep firing “until the threat [was] over.” Plumhoff, 134 S. Ct. at
2022. And all agree that nothing in the record suggests that Officer Jones kept firing even after
he knew Krause no longer posed a threat. If it is true that officers may fire “15 shots” in a “10-
second span” when the suspect is not even shooting at the officers, as Plumhoff allowed, id., it
must be true that officers may return fire with an automatic weapon when they are being fired
upon. Indeed, Krause does not argue that, accepting that Krause shot at Office Jones, Officer
Jones could not respond with shots from an automatic weapon. Not one of the cases cited by the
concurrence contradicts this rule.

       The concurrence adds that “There was no need for Matthew Krause to die.” We agree
and have considerable sympathy for his family. But as the record confirms, the reason Matthew
Krause died was that he fired first. Officer Jones had every right in such a dangerous situation,
proved dangerous the minute he entered the room, to engage the automatic-fire function on his
gun before entering the room and to use it after entering the room and being fired upon. The
plaintiffs offer no evidence, case law, custom or anything else that says otherwise.

       That leaves one loose end. The complaint raised a state law gross negligence claim. It
did not explain the basis for that claim. The response to the defendants’ summary judgment
motion did not either. See R.17 at 19 (mentioning the phrase “gross negligence” but referencing
excessive force cases). Nor did the motion for reconsideration mention the claim. See R.21 at 4.
The district court could have treated this undeveloped claim as a forfeited one. See Brown v.
No. 13-2498                    Krause v. Jones et al.                                  Page 9

United States, 545 F. App’x 435, 437–38 (6th Cir. 2013). It instead, generously we think,
assumed the gross negligence claim was based on the same conduct—the flash bang and
shooting—as the excessive force claim. R.19 at 8. For the reasons just given, the decisions to
use a flash bang and to shoot Krause were reasonable, not “reckless,” Mich. Comp. Laws
§ 691.1407(8)(a), and so do not amount to gross negligence.

       For these reasons, we affirm the district court’s judgment.
No. 13-2498                     Krause v. Jones et al.                                   Page 10

               ______________________________________________________

                    CONCURRING IN PART AND IN THE JUDGMENT
               ______________________________________________________

        MARBLEY, District Judge, concurring in part and concurring in the judgment.

        I concur in the court’s holding that the officer’s use of deadly force in this case, where
Krause fired first, did not violate Krause’s Fourth Amendment rights. An officer in the position
of Officer Jones, who had heard Krause’s threats, knew that he was armed, and saw the muzzle
flash of Krause’s gun, reasonably could determine that Krause posed a serious threat to him and
to other officers, and that the threat must be neutralized.

        I write separately, however, to express my disagreement with the court’s conclusion that
it was reasonable for Officer Jones to shoot Krause twenty times. See R. 17-6 at 4-14. The
majority flatly announces that the number of rounds fired by Jones “flow[ed] from the reasonable
decision” of the officer to engage the automatic-fire function of his weapon. Supra at 7; I find
such a decision to be neither reasonable nor inevitable. The majority notes that, if an officer is
justified in firing, he may continue to fire until the threat has ended. See Plumhoff v. Rickard,
134 S. Ct. 2012, 2022 (2014). But this analysis ignores any consideration of the decisions—and
the reasonableness thereof—made by police in the run-up to their entrance. Indeed, the majority
has no trouble concluding that, after waiting ten hours for Krause to exit his house, waiting a
minute longer was unnecessary. True, the majority concedes, “the plan did not end well.” Supra
at 7. But the majority appears to sanction the officers’ conduct in arriving with blood and
thunder, detonating a flash bang despite the fact that Krause was sleeping, and pre-engaging the
automatic-fire modes on their weapons, thereby ensuring that a single trigger pull would result in
a fusillade.

        Claims against officers for use of excessive force during a stop or arrest are properly
analyzed in keeping with “the Fourth Amendment’s prohibition against unreasonable seizures of
the person,” wherein the “reasonableness” of a particular seizure “depends not only on when it is
made, but also on how it is carried out.” Graham v. Connor, 490 U.S. 386, 395 (1989)
(emphasis in original). This determination requires “a careful balancing of ‘the nature and
No. 13-2498                     Krause v. Jones et al.                                     Page 11

quality of the intrusion on the individual’s Fourth Amendment interests’ against the
countervailing governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471
U.S. 1, 8 (1985)). Of course, the “reasonableness” inquiry must be judged objectively, from the
perspective of a reasonable officer at the scene, not based on hindsight, and must allow for “the
fact that police officers are often forced to make split-second judgments.” Id. at 397.

       But I struggle to understand why the majority’s analysis is bereft of any examination into
the officers decisions not to wait longer, or to leave Krause asleep while apprehending him, or at
minimum to shoot merely in order to incapacitate, rather than to destroy. Compare Baker v. City
of Hamilton, Ohio, 471 F.3d 601, 607 (6th Cir. 2006) (“We have held repeatedly that the use of
force after a suspect has been incapacitated or neutralized is excessive as a matter of law.”). The
case sub judice is unlike Plumhoff, where a fleeing, reckless motorist “never abandoned his
attempt to flee” during the 10-second span when police shot him 15 times. 134 S. Ct. at 2022.
Here, Krause—who was admittedly armed with a gun and seemingly eager to die—started
awake, fired once, and died in a hail of 20 bullets.

       Once Krause fired, it is clear that the officer’s decision to return fire was reasonable. But
surely this court is able to question also the pre-shooting conduct by law enforcement. See, e.g.,
Claybrook v. Birchwell, 274 F.3d 1098, 1105 (6th Cir. 2001) (considering earlier shooting in
assessing the reasonableness of officer’s ultimate use of fatal force); see also Terebesi v.
Torreso, No. 12-3867, 2014 WL 4099309, at *11-12 (2d Cir. Aug. 21, 2014) (“Our case law thus
clearly establishes that planners may be liable under section 1983 to the extent that a plan for a
search or seizure, as formulated and approved by those defendants, provides for and results in an
unconstitutionally excessive use of force.”); Young v. City of Providence ex rel. Napolitano, 404
F.3d 4, 22 (1st Cir. 2005) (“[O]nce it is clear that a seizure has occurred, the court should
examine the actions of the government officials leading up to the seizure.”) (quotation omitted);
Abraham v. Raso, 183 F.3d 279, 291-92 (3d Cir. 1999) (disagreeing with “those courts which
have held that analysis of ‘reasonableness’ under the Fourth Amendment requires excluding any
evidence of events preceding the actual ‘seizure.’”); Billington v. Smith, 292 F.3d 1177, 1188
(9th Cir. 2002) (Police “could be held liable for shooting the [suspect] – even though they
reasonably shot him at the moment of the shooting – because they used excessive force in
No. 13-2498                    Krause v. Jones et al.                                     Page 12

creating the situation which caused [the man] to take the actions he did.”) (quotation omitted);
Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1189 (10th Cir. 2001) (The “totality of
the circumstances surrounding a seizure embraces conduct immediately connected with the
seizure, such as police conduct arguably creating the need for force where use of excessive force
has been alleged.”) (quotations omitted); Bella v. Chamberlain, 24 F.3d 1251, 1256 (10th Cir.
1994) (“Obviously, events immediately connected with the actual seizure are taken into account
in determining whether the seizure is reasonable.”); but see Waller v. City of Danville, 212 F.
App’x 162, 171 (4th Cir. 2006) (“Although circuits differ on the question of how pre-shooting
conduct should be weighed in an excessive force case, this circuit has repeatedly held that such
conduct is generally not relevant and is inadmissible.”).

       If officers had decided, for example, to carry with them a grenade launcher, or call down
a strike from a Predator drone, or take other actions which recklessly created excessive risk, this
court would be justified in asking whether officers acted unreasonably in their preparations.
Compare Bing ex rel. Bing v. City of Whitehall, Ohio, 456 F.3d 555, 570 (6th Cir. 2006) (Even
“if the police had a great enough interest to use deadly force against [defendant], it does not
follow that they may do so in any way they desire, say, by burning down his house rather than
shooting at him.”). It is equally appropriate that we inquire why officers were justified in
entering with their weapons set to fully-automatic fire. I cannot accept the blind conclusion that
this action was reasonable.

       What is more, it is deeply troubling to see that, before launching their raid against the
sleeping Krause, police considered other options, including the truly outrageous possibility of
“using the SWAT team’s tank to bring down the exterior wall of the bedroom and to seize
Krause in that way.” Supra at 3. This deliberation is disturbing not for the fact that police opted
for a different choice, but because such a shockingly militarized option was even a consideration
in the apprehension of a low-level drug dealer. In comparison, the officers’ choice merely to use
fully-automatic rifles, riot shields, and flash-bang grenades seems almost reserved. But it is
precisely this sort of jurisprudential creep which must be resisted at all costs; indeed, as the
Supreme Court long ago warned, “[i]t is the duty of courts to be watchful for the constitutional
No. 13-2498                          Krause v. Jones et al.                                                 Page 13

rights of the citizen, and against any stealthy encroachments thereon. Their motto should be
obsta principiis [‘resist the beginnings’].” Boyd v. United States, 116 U.S. 616, 635 (1886).1

         The doctrine of qualified immunity serves the importance purpose of “protect[ing] the
State and its officials from overenforcement of federal rights,” Johnson v. Frankell, 520 U.S.
911, 919 (1997), allowing “officials [to] act without fear of harassing litigation,” Davis v.
Scherer, 468 U.S. 183, 195 (1984). But we must not lose sight of the fact that, “[w]here an
official could be expected to know that certain conduct would violate statutory or constitutional
rights, he should be made to hesitate.”               Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)
(emphasis supplied). This court cannot condemn the actions of officers “from the peace and
safety of [our] chambers with the 20/20 vision of hindsight.” Supra at 8 (quotation omitted).
But it is equally incumbent on us, in discharging our duty to “say what the law is,” that we craft a
jurisprudence that will empower officers to eliminate a threat while still encouraging them to
preserve life. See Garner, 471 U.S. at 10-11 (“The use of deadly force is a self-defeating way of
apprehending a suspect”; “[i]t is not better that all felony suspects die than that they escape.
Where the suspect poses no immediate threat to the officer and no threat to others, the harm
resulting from failing to apprehend him does not justify the use of deadly force to do so.”).

         There was no need for Matthew Krause to die. Despite his threats that he might “come
out shooting,” as officers prepared to enter his bedroom he was asleep, posing a danger to no
one. In facing such a suspect, police must do more than merely select from an array of deadly
options that threaten an unreasonable risk of death—at least when safer, simpler options remain.
It is not our duty to second-guess law enforcement. But is emphatically our duty to ensure that
the law reflects our society’s commitment to saving lives, not meaninglessly taking them.

         For these reasons, I respectfully concur in part and concur in the judgment.



         1
           Police action that today is borderline—but ultimately immunized—will tomorrow be “clearly established”
and shielded beyond dispute. As one commentator has recognized in a related context, “[a] ‘steady drumbeat’ of
[Fourth Amendment] violations that will not be subject to [the exclusionary rule] will become more and more
accepted—not as technical violations—but as accepted behavior. . . . [W]hat will be considered egregious enough to
justify exclusion will also be influenced, resulting in increasingly diminished respect for the right to be secure over
time.” Thomas K. Clancy, The Fourth Amendment’s Exclusionary Rule as a Constitutional Right, 10 OHIO ST. J.
CRIM. L. 357, 383 (2013) (footnote omitted).
