                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                     File Name: 06a0270p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                        X
                                                         -
 ESTATE OF WILLIAM J. BING, through its
                                                         -
 Administrator Thomas E. Bing; BRIAN BING,
                                                         -
 through Administrator Thomas E. Bing,
                                 Plaintiffs-Appellees, -
                                                             No. 05-3889

                                                         ,
                                                          >
           v.                                            -
                                                         -
                                                         -
                                                         -
 CITY OF WHITEHALL, OHIO; WHITEHALL POLICE

                                          Defendants, -
 DEPARTMENT,
                                                         -
                                                         -
 MARK SHOWALTER, et al.,                                 -
                              Defendants-Appellants. -
                                                         -
                                                        N
                         Appeal from the United States District Court
                        for the Southern District of Ohio at Columbus.
                     No. 03-00510—Algenon L. Marbley, District Judge.
                                   Argued: April 27, 2006
                             Decided and Filed: August 1, 2006
             Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.
                                     _________________
                                         COUNSEL
ARGUED: Mark D. Landes, ISAAC, BRANT, LEDMAN & TEETOR, Columbus, Ohio, for
Appellants. Linda Leah Reibel, Worthington, Ohio, for Appellees. ON BRIEF: Mark D. Landes,
Jeffrey A. Stankunas, ISAAC, BRANT, LEDMAN & TEETOR, Columbus, Ohio, for Appellants.
Linda Leah Reibel, Worthington, Ohio, for Appellees.
     ROGERS, J., delivered the opinion of the court in which, SUHRHEINRICH, J., joined.
GILMAN, J. (pp. 15-16), delivered a separate concurring opinion.
                                     _________________
                                         OPINION
                                     _________________
        ROGERS, Circuit Judge. This is an interlocutory appeal seeking reversal of the district
court’s summary judgment order denying qualified immunity to the defendant police officers. We
reverse in part and affirm in part.

                                               1
No. 05-3889               Estate of William J. Bing, et al. v.                                               Page 2
                          City of Whitehall, Ohio, et al.


        On the evening in question, decedent William Bing fired a gun into the air and into the
ground near his home, which prompted witnesses to telephone the Whitehall police. Upon arriving
at the scene, the police learned from witnesses that Bing had retreated into his home. The police,
backed up by the S.W.A.T. team, surrounded Bing’s house, attempted to communicate with Bing,
and subsequently tried to force him outside using pepper gas. Eventually, the S.W.A.T. team
invaded the house and killed Bing. During the raid, the police employed a flashbang device that
burned the house down.
        Bing’s estate and his brother Brian brought this suit under the Fourth and Fourteenth
Amendments, 42 U.S.C. §§ 1983, 1986, 1988, and state law against the City of Whitehall, the police
department, and various individual police officers. The claims relevant to this interlocutory appeal
allege that the police officers violated Bing’s clearly established rights when they entered his home
without a warrant, used excessive force by employing pepper gas and flashbang devices,
unreasonably used deadly force when they shot and killed him, and unreasonably destroyed property
when they burned down the house. The district court denied the officers’ motion for summary
judgment on the basis of qualified immunity because genuine issues of material fact exist and
require that a trial be held. This interlocutory appeal followed.
        We reverse in part. The officers lawfully effected a de facto house arrest of Bing when they
surrounded his house, despite not obtaining a warrant, because Bing’s firing of shots in the
neighborhood, among other circumstances, created a dangerous exigency. For the same reason, the
police did not need to obtain a warrant before entering the house. Moreover, the police reasonably
employed pepper gas and a flashbang device in their attempt to force him outside. Assuming that
the police’s use of a second flashbang device that set Bing’s house on fire violated his constitutional
right to be free from excessive force, the right in this context was not “clearly established.”
However, the district court properly denied summary judgment with respect to the claim of deadly
force with regard to the shooting of Bing. If, as the district court posited, Bing was unarmed after
the police entered the home and did not threaten them in any manner as they approached, the officers
violated his clearly established right not to be attacked with deadly force. The officers, therefore,
enjoy no immunity from the police-shooting deadly force claim, and summary judgment was
properly denied as to that claim.
                                                          I.
         On October 14, 2002, sometime in the evening, William Bing fired his gun into the ground
and into the air to frighten away from his property a group of minors who had been taunting him.
Around 6:30 p.m., Whitehall police arrived in Bing’s neighborhood, responding to reports of shots
fired in the neighborhood. The initial report, as heard over the police radio, said that a juvenile
wearing red clothing had fired a weapon. The police went to Bing’s neighborhood to investigate.
People in the street, including a group of juveniles, directed Officers Salyers and Adkins to Bing’s
house. A crowd was gathered in front of Bing’s house. The people in the street told the police that
the reported gunman was inside the house and armed. The minors in the street reported to Detective
Grebb that Bing had shot at them. Other neighbors called the police to complain about Bing after
the initial report of shots fired.
        The officers set up a perimeter around Bing’s house within minutes. The people in the street
informed Officer Salyers 1that the reported gunman appeared intoxicated and that he had come out
of the house, fired a shot, and returned into the house. Officer Salyers subsequently retrieved his
shotgun from his police car “[f]or protection” and took up a position nearby. Officer Salyers took


       1
           According to the complaint, however, Bing fired two shots, one into the air and another into the ground.
No. 05-3889           Estate of William J. Bing, et al. v.                                      Page 3
                      City of Whitehall, Ohio, et al.


out his shotgun, he said in his deposition, because he felt that his life was potentially in danger,
given the report of shots fired.
        Fearing for the community’s safety, the police instructed Bing’s neighbors to evacuate their
homes, but the neighbors refused. The presence of the neighbors increased the police’s level of
concern. In an attempt to contact Bing, the police had the police dispatcher call Bing’s telephone.
The initial attempt at making contact with Bing via phone was meant, according to one policeman,
to get “him to come out of the residence so we could talk about what happened.” Bing’s phone line
was busy.
        Around the same time, the police checked to see if they had been to Bing’s residence before.
The officers learned that police had been called to Bing’s residence in the past and that he had fired
shots in the past. Officer Salyers in his deposition said of this new information: “It definitely
change[d] the assessment. It [told] us that there [were] definitely weapons in the house and that
[Bing] has used them in the past.” The perceived danger of the situation prompted the officers to
decide not to go in immediately, according to Officer Salyers. “That’s common sense. You don’t
go running into a house where somebody’s shooting.”
        Through the windows, Officer Salyers could see Bing moving from room to room. Officer
Salyers yelled at Bing to leave his gun in the house and walk out to the driveway with his hands in
the air. Bing ignored Officer Salyers, but Salyers continued for about twenty minutes to shout his
demand that Bing surrender. According to the officers’ depositions, it was their intent to arrest Bing
the moment he came out of his house. When Bing refused to come out, Sgt. Allen decided that they
would have to take more extraordinary measures: he called in the S.W.A.T. team.
       The S.W.A.T. team arrived at the scene, according to Sgt. Brandeberry, its commander, at
approximately 7:30 p.m., about an hour after the first officers arrived. Officer Salyers left the scene,
changed into his S.W.A.T. gear, and returned before 8:30 p.m. Approximately eleven team members
ultimately responded. The S.W.A.T. team set up a command center about nine houses up from
Bing’s residence. Sgt. Brandeberry remained at the command center with the hostage negotiators,
Lieutenant Zitsky, Hostage Negotiator Forbes, and Officer Showalter.
        In his deposition, Sgt. Brandeberry stated that the “first thing” he did upon arriving at the
command center was “[a]ttempt[] to gather intelligence from the perimeter patrol officers as to what
they had, what had transpired thus far.” The perimeter officers, apparently not relying on the initial
police radio report, told Brandeberry that Bing had fired his weapon “at” neighborhood children.
Sgt. Brandeberry also stated that he believed, from the moment of his arrival, that exigent
circumstances made it unnecessary to seek a warrant. “[An] [a]rrest would certainly have been made
had [Bing] made himself present for it.” Sgt. Brandeberry said that he felt that there was a
“possibility” of immediate danger to the people outside Bing’s house. Bing “had show[n] his
propensity to willfully shoot at individuals,” he explained. The plaintiffs’ lawyer and
Sgt. Brandeberry had the following exchange during his deposition:
       Q.      . . . we’re talking about maybe three and a half hours. In that period did you
               see any danger to others?
       A.      There is always that danger to others. He is an armed individual who has
               already fired shots at individuals.
       Q.      In this three and a half hour period that we’re talking about what was your
               plan for Mr. Bing?
No. 05-3889           Estate of William J. Bing, et al. v.                                      Page 4
                      City of Whitehall, Ohio, et al.


       A.      It was my hope[] that he would either pick up the phone and talk to us or
               eventually the gas would bring him out or he may give up of his own
               volition.
       Q.       So the plan was to arrest him.
       A.       Yes, ma’am.
       Q.      Based on the shot or shots fired, based on the original report the shots had
               been fired.
       A.       Correct.
        At about 8:43 p.m., the police broke one of Bing’s windows with a special tool and threw
into the house a “bag phone,” a portable communication device with a microphone and a secure line
between two receivers. The police rang the phone many times but Bing did not answer.
       Around 8:54 p.m., Bing remained holed up and incommunicado, so the police decided to
increase the pressure on him to leave the house by firing pepper gas into the house through the
windows. The police proceeded to break the windows in Bing’s house and fire six canisters of
pepper gas into the residence.
        Around 9:02 p.m., the police heard Bing coughing and gagging on the bag phone
microphone. After the coughing, Bing came out the side door into the driveway under the carport.
Bing retreated into the house and closed his door, however, when the officers approached him to
effect an arrest. The police fired at least two more series of six gas canisters each, but the gas never
forced Bing out of his house.
        Between 9:30 p.m. and 9:45 p.m., Richard Finton, Bing’s friend and Alcoholics Anonymous
sponsor, tried to speak with Bing through a police cruiser’s public-announcement system. Finton
told Sgt. Brandeberry in private that Bing “was an alcoholic” who had been on a three- or four-day
drinking binge, “that he had more than likely consumed narcotics of some sort, [and] that it was a
possibility he was huffing some sort of inhalant.” Finton also said that there was no chance that
Bing would pass out, and that he had “several weapons in the house.”
        Sometime after using the first series of gas canisters, Sgt. Martin, a S.W.A.T. team leader,
authorized the removal of Bing’s door with a battering ram. Removing the front door permitted the
police to shine a spotlight into the house so that they could see better what was happening inside.
Around 10:20 p.m., Sgt. Brandeberry authorized the use of a flashbang device. Detective Grebb
then used the flashbang near the bedroom window.
        Bing allegedly responded to this first flashbang by firing a shot that the officers heard
clearly. According to the officers, they did not know whether Bing had shot himself, at random, or
at them. They consequently did not raid the house immediately but instead reinserted the bag phone
at about 11:05 p.m., this time in the bedroom, after having removed it for a time. While reinserting
the bag phone, Officer Salyers claims that he saw a bullet hole near the window and surmised from
this fact that Bing had shot at them. Detective Grebb also saw the hole and surmised that Bing had
shot at the officers.
       After concluding that Bing had shot at them, the police decided to enter the house. A little
before 11:20 p.m., the S.W.A.T. team raided Bing’s house. Detective Grebb in his deposition
explained the decision to raid the house as follows:
No. 05-3889           Estate of William J. Bing, et al. v.                                      Page 5
                      City of Whitehall, Ohio, et al.


       Q:      Did you talk to Sergeant Brandeberry at all about why you couldn’t have just
               outwaited [Bing], maybe sat there all night?
       A:      We would have done that had he not shot through the wall at the officers.
               ....
               As I explained, had he not been creating an immediate threat to the people of
               the neighborhood and outside of the house, he could have stayed in there all
               night. Once he started shooting, it changed the circumstances; and we
               reacted to what he did.
During the raid, the S.W.A.T. team members wore gas masks to protect themselves from the pepper
gas lingering in the air. The team planned to use a flashbang device to disorient Bing and thereby
provide cover to the invading officers. As a group of the officers including Sgt. Martin entered the
house, Sgt. Martin saw a “ragged” hole in a door just ahead of them. In Sgt. Martin’s telling, the
hole was roughly the size of a fist, or about “3 to 5 inches.” The hole was four-and-a-half to five
feet “up on the door,” according to Sgt. Martin. “I saw Mr. Bing look out in the hall” from the hole;
“[t]hen quickly, he stuck a gun through the hole, fired a round, withdrew the gun, took the gun back
up, fired a second round . . . .” In Officer Salyers’ telling, the officers “started taking fire.”
According to Officer Salyers, Bing shot at the police through this hole in the wall. In response, Sgt.
Martin fired his shotgun twice at the center of the door from a distance of about fifteen feet. When
Bing fired at the police, Officer Salyers saw the muzzle flash from Bing’s gun and dashed behind
a protective shield held by Officer Dickey before firing several rounds at the door’s center in
response. According to the officers, these events transpired over a span of less than two minutes.
        Upon hearing Bing’s shots at Sgt. Martin and Officer Salyers within the house, Detective
Grebb employed a flashbang device in an effort to distract Bing. The flashbang device ignited
materials in the house, which instantly caught fire. The fire spread rapidly and the fire department
arrived. But the police did not permit firefighters to enter Bing’s house immediately because,
according to the police, Bing might fire on them. Firemen entered the house only after the fire grew
more intense and it became evident that a person inside could not pose a threat to the firefighters.
One fireman found Bing’s body inside the house and moved it, but stopped attempting to move the
body after he realized that Bing was dead.
        The Franklin County coroner’s report lists the time of Bing’s death as 11:42 p.m. The report
also states that a shotgun blast to the back killed Bing. Bing also had at least one broken leg.
         The plaintiffs are Bing’s estate and his brother, Brian Bing. They brought this suit against
the City of Whitehall, the police department, and the individual officers under 42 U.S.C. §§ 1983,
1986, 1988 and state law. The district court held that the defendant officers are not immune from
suit under the doctrine of qualified immunity because a trial is needed to resolve the parties’ various
factual disputes. Regarding the plaintiffs’ § 1983 claim for warrantless entry, the district court held
that the alleged facts permitted the inference that the police violated Bing’s rights twice: first, when
they broke Bing’s windows and battered in his door; and second, when S.W.A.T. fireteams invaded
his home.
        With respect to the breaking of Bing’s windows and door, the district court held that a
rational juror could conclude that no exigency existed. The officers did not agree in their accounts
about whether Bing had shot at the neighborhood teenagers or had shot his gun while aiming at no
one in particular. This disagreement implied that a rational juror could disbelieve that Bing posed
an immediate danger, the district court observed. Detective Grebb implied in his testimony that
Bing posed no immediate threat to others when he said that the police would not have invaded his
No. 05-3889           Estate of William J. Bing, et al. v.                                     Page 6
                      City of Whitehall, Ohio, et al.


house had he not fired at them. The police, the district court also noted, did not face an exigency
because they waited about two hours before this first “entry.”
         Regarding the S.W.A.T. team’s warrantless entry into the house during the raid, the district
court held that a genuine dispute existed about whether Bing in fact shot at Detective Grebb. The
district court expressed dissatisfaction with the amount of proof supplied by the police (i.e.,
Detective Grebb’s testimony and a picture of the hole in the window frame). The district court said
that Bing’s gun “apparently contains none of Bing’s fingerprints,” and implied that the paucity of
evidence supplied by the defense should be enough to allow the issue to reach a jury because Bing
is dead and cannot rebut the police version of events, thereby causing much of this case to turn on
police credibility.
        The district court also held that genuine disputes over issues of material fact precluded
summary judgment on the plaintiffs’ § 1983 deadly force claim. The district court determined that
a jury should decide whether Bing shot at the officers first, as the officers claim. The district court
again said that the “gun allegedly used to shoot at the SWAT team did not contain Bing’s
fingerprints.” The district court also relied on a letter submitted by the plaintiffs’ expert witness,
Larry Dehus, which stated that Bing’s body positioning was inconsistent with the officers’ story and
that the autopsy report “does not indicate” when Bing’s leg was broken. The district court applied
a “heightened scrutiny of sorts.” The district court found that a genuine dispute existed in light of
“the lack of physical evidence supporting Defendants’ version of events.” The district court viewed
the issue as one of police credibility.
        The district court also held that genuinely disputed issues of material fact precluded summary
judgment on the plaintiffs’ § 1983 excessive force claims regarding the police’s use of pepper gas
and flash bangs. Whether such force was excessive depended on the severity of the initially reported
incident involving Bing’s firing of his weapon, Detective Grebb’s knowledge (or lack thereof) that
accelerants were present in the house, and whether Detective Grebb acted offensively when he threw
the second flashbang towards Bing. The district court held that a jury, not a judge, should determine
these material issues of fact.
       The district court did not rule on whether any of the constitutional rights allegedly violated
were “clearly established.”
                                                  II.
        Reviewing de novo, we reverse the district court’s order in part. The officers are immune
from suit for the breaking of Bing’s front door, the warrantless seizure of Bing via encirclement of
the house, the use of pepper gas and flashbang devices, the warrantless entry into Bing’s house, and
the destruction of Bing’s home.
        This court has jurisdiction over this appeal because a district court’s order denying qualified
immunity may be appealed immediately. See Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985). But
“a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s
summary judgment order insofar as that order determines whether or not the pretrial record sets forth
a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995). In this
interlocutory appeal this court may review only “purely” legal arguments. Smith v. Cupp, 430 F.3d
766, 772 (6th Cir. 2005). The plaintiffs bear the burden to prove that the officers are not shielded
by qualified immunity. See Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir. 1999).
No. 05-3889            Estate of William J. Bing, et al. v.                                     Page 7
                       City of Whitehall, Ohio, et al.


                                                   A.
       The police did not violate Bing’s Fourth Amendment rights when they effected a warrantless
house arrest by encircling the house and otherwise controlling his movements through the use of
pepper gas. A warrant authorizing these actions was unnecessary because Bing’s behavior created
a dangerous exigency.
         The district court saw the siege and its methods, such as the use of the pepper gas, the
breaking of the door, and the breaking of the windows, as a first set of “entries” into the home
requiring a warrant. We need not decide whether this activity constitutes “entry” for Fourth
Amendment purposes because a warrant authorizing it was just as much required, absent exigent
circumstances, on other grounds. By laying siege to Bing’s house, breaking his door and windows,
and employing pepper gas, the police accomplished a de facto house arrest, i.e., a Fourth
Amendment seizure. See Ewolski v. City of Brunswick, 287 F.3d 492, 506-07 (6th Cir. 2002). In
Ewolski this court held that the use of police coercion to exercise physical control over an armed,
barricaded suspect while he is inside his home amounts to a Fourth Amendment seizure, id., and
exactly this occurred in this case.
                                                   1.
        The police were not however required to get a warrant before completing this de facto house
arrest because Bing posed an immediate threat of serious injury to the police and the people in the
street. As we stated in Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir. 1989), exigent circumstances
exist when an immediate and serious threat to the safety of the police or the public is present. A
“person may not be arrested at home without a warrant, regardless of the existence of probable cause,
absent exigent circumstances.” United States v. Bradley, 922 F.2d 1290, 1293 (6th Cir. 1991),
overruled on other grounds by United States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir. 1993) (en
banc).
         The following facts, not held to be the subject of a genuine dispute, support the conclusion
that a dangerous exigency justified the house arrest of Bing: (1) Bing discharged a firearm near
neighborhood minors; (2) Bing continued to have access to a gun inside the house; (3) the police had
been called to Bing’s residence on previous occasions because he previously had fired shots; (4) the
police could see Bing move from room to room, demonstrating that police and bystanders were
probably within range of Bing’s gun; (5) people in the street reported that Bing appeared intoxicated,
making it reasonable to expect that he would act unstably; (6) a crowd was gathered in the street near
Bing’s house, and people in the neighborhood refused to evacuate. In other words, Bing had shown
a willingness to fire weapons in his neighborhood and could have harmed others in an instant with
little effort. Therefore, a dangerous exigency existed. As we stated in Causey v. City of Bay City,
442 F.3d 524, 529 (6th Cir. 2006), “an exigency exists when officers can demonstrate that a suspect
has a willingness to use a weapon” (citing Dickerson v. McClellan, 101 F.3d 1151, 1159-60 (6th Cir.
1996)).
        This conclusion finds support in Hancock v. Dodgson, 958 F.2d 1367 (6th Cir. 1992), a case
where this court found exigent circumstances to enter a home without a warrant due to an immediate
danger. The Hancock court cited the following determinative facts: (1) “the officers received a call
over the police radio that there existed a situation involving a suicidal and possibly homicidal
gunman”; (2) the police “dispatch reported that shots had been fired”; (3) at least one radio
communication indicated that the suspect had threatened to kill any approaching officer; (4) upon
arriving at the house where the suspect was located, the police saw a .22 caliber gun next to the front
door; (5) the suspect was standing on the front porch; (6) the police could not tell whether the suspect
No. 05-3889            Estate of William J. Bing, et al. v.                                    Page 8
                       City of Whitehall, Ohio, et al.


was armed. Id. at 1375-76. On these facts, this court held that an immediate-danger exigency
justified warrantless entry into the house. See id.
        If an immediate-danger exigency existed in Hancock, a fortiori a dangerous exigency existed
here. In this case, as in Hancock, the police received a report of shots fired. Here, as in Hancock,
the police had information indicating that Bing could be homicidal. Bing had fired shots in the
presence of minors, making it reasonable to expect that Bing could become homicidal. In this case,
as in Hancock, the suspect had access to a gun.
        But the facts here make the case for a dangerous exigency stronger than in Hancock. The
police in Hancock did not have to worry about the safety of bystanders or neighbors. There was no
indication that the suspect was intoxicated, and the police had not been to the Hancock suspect’s
house previously due to his firing of shots. Also, the police in Hancock did not even know the nature
of the threat that the suspect posed—their entry was justified precisely because they needed to find
out. See id. (“Shrah decided to go through the house because it was the quickest route to get to the
suspect to determine the extent of the threat which he posed. Under these circumstances, the officers
were truly faced with an emergency situation, and were entitled to enter the house without a
warrant.”) (emphasis added). Here, on the other hand, the police had already ascertained that Bing
posed a danger to identifiable people based on his firing of shots and the presence of his neighbors
and the people in the street. It is true that in Hancock the police received a report of a threat of
violence against the police, while Bing issued no comparable threat. But the safety of neighbors
nearby, the increased risk of unstable behavior due to intoxication, and Bing’s history of firing shots
far outweigh the lack of one reported threat. Under Hancock, the police in this case faced an
immediate-danger exigency.
          Moreover, that exigency did not terminate due to the passage of time or the police’s actions.
First, the exigency did not terminate due to the passage of time because Bing was at all times
dangerous. Roughly two hours and twenty-four minutes passed from the time the police arrived at
about 6:30 p.m. until they used the gas canisters at 8:54 p.m., but the passage of this much time did
not itself terminate the exigency. The passage of time did not terminate the exigency because the
ticking of the clock did nothing to cut off Bing’s access to his gun, or cure him of his willingness to
fire it, or move to safety the people nearby who refused to evacuate. In United States v. Lindsey, 877
F.2d 777, 782 (9th Cir. 1989), the Ninth Circuit held that a delay of one hour did not dissipate an
exigency. “The source remained in possession of dangerous explosives and may have grown
increasingly suspicious of police intervention.” Id. Exigent circumstances terminate when the factors
creating the exigency are negated. See, e.g., Mincey v. Arizona, 437 U.S. 385, 393 (1978); see also
Causey, 442 F.3d at 530; United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994). Because the
passage of time did not make Bing any less dangerous, Bing posed a continuous immediate danger.
Cf. Michigan v. Tyler, 436 U.S. 499, 510 (1978) (permitting, under the exigency exception to the
warrant requirement, warrantless searches in fire investigations to detect “continuing dangers” such
as defective furnaces or faulty wiring that could cause fire). Consequently, the two and a half-hour
passage of time did not by itself negate the dangerous exigency in this case.
        Second, no factors other than the mere passage of time—such as the officers’ decision to wait
for backup, gather perimeter reports, or execute a plan—negated the exigency. The police waited for
backup from about 6:30 p.m., when they first arrived, until around 7:30 p.m., when the S.W.A.T.
arrived. Thus, about an hour passed while the officers waited for backup. Another hour and twenty-
four minutes, approximately, passed before the employment of the gas at 8:54 p.m. During this
period, the police gathered reports from the officers stationed along the perimeter, developed a plan
for dealing with Bing, including the use of pepper gas and the bag phone, and executed that plan.
The police’s decisions to wait for backup for an hour and to gather intelligence and execute a plan
for another hour and twenty-four minutes did not terminate the exigency.
No. 05-3889            Estate of William J. Bing, et al. v.                                        Page 9
                       City of Whitehall, Ohio, et al.


        This court’s precedents and persuasive authority from other circuits leave no doubt that an
exigency does not terminate merely because the police wait for backup, or because they take the time
reasonably necessary to confirm information and execute a plan. As this court noted in Causey,
“waiting half an hour or less for backup does not mean that there was no [immediate-danger]
exigency.” 442 F.3d at 531. In Dickerson, also, this court found imminent peril even though the first
officer on the scene waited for backup, although we did not mention how long that officer waited.
See 101 F.3d at 1154, 1160. The wait in this case for specialized backup with sophisticated S.W.A.T.
team equipment should be expected to take longer than waiting for one officer, as in Dickerson, id.
at 1154, or a few “colleagues,” as in Causey, 442 F.3d at 527. Waiting for one hour for the S.W.A.T.
team here was reasonable and did not negate the exigency. See Lindsey, 877 F.2d at 781-82 (holding
that a one-hour wait for reinforcements did not terminate the exigency).
        Moreover, the on-the-scene investigation by the police did not terminate the exigency. See
Causey, 442 F.3d at 526-27, 530. In Causey, this court held that a dangerous exigency was not
terminated by a police investigation that included two witness interviews, conferral with dispatch,
and a search of the suspect’s yard. Id. Similarly, in this case, after arriving on the scene, the
S.W.A.T. commander gathered intelligence from officers stationed along the perimeter around Bing’s
house for an unknown period of time. This information-gathering activity accounts for some of the
“two-hour gap” that the district court cited when it held that a genuine issue of material fact on the
issue of exigency precluded summary judgment. But the gathering of information by police, even
in the face of immediate danger, does not negate a dangerous exigency. In United States v.
Picariello, for instance, the First Circuit held that an F.B.I. investigation lasting five hours did not
the terminate the danger-based exigency in that case. See 568 F.2d 222, 226 (1st Cir. 1978).
        Finally, the police’s execution of a plan for dealing with a dangerous exigency did not
terminate the exigency. The S.W.A.T. team’s execution of the plan to employ the gas, although it
took roughly one hour and twenty-four minutes from the time of their arrival, was not unduly delayed
and the exigency consequently did not terminate merely because the plan consumed that quantity of
time. The police in this case gathered information from the officers around the perimeter and then
exhausted alternatives, such as the attempt to contact Bing via the bag phone. Only then did the
police resort to the use of pepper gas. The police’s incremental increase in the amount of pressure
on Bing was methodical, planned, and professional.
        This court has never held that only plans of action requiring brief windows of time may stay
within the scope of a dangerous exigency. By contrast, other courts have countenanced time-
consuming courses of action. The Eighth Circuit in United States v. Jones, 635 F.2d 1357, 1361-62
(8th Cir. 1980), held that “careful police work” that lasted an hour did not terminate the danger-based
exigency. Similarly, the Fifth Circuit in United States v. De Jesus-Batres, 410 F.3d 154, 158-59 (5th
Cir. 2005), held that police officers’ forty-five minute search of a house did not terminate the
dangerous exigency that justified the subsequent, warrantless search of the nearby garage. Therefore,
the exigency was not terminated by the police decision to plan and execute the pepper gas
employment in a proper fashion after exhausting alternatives.
       The district court held that a factual dispute precluded summary judgment on the issue of
whether a dangerous exigency existed to justify shooting pepper gas into the house without a warrant.
The district court relied on the following quote from the deposition of Sgt. Martin to support its
conclusion:
       Q:      Did you talk to Sergeant Brandeberry at all about why you couldn’t have just
               outwaited him, maybe sat there all night?
       A:      We would have done that had he not shot through the wall at the officers. . . . .
No. 05-3889            Estate of William J. Bing, et al. v.                                    Page 10
                       City of Whitehall, Ohio, et al.


               As I explained, had he not been creating an immediate threat to the people of
               the neighborhood and outside of the house, he could have stayed in there all
               night. Once he started shooting, it changed the circumstances; and we reacted
               to what he did.
Pointing to Sgt. Martin’s statement that Bing did not pose a danger until later in the evening when
he allegedly shot at the police (an allegation that the district court held was genuinely disputed for
summary judgment purposes), the district court held that a rational juror could find that the officers
did not reasonably believe that a dangerous exigency justified the decision not to obtain a warrant.
       Sgt. Martin’s statement, however, did not raise the legal floor for establishing a dangerous
exigency. Sgt. Martin explains in this quote why the S.W.A.T. team decided to raid the house. In
saying that there was no immediate danger before the raid, he plainly said that the danger was not
severe enough to justify a raid.
        It cannot be that an immediate-danger exigency could have existed only when the police
reasonably felt forced to raid the house. If this standard were generally applicable, any time the
police methodically increase the pressure on a barricaded gunman to force his exit, without invading,
a rational juror may on that basis find no immediate danger. This position is not compelled by the
Fourth Amendment. The extreme level of danger that requires police to mount an immediate
invasion with weapons drawn cannot serve as the floor for establishing a dangerous exigency.
“Immediate danger” cannot require “immediate invasion,” no matter what one police officer’s
deposition says. The police in Dickerson and Causey did not mount immediate raids (and presumably
felt no need to do so), but this court in those cases held that no rational juror could disagree that
dangerous exigencies were present. Therefore, this quote from Sgt. Martin’s deposition does not
create a genuinely disputed issue of material fact on the issue of exigency.
        This court’s ruling in O’Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994), is not to
the contrary. In O’Brien, a search case, this court held that no exigency existed where the police
encircled the house of an armed man who had yelled at police to get off his property and then
retreated into his house for six hours without violent incident. Id. at 993-94, 997-98. The police in
O’Brien were assisting in the seizure of Joseph O’Brien’s truck from his property to satisfy a civil
judgment. See id. at 993. One of the officers spotted O’Brien standing his doorway with a rifle in
the port arms position. O’Brien disobeyed the officer’s order to drop his weapon and yelled, “Leave
my truck alone! Get out of here!” With that, O’Brien closed the front door. The officers called for
backup, setup a perimeter, and evacuated the neighbors. The police tried to talk to O’Brien for nearly
six hours but never informed him through the bullhorn or otherwise that he was under arrest. The
police learned that O’Brien had mental problems and had been cleared of charges for violent actions
in the past.
        The police attempted to use investigatory “probes” to help them view what was happening
in the house. See id. at 994. O’Brien eventually responded to this probing with gunfire. See id. At
length the police shot and killed O’Brien. Police Chief Hegarty conceded that O’Brien presented “no
overt physical, hostile threat at any time from 11:50 [a.m.], when he closed his door, until 5:56 [p.m.]
when the shot was fired.”
       The O’Brien court held that no exigency based on immediate danger justified the officers’
warrantless use of the search probes. See id. at 997-98. The court relied on the following facts to
draw this conclusion: (1) from “the time O’Brien retreated into the house until just before the third
probe, O’Brien had taken no action against the officers”; (2) O’Brien never pointed his gun at anyone
during the relevant time period; (3) O’Brien did not verbally threaten to use his gun; and (4) the
No. 05-3889            Estate of William J. Bing, et al. v.                                    Page 11
                       City of Whitehall, Ohio, et al.


officers delayed using the first probe for four-and-a-half hours. Id. Consequently, any threat from
O’Brien was not “immediate” and therefore supplied no exigency. See id. at 997-98.
         O’Brien is distinguishable from this case in relevant respects. Bing posed a much more
immediate threat than did O’Brien. In this case, unlike O’Brien, police responded to a call of shots
fired. Bing fired his weapon, while O’Brien never discharged his weapon during the relevant period.
Unlike O’Brien, Bing had a history known to the police of firing shots in his neighborhood, and there
is no report that Bing had been cleared of charges as O’Brien had. Here, innocent bystanders were
in the street, where they might have been hit had Bing fired. In O’Brien, by contrast, the police
successfully evacuated the neighbors, apparently leaving no bystanders outside the house that could
have been hit by stray bullets. The police in this case did not delay as did the police in O’Brien.
Here, the police waited an hour for backup, another hour or so to insert the bag phone (after gathering
intelligence), and another eleven minutes to use the pepper gas for the first time. In O’Brien backup
arrived in seconds, see id. at 993, but the police nevertheless waited four-and-a-half hours to position
the first probe, see id. at 998, a clear case of procrastination having no parallel here. These material
distinctions render O’Brien’s holding regarding the immediacy of danger inapplicable to this case.
       Therefore, the dangerous exigency permitted the police to seize Bing by encircling his house
and controlling his movements using pepper gas without obtaining a warrant.
                                                  2.
        The police’s warrantless entry into Bing’s house around 11:20 p.m., like the de facto house
arrest, was justified by the dangerous exigency created by Bing. The exigency that permitted the
warrantless seizure of Bing through the use of pepper spray had not abated when they entered about
one hour and thirty minutes later. See Causey, 442 F.3d at 530. Just before the police entered the
house, Bing still had access to a gun. There were no grounds for concluding that Bing had lost the
willingness to use it; moreover, the neighbors were still not evacuated. In short, the previous
exigency continued. The officers therefore did not violate Bing’s Fourth Amendment rights when
they entered the house without a warrant.
                                                   B.
        The police are also entitled to qualified immunity with respect to the plaintiffs’ claims for
excessive force in the use of pepper spray and flashbang devices, and for the destruction of property.
The police used reasonable force when they employed pepper gas and the first flashbang device in
an attempt to force Bing outside the house. Although a jury could conclude that the police used
excessive force when they employed the second flashbang device, which set the house on fire, the
right against this use of force was not “clearly established,” entitling the officers to immunity from
this claim as well. For the same reason, the plaintiffs’ destruction of property claim based on the
house fire is also barred by the officers’ qualified immunity.
       In a qualified immunity analysis, the “first inquiry must be whether a constitutional right
would have been violated on the facts alleged; second, assuming the violation is established, the
question whether the right was clearly established must be considered on a more specific level.”
Saucier v. Katz, 533 U.S. 194, 200 (2001).
                                                  1.
        The police’s use of pepper gas and the first flashbang device was reasonable under the totality
of the circumstances test set forth in Graham v. Connor, 490 U.S. 386, 396 (1989). Graham requires
this court to determine the reasonableness of the police use of gas and the flashbang devices by
performing a “careful balancing of the nature and quality of the intrusion on the individual’s Fourth
No. 05-3889               Estate of William J. Bing, et al. v.                                                 Page 12
                          City of Whitehall, Ohio, et al.


Amendment interests against the countervailing governmental interests at stake.” Id. (internal
quotation marks omitted). When judging the objective reasonableness of a use of force, this court
may not use 20/20 hindsight. See id. at 396-97. The court must adopt the perspective of a reasonable
policeman on the scene. See id. The court weighs Bing’s interest in avoiding the officers’ use of
pepper gas and the first flashbang against the officers’ interest in using these methods, as measured
by the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id.
        Under Graham’s balancing test, the officers’ use of pepper gas and the first flashbang were
reasonable because their interest in employing these devices outweighed Bing’s interest in avoiding
them. Bing of course has a significant interest in not having his house gassed, and in avoiding having
a flashbang device explode in his home. But the police’s interest here outweighed Bing’s interest
because, as noted above regarding exigency, Bing posed a serious and immediate threat to others and
refused to come out of his house to be arrested. The police had a great need to disarm Bing and place
him under arrest to abate the threat that he posed to people in the area. This interest outweighed
Bing’s significant interest in avoiding this use of force.
                                                          2.
         Nevertheless, when the officers employed the second flashbang device, at least under the
district court’s view of the facts, the officers violated Bing’s right against excessive police force
under the Graham balancing test. Assuming that the officers knew that Bing’s house contained
highly flammable accelerants and that a flashbang device could easily start a fire, the use of such a
device was on balance objectively unreasonable. The district court assumed for summary judgment
purposes that a jury could find that the  police “knew or should have known that accelerants were
present and would likely start a fire.”2 Applying Graham to the district court’s view of the facts, it
is objectively unreasonable for the police to employ a flashbang device with full knowledge that it
will “likely” ignite accelerants and cause a fire. A fire, which in fact occurred, posed a mortal threat
to Bing, who of course has a fundamental interest in his life. Tennessee v. Garner, 471 U.S. 1, 9
(1985).
         Although in theory the police might have had a great enough interest in seizing Bing to justify
the use of deadly force, the Graham test is a totality of the circumstances test. See id. at 317. As
such, it governs the method of force used as well as the level used. See, e.g., United States v. Dykes,
406 F.3d 717, 720 (D.C. Cir. 2005) (holding that tackling was a reasonable method of effectuating
a stop under the circumstances). The government’s interest in using various methods of applying
similar levels of force may be weighed as a factor in the Graham analysis. See id. For example, if
the police had a great enough interest to use deadly force against Bing, 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. The
government necessarily had less of an interest in burning down Bing’s house than it had in shooting
at him because the police had no interest in creating the additional risk that a burning building poses
to everyone else in the neighborhood. Throwing a flashbang device into a house with knowledge that
the dwelling will likely catch fire thus constitutes unreasonable force in these circumstances even
assuming (without deciding) that the police would have been justified in using deadly force.




         2
           In viewing the facts in the light least favorable to the movant, we accept this fact, notwithstanding evidence
in the record that the “accelerants” were in fact cans of Sterno. JA 330 (deposition testimony of Finton in which he
states, “The only thing, or one of the things that [Bing] had been huffing lately that I knew of was Sterno.”).
 No. 05-3889            Estate of William J. Bing, et al. v.                                      Page 13
                        City of Whitehall, Ohio, et al.


         Bing’s right not to endure a second flashbang device in these circumstances, however, was
not “clearly established.” The Supreme Court has not clearly established such a right, nor has this
court or other circuits. See Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir. 1991) (noting that
this court first looks to Supreme Court cases, then to Sixth Circuit cases, and finally to decisions of
other circuits). None of the cases concerning flashbang devices to which the parties refer involve
policemen who knew that such devices would likely ignite flammable materials and thereby cause
a fire. See Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005); Molina v. Cooper, 325 F.3d
963, 973 (7th Cir. 2003); United States v. Dawkins, 83 Fed. Appx. 48, 51 (6th Cir. 2003); see also
Boyd v. Benton County, 374 F.3d 773, 778, 781-82 (9th Cir. 2004) (examining United States v. Jones,
214 F.3d 836 (7th Cir. 2000); United States v. Myers, 106 F.3d 936 (10th Cir. 1997); United States
v. Baker, 16 F.3d 854 (8th Cir. 1994)).
        Given the lack of any case similar to this case finding a Fourth Amendment violation, it would
not have been clear to a reasonable officer in the circumstances at issue that employing the second
flashbang device violated the Constitution. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).
The officers’ actions fall near enough to the “hazy” border separating illegal from legal conduct for
qualified immunity to attach. See Brosseau v. Haugen, 543 U.S. 194, 201 (2004); Saucier, 533 U.S.
at 206. The officers are therefore immune from suit for the excessive force associated with the
second flashbang. The same reasoning requires immunity for the destruction of Bing’s house.
                                                   III.
        The district court however properly denied summary judgment in favor of the officers with
respect to the plaintiffs’ police-shooting deadly force claim. The district court’s view of the facts
regarding this claim, if true, constitutes a violation of Bing’s “clearly established” right not to be
attacked with deadly force.
        The district court’s view of the facts relevant to the deadly force claim is not clear from its
opinion. However, after reviewing the district court’s opinion, the parties’ briefs, and the record, and
after having participated in oral argument, we agree with counsel for the plaintiffs that the district
court likely assumed the following facts regarding the officers’ invasion of the house and shooting
of Bing: (1) when the officers entered the house, Bing did not fire a gun at them; (2) Bing posed no
safety threat to anyone at that point; and (3) the officers shot Bing in the back without provocation.
Tr. Oral Arg. 26:22-53 (audio recording). We assume these facts to be true for purposes of this
interlocutory appeal. See Johnson, 515 U.S. at 319 (noting that if the district court does not specify
the facts it assumed when it denied qualified immunity, “a court of appeals may have to undertake
a cumbersome review of the record to determine what facts the district court, in the light most
favorable to the nonmoving party, likely assumed”).
         The district court in particular made several observations related to the evidence in this case
that cause us to attribute these assumptions to the district court. For instance, the district court stated
that Bing’s gun, recovered from the burned-down house, did not bear Bing’s fingerprints. The
district court further noted that the coroner’s report and the autopsy report reflected that Bing had
been shot in the back. Finally, the district court cited a purported expert’s opinion that the police
version of events—in which Bing fired first and the police fired back defensively—was inconsistent
with the physical evidence in this case.
        This set of facts assumed by the district court, if true, constitutes a violation of Bing’s Fourth
Amendment right against the use of deadly force. If, indeed, Bing did not have the gun after the
police entered the house and posed no safety threat to anyone when he was shot to death in the back,
then the danger he had once posed had abated. Under these assumptions, the officers had no
legitimate interest in using deadly force that could counterbalance Bing’s fundamental interest in his
No. 05-3889                Estate of William J. Bing, et al. v.                                                     Page 14
                           City of Whitehall, Ohio, et al.


life. Therefore, under these assumptions, the Graham balancing test compels the conclusion that
Bing’s rights would have been violated. See Smith, 430 F.3d at 774-75.
        Moreover, the right allegedly violated is clearly established under the Supreme Court’s ruling
in Tennessee v. Garner. See 471 U.S. at 9, 11. Garner holds that the police may not shoot a fleeing
nondangerous suspect in the back of the head. See id. Garner’s “[g]eneral statement” of this legal
principle is “capable of giving clear and fair warning to officers even where ‘the very action in
question has (not) previously been held lawful.’” Smith, 430 F.3d at 776 (quoting Anderson, 483
U.S. at 640). No reasonable officer could fail to see that shooting an unarmed man in the back who
has ceased to present a danger violates Garner.
        The district court therefore properly denied summary judgment to the officers with respect
to the police-shooting deadly force claim.3
                                                            IV.
        For the foregoing reasons, the judgment is reversed regarding all claims except the police-
shooting deadly force claim. The denial of summary judgment as to the police-shooting deadly force
claim is affirmed. The case is remanded for proceedings consistent with this opinion.




         3
            The officers argue in their brief that defendants Showalter, Snider, Alan, Brandeberry, and Forbes were present
merely as backup and thus deserve qualified immunity. For support, the officers cite Aquisto v. Danbert, which held
that officers’ participation in a constitutional violation must extend beyond mere “presence” before they can be held
liable under § 1983. See No. 97-1668, 1998 U.S. App. LEXIS 21694, *10-*12, *14-*15 (6th Cir. Sept. 1, 1998).
However, the district court had no opportunity to address the officers’ argument based on Aquisto because the officers
did not cite this case in their brief before the district court. Nor did they argue in the district court that these defendants
provided mere backup.
          Instead, the officers argued, without citing any law, that Sgt. Martin alone used “force” on Bing. For instance,
the officers argued in the district court that Officer Salyers “did not use force or deadly force” on Bing because the shots
he fired at Bing with his service weapon did not actually hit him. The officers thus argued that actions such as shooting
at Bing but not hitting him, or (in the case of Detective Grebb) employing a flashbang that did not actually kill Bing, do
not constitute “force.” This argument based on the meaning of “force” is distinct from the argument raised in this court
based on Aquisto—that defendants Showalter, Snider, Alan, Brandeberry, and Forbes were present merely as backup.
Indeed, the distinctness of the two arguments can be readily seen from the officers’ decision not to argue that Officer
Salyers and Detective Grebb were present as mere backup, while in the district court the defense argued that neither of
these policemen used any “force” on Bing. Because the officers raise their Aquisto-based argument for the first time on
appeal, we decline to consider it. See Saylor v. United States, 315 F.3d 664, 669 (6th Cir. 2003).
No. 05-3889            Estate of William J. Bing, et al. v.                                     Page 15
                       City of Whitehall, Ohio, et al.


                                         _________________
                                          CONCURRENCE
                                         _________________
         RONALD LEE GILMAN, Circuit Judge, concurring. I fully agree with the majority that
summary judgment was properly denied as to the claim by Bing’s estate that the police used
excessive force in trying to arrest Bing. My primary disagreement with the majority relates to its
holding that “exigent circumstances” justified the warrantless intrusions into Bing’s residence in the
first place. I would hold that such intrusions violated his Fourth and Fourteenth Amendment rights,
even though I ultimately agree that the constitutional violation was not so clearly established at the
time of the events in question as to deny the officers qualified immunity.
        My view of this case starts with the fundamental principle that “searches and seizures inside
a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586
(1980). Although exigent circumstances can overcome this presumption, the only possible exigency
that would be applicable here is that “the suspect represented an immediate threat to the arresting
officers or the public.” Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir. 1989). I do not believe that
such an immediate threat was present in the case before us.
         In particular, I do not find this circuit’s decision in O’Brien v. City of Grand Rapids, 23 F.3d
990 (6th Cir. 1994), to be distinguishable. If anything, that was a stronger case for finding an
exigency because O’Brien had “previously shot and wounded a citizen in the front yard of the same
premises” to which the officers responded. Id. at 1000. O’Brien had shown more than a willingness
to fire his weapon in the air; he had demonstrated in the past a willingness to shoot a person in his
yard. Despite these circumstances, this court still concluded that there were no exigent circumstances
justifying an exception to the warrant requirement. Id. at 998.
        I acknowledge the fact that, in O’Brien, four-and-one-half hours passed prior to the police
inserting the first probe into O’Brien’s house, id. at 998, whereas here only two hours and thirteen
minutes went by before the police broke out a window and threw in the bag phone. But here, like in
O’Brien, Bing had taken no action against the officers or anyone else in the period of time between
their arrival on the scene and when they finally acted. See id. at 997. He had no hostages, was not
brandishing a gun, and was not shouting at the police or the neighbors. Like in O’Brien, “there [wa]s
no evidence establishing that the threat of danger was ‘immediate.’” Id. at 998. I see no reason why
there was not sufficient time under the circumstances for the police to seek a warrant to enter Bing’s
house.
        The majority attempts to analogize the present case to Hancock v. Dodson, 958 F.2d 1367 (6th
Cir. 1992), in order to demonstrate that the officers in this case were presented with exigent
circumstances, going so far as saying that the facts here present an even stronger case for exigency.
I respectfully disagree. In Hancock, the police responded to reports of an unstable man in the midst
of a domestic dispute who had gone out to his barn with one of his guns. Hancock, 958 F.2d at 1369.
When Hancock spoke with a police radio dispatcher who called his house, he said “if you send any
cops over here, I’ll kill them.” Id. When the police arrived, one officer approached the back screen
door of Hancock’s house. Id. From that vantage point, the officer could see a gun near the front
door, could hear yelling in a hostile tone, and could see Hancock standing on the front porch, but
could not tell whether he was armed. Id. at 1369, 1375. The officer then entered the house and
moved to the front door. Id. at 1369. Upon reaching the front door, the officer drew his gun, opened
the door, and stepped out onto the porch where Hancock was verbally confronting other officers on
the scene. Id. This court concluded that “the factual record amply demonstrate[d] that exigent
circumstances existed” to enter Hancock’s home. Id.
 No. 05-3889           Estate of William J. Bing, et al. v.                                      Page 16
                       City of Whitehall, Ohio, et al.


        This case is different from Hancock. When the officer in Hancock entered the house, the
potential gunman posed far more of an immediate threat. Hancock had told the police dispatcher that
he would kill any responding officers. Moreover, the officer could see a firearm within a short
distance of Hancock, and he could see Hancock himself, who was on the porch shouting at other
officers in a hostile tone. These circumstances are a far cry from those in this case, where Bing
(1) had withdrawn into his house for over two hours before the police broke his window and
progressively inserted a bag phone, pepper gas, and flashbangs, (2) had not been brandishing a gun,
(3) had not declared that he would kill the officers, and (4) was not standing on his porch shouting
at the police at the time of the entry, or even communicating with the police at all.
        The majority posits, however, that the presence of the neighbors who refused to evacuate the
surrounding area heightened the threat that Bing presented. This fact allegedly helps to distinguish
O’Brien, because there the police had successfully evacuated the neighbors early on in that standoff.
O’Brien, 23 F.3d at 993. But the majority’s reliance on the presence of unevacuated neighbors
rewards the police for their failure to properly utilize their authority to force the evacuations of those
who were presumably endangered by an allegedly dangerous gunman. I am concerned that this
rationale will encourage the police to not protect bystanders in order to help justify a warrantless
entry on the basis of exigent circumstances.
        In the end, I find this case to be closer to O’Brien than to Hancock, and thus believe that there
were no exigent circumstances justifying a warrantless entry into Bing’s home. I would therefore
conclude that the officers violated Bing’s constitutional rights. On the other hand, I believe that they
are entitled to qualified immunity because this case is not so close to O’Brien as to have put a
reasonable officer on notice that his conduct was illegal. There is, for example, an admittedly large
disparity between O’Brien and this case in terms of the hours of delay prior to taking invasive action.
Moreover, even if the officers failed in their duty to protect the public by not forcibly evacuating
Bing’s neighbors, there were in fact bystanders in the area. The presence of the bystanders may have
caused a reasonable officer to believe that the threat to the public was greater than that presented in
O’Brien.
        So even though I conclude that the officers were mistaken in their belief that exigent
circumstances were present, they should be protected by qualified immunity. See Saucier v. Katz,
533 U.S. 194, 202 (2001) (“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” ); Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity
defense has evolved, it provides ample protection to all but the plainly incompetent or those who
knowingly violate the law.”). I thus reluctantly agree with the majority that the warrantless intrusions
into Bing’s home do not in themselves provide a basis to hold the officers personally liable.
