                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2426

E STATE OF R UDY E SCOBEDO
(deceased) (Raquel Hanic, Personal
Representative of Estate),
                                                Plaintiff-Appellant,
                                 v.

O FFICER B RIAN M ARTIN , ET AL.,
                                             Defendants-Appellees.


             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
           No. 05 CV 0424—Theresa L. Springmann, Judge.


     A RGUED M AY 31, 2012 — D ECIDED D ECEMBER 13, 2012




  Before M ANION, K ANNE, and W ILLIAMS, Circuit Judges.
  M ANION, Circuit Judge. In the early morning hours
of July 19, 2005, Rudy Escobedo became suicidal
and ingested cocaine. He dialed 911 and told the operator
he had taken cocaine, had a gun to his head, and wanted
to kill himself. An emergency response team was dis-
patched to negotiate with Escobedo and to try to get him
to put down his weapon and leave his apartment volun-
2                                              No. 11-2426

tarily. Negotiations proved unfruitful and the police
opted to deploy a tactical response to remove Escobedo
from his apartment, as they thought he presented a
danger to the community around him. After deploying
two volleys of tear gas into Escobedo’s seventh-floor
apartment, a team of six officers wearing gas masks
and other protective equipment broke into the apartment.
The officers found him holed up in his closet with a gun
to his head. The officers ordered him to put down
the weapon, but Escobedo did not comply and was shot by
two of the police officers. Escobedo’s Estate brought a
§ 1983 excessive force claim against the police and the
City of Fort Wayne. After a variety of motions were
filed and a partial summary judgment was granted
and appealed, the case went to trial and the jury found
in favor of the defendants. The district court also granted
judgment as a matter of law in favor of the defendants
after the jury entered its verdict. The Estate now
appeals, and we affirm.


                   I. BACKGROUND
    A. Escobedo calls 911
  Early in the morning of July 19, 2005, Rudy Escobedo
became suicidal and ingested cocaine. From his
apartment in Fort Wayne, Indiana, he called his
sister Renee and left a message telling her he loved her.
He then called his other sister Regina and told her that
he had done something stupid, that he was going to jail
for a long time, and that he loved her. Shortly after
4:00 a.m., he dialed 911 and informed the dispatcher
No. 11-2426                                               3

that he had taken cocaine, had a gun to his head, and
wanted to shoot himself. He claimed that the police were in
his apartment, but also said that he was alone and that
the police were outside his apartment and that he did
not want them to enter. He stated that he did not want
to hurt anyone, but would kill himself if the police
entered his apartment. He gave the dispatcher the
name and telephone number of his counselor, Dr.
Jim Cates, and said he wanted “someone” to talk to.
The dispatcher notified the police, and Officers Foust
and Fairchild soon arrived at Escobedo’s apartment. The
apartment was located on the seventh floor of a building
on West Berry Street in downtown Fort Wayne. St. Joseph
Hospital was two blocks from his apartment, as was a
church with a preschool and several other local businesses.
Officer Foust knocked on Escobedo’s door and received no
answer, but he heard someone (presumably Escobedo)
chamber a round into a handgun and move items around
inside the apartment.
  Sgt. C. M. Taylor, who had also been dispatched to
Escobedo’s apartment, arrived at 4:38 a.m. and spoke to
Officers Foust and Fairchild, who briefed him on the efforts
they had taken thus far to reach Escobedo. Sgt. Taylor
attempted to speak to Escobedo through the apartment
door, but received no response. He was finally able to
reach Escobedo via cellphone at around 4:55 a.m., and
Escobedo told Sgt. Taylor that he was a drug addict and
high on cocaine. Escobedo reiterated that he wanted to die;
that he had a gun to his head; that he did not want the
police to enter his apartment; that he did not want to hurt
the police but would kill himself if the police entered his
4                                               No. 11-2426

apartment; and that he wanted to speak to his therapist
Dr. Cates. Sgt. Taylor told Escobedo that no one would try
to break into his apartment or try to hurt him, and that Sgt.
Taylor was there to help him.


    B. The Crisis Response Team arrives and begins
       negotiating with Escobedo
  After this conversation, Sgt. Taylor and another officer
who had arrived on the scene, Sgt. Michael Vorhies, made
the decision to contact the Crisis Response Team (“CRT”),
a division of the Fort Wayne Police Department that
specializes in situations involving hostages and barricades,
including situations where suicidal individuals barricade
themselves. While waiting for the CRT, Sgt. Taylor directed
several other officers to try to evacuate the other apart-
ments on the seventh floor of Escobedo’s building, but no
one answered when the officers knocked. During this time,
Sgt. Taylor continued to converse on and off with
Escobedo.
  Members of the CRT began arriving at 5:30 a.m., with
Officer Bernie Ebetino arriving first. Officer Ebetino
proceeded to the seventh floor and listened to Escobedo’s
conversation with Sgt. Taylor for a few minutes, and then
took over negotiations. Other CRT members continued to
arrive and assumed various roles: Detective Jonathan
Bowers acted as the liaison between the negotiators on the
seventh floor and the commanders outside the building;
Officer Sofia Rosales kept a timeline of events for the CRT;
Officer Victor Torres also served as a liaison but remained
outside the building at the command post; Detective
No. 11-2426                                                     5

Lorna Russell helped to coach Officer Ebetino during the
negotiations; and Sgt. Hunter, the CRT commander, acted
as an information relay between the negotiators and the
commanders.


    C. The Emergency Services Team arrives as negotia-
       tions with Escobedo continue
  Members of the Emergency Services Team (“EST”) also
began arriving on the scene. 1 Lt. Kevin Zelt, the EST
commander, joined Sgt. Hunter at the scene, and both were
under the direct command of Deputy Chief Martin Bender,
who was the incident scene commander and had
overall authority. Deputy Chief Douglas Lucker was on
the scene as well and provided assistance to Deputy
Chief Bender. Bender established a command center
in the parking lot next to the apartment complex. He
then ordered the officers present to form a perimeter
around the building, and notified the nearby hospital that



1
 The Fort Wayne Police Department has two specific teams that
are relevant to this case: The Crisis Response Team and the
Emergency Services Team. These two teams work in tandem
with specific complementary tasks: The CRT handles the
negotiation side of situations involving hostages, barricades, and
suicidal barricades; and the EST, similar to a typical SWAT unit,
handles the tactical side of these situations. The EST team is
trained to defuse such situations with tactical methods such as
the use of tear gas, flashbang grenades, and other stun devices,
and, when necessary, the use of force. Whenever the CRT is
activated, the EST is also deployed.
6                                                           No. 11-2426

an armed man was threatening to commit suicide in
the building.
  Sgt. Taylor, the officer who had first communicated with
Escobedo, briefed Deputy Chief Bender on the situation
and then left the scene, leaving his cellphone with Officer
Ebetino. Deputy Chief Bender in turn briefed Lt. Zelt
on the details of the situation, and Lt. Zelt deployed a
three-man squad of snipers/observers to conduct visual
surveillance of Escobedo. With the command center
located outside the building and the negotiators located on
the seventh floor of the building, it was necessary to
develop a communication relay system to keep the com-
manders informed of the negotiation proceedings. To
that end, a CRT officer on the seventh floor relayed infor-
mation via a direct-link phone system down to Sgt. Hunter,
who in turn passed that information on to the
other command staff. When the CRT began using the
direct-link phone, they stopped using Sgt. Taylor’s
phone to communicate with Escobedo and began using
another officer’s phone which was compatible with the
direct-link system.2


2
  Officer Ebetino did not inform Escobedo of the switch after
contacting him on the new phone, and Officer Ebetino did
not provide Escobedo with the number of the new phone
(though presumably it would have appeared on Escobedo’s
cellphone when Officer Ebetino called with the new phone).
L a t e r , a ft e r t h e n e g o t ia t io n s w ith E sc o b e d o h a d
ceased, Escobedo attempted to call Sgt. Taylor’s phone
five times, but by that point the CRT had already evacuated
                                                          (continued...)
No. 11-2426                                                7

   Officer Ebetino’s plan during the negotiation was
for Escobedo to put the gun down and leave his apartment
so he could be taken into custody for an emergency
mental health detention. Officer Ebetino employed
various techniques used by negotiators to effect this plan:
he tried to build rapport with Escobedo via active
listening, tried to calm Escobedo, tried to build trust
and empathy with him, and emphasized that the
police were there to help Escobedo. Escobedo informed
Officer Ebetino that he had received treatment by a psychi-
atrist, Dr. Cates, and Sgt. Hunter called Dr. Cates to
learn more about Escobedo. Dr. Cates told Sgt. Hunter
that Escobedo had a history of drug use and bipolar
disorder, had a strained relationship with his family,
and was difficult to deal with when high on drugs.
Dr. Cates said that he did not think he could be of
any help during the negotiations because Escobedo was
difficult to deal with when using drugs, but he still
offered to come to the scene. Sgt. Hunter relayed
this information to Deputy Chief Bender, and Hunter
decided not to ask Dr. Cates to come to the scene.
  During the negotiations, Escobedo repeatedly discussed
wanting to kill himself, but also repeatedly stated that he
did not want to die. Escobedo discussed barricading his
door, and Officer Ebetino heard furniture being
moved inside. Later, Escobedo said that he was removing



(...continued)
their position on the seventh floor and left their equipment,
including Sgt. Taylor’s phone, behind.
8                                            No. 11-2426

the barricade. Escobedo also asked Officer Ebetino
about getting medication and speaking with a counselor,
and emphasized that he wanted to speak with Dr.
Cates. He also talked about seeing his sister Renee,
and Officer Ebetino responded by suggesting that
Escobedo identify a hospital where he could meet his
sister.


    D. As negotiations with Escobedo fall apart, the EST
       prepares a tactical solution
  As the negotiations were ongoing, Lt. Zelt began
to develop a tactical plan to remove Escobedo from
his apartment. The plan included evacuating the building
and then using tear gas and a tactical team. According
to Lt. Zelt’s testimony at trial, Zelt was concerned with
the fact that Escobedo’s weapon had a range of over
one mile and that Escobedo was on the seventh floor of
a building, which meant Escobedo “controlled the
high ground.” In developing his plan, Lt. Zelt reviewed
Escobedo’s criminal history, noting that he had several
prior substance abuse arrests and convictions, including
a recent felony arrest for which Escobedo was facing
prison time.
  By 8:00 a.m., Deputy Chief Bender learned that the
negotiations with Escobedo were not progressing. Bender
ordered Lt. Zelt to prepare his tactical team for firing
tear gas into Escobedo’s apartment to force him out.
At trial, Bender testified that his decision to employ a
tactical plan resulted from his consideration of the
safety of his officers, of the public, and of Escobedo
No. 11-2426                                              9

himself. Officer Ebetino, however, continued to negotiate
with Escobedo while Lt. Zelt and his team prepared
the tactical plan. According to Officer Ebetino’s testimony
at trial, Ebetino believed that he was making no progress
with Escobedo and that Escobedo became increasingly
irrational over the three hours that Ebetino
had spent trying to coax Escobedo to put his gun down and
exit his apartment voluntarily.


 E. The EST fires tear gas into Escobedo’s apartment
   At 8:28 a.m., Escobedo threatened to come out of the
apartment with his gun in his hand, and indicated
to Officer Ebetino that he had a knife as well.
Two minutes later, Escobedo stated he would come out
of his apartment in three minutes. Deputy Chief Bender,
who was ready to order the use of tear gas, held off
to see if Escobedo would come out of the apartment as
he had promised, but Escobedo did not exit his apartment.
Deputy Chief Bender then ordered the tear gas to be
fired into Escobedo’s apartment. All of the commanders
who participated in the decision to deploy a tactical
response (Deputy Chief Bender, Deputy Chief Lucker, Lt.
Zelt, and Sgt. Hunter) testified that the primary reason
for using tear gas to remove Escobedo from the apartment
stemmed from their belief that further negotiations would
be fruitless.
  Officer Ebetino terminated negotiations with Escobedo
and the CRT had no further contact with him. The negotia-
tors evacuated the seventh floor of the building as Lt.
Zelt sent three officers to the street below Escobedo’s
10                                              No. 11-2426

window to position them to fire tear gas up through
the windows of the apartment. While these officers
were positioning themselves, a “take down team”
led by Sgt. Selvia placed themselves in the hallway of
the seventh floor outside of Escobedo’s apartment.
They put on gas masks in preparation for the tear gas
deployment, and were ready to respond if Escobedo exited
the apartment after the tear gas was deployed.
  Escobedo did not exit the apartment. Sgt. Selvia and
other members of the team could hear Escobedo
coughing, and repeatedly shouted for Escobedo to
put down his gun and come out. Escobedo did not re-
spond, and after ten minutes, Lt. Zelt ordered a second
volley of tear gas to be fired into the apartment.
Once again, Sgt. Selvia and the other members of the
take down team shouted for Escobedo to come out of
the apartment, but they heard nothing in response.


  F. The team breaches Escobedo’s apartment door
  After waiting an additional ten minutes, Lt. Zelt ordered
the officers to enter the apartment. Zelt ordered Sgt. Selvia
to employ a “breach & delay” tactic whereby Selvia
and the other members of the team rammed the door
open and tossed an aerosol canister containing tear gas
into the first room of Escobedo’s apartment. By this point,
Sgt. Selvia’s team was comprised of Sgt. Shane
Lee and Officers Derrick Westfield, Scott Straub, Jason
Brown, and Brian Martin. The team waited for over
a minute for a response, but when there was none, Lt.
Zelt ordered Sgt. Selvia to use a second tear gas canister.
No. 11-2426                                              11

  Lt. Zelt then ordered the officers to enter the apartment.
The officers tossed a “flashbang” grenade, a
distraction device that emits a loud noise and a
bright flash, into the room before entering it. The effects
of a flashbang, designed to temporarily disable and
blind a suspect, last between two and eight seconds,
providing officers sufficient time to gain control
over a room. The flashbang ignited some of the propellant
from the tear gas canisters and caused a small fire. The
officers entered the room, put out the fire, and quickly
searched the living room and adjoining kitchen, determin-
ing that Escobedo was not in the common area. They
saw that the bedroom door was closed, and decided
that Escobedo must be in the bedroom.


  G. The team enters the bedroom and Officers Martin
     and Brown shoot Escobedo
  When the team tried to open the bedroom door, they
found it was barricaded, and they had to use the ram
to force the door open, breaking the door in half in
the process. Officer Straub then threw a second flashbang
over the barricade and into the bedroom. The flashbang
detonated in the closet, where Escobedo was
sitting, approximately one to two feet away from
Escobedo’s head.
  After the flashbang detonated, the officers attempted
to enter the room, but were slowed by the barricade.
Eventually they navigated the obstacle and spread
out through the room, shouting for Escobedo to drop
his gun and surrender. Officer Martin spotted Escobedo
12                                              No. 11-2426

sitting in his closet with a gun to his head. Escobedo yelled
out that he had a gun, and Martin in turn yelled to
the team, “He’s got a gun!” At this point, Officer Martin
was approximately four to six feet in front of Escobedo,
who was sitting in the closet with his legs extended
in front of him. Officer Brown stepped in next to
Martin on Martin’s left. Officer Martin was armed with
his service revolver, and Officer Brown was armed with
a Sage, a weapon that fired rubber bullets.
  At trial, Officer Martin testified that he repeatedly
shouted at Escobedo to drop the gun, but instead
of doing so, Escobedo lowered his gun from his head
and pointed it at Martin. Martin then fired his
service revolver at Escobedo several times, and
Brown opened fired with his Sage as well. After
being struck by bullets, Escobedo slumped forward, and
Martin fired a second volley at Escobedo because
he believed Escobedo was reaching for the gun,
which Escobedo had dropped after the first bullets struck
him. Martin ultimately shot Escobedo nine to eleven
times. Officer Brown also fired his Sage, hitting Escobedo
with six rubber bullets. After the second volley,
Officer Martin approached the closet to get Escobedo’s
gun. As he was reaching down to retrieve the gun,
Martin bumped his head on the closet’s doorjamb, which
broke the seal on his gas mask. He was able to grab the
gun and then left the apartment, overcome by the tear
gas. Paramedics were summoned to the room, and they
pronounced Escobedo dead at 8:59 a.m.
No. 11-2426                                              13

  H. The Estate files suit, the defendants file for sum-
     mary judgment, and partial summary judgment is
     granted and appealed
  After Escobedo’s death, his Estate, via its representative
Raquel Hanic, filed a complaint on December 20, 2005,
against the City of Fort Wayne, Officers Martin, Brown,
Westfield, Straub, and Ebetino; Sgts. Selvia, Hunter,
and Shane Lee; Lt. Zelt; and Deputy Chiefs Bender and
Lucker, alleging, inter alia, that the defendants
used excessive force against Escobedo. In January 2007,
the Estate filed a motion to dismiss Lee and Westfield
from the case, which was granted. Shortly thereafter, the
remaining defendants moved for summary judgment,
raising a defense of qualified immunity. In May 2008,
the district court granted in part and denied in part
the defendants’ motion for summary judgment. Specifi-
cally, the district court granted summary judgment:
(1) for Officer Ebetino on all claims against him,
thus dismissing him from the case; (2) for Officers
Martin and Brown on the Estate’s excessive force claim
for shooting Escobedo; (3) for the defendants on the Es-
tate’s failure to train claim; (4) for the defendants on the
Estate’s warrantless entry claim; (5) for the defendants
on the Estate’s substantive due process claim; and
(6) for the defendants on the Estate’s wrongful death claim.
   The district court denied the defendants’ summary
judgment motion with respect to: (1) the Estate’s excessive
force claim against the officers for firing tear gas
into Escobedo’s apartment; (2) the Estate’s supervisory
liability claim against Deputy Chiefs Bender and
14                                              No. 11-2426

Lucker, Lt. Zelt, and Sgt. Hunter, for ordering tear gas to
be fired into Escobedo’s apartment; (3) the Estate’s exces-
sive force claim against the entry team (Sgt. Selvia
and Officers Straub, Martin and Brown) for using tear
gas canisters and flashbangs during the raid on Escobedo’s
apartment and bedroom; and (4) the supervisory liability
claim against Deputy Chiefs Bender and Lucker,
Lt. Zelt, and Lt. Hunter for the entry team’s raid on
Escobedo’s apartment.
   Shortly after the district court’s ruling, the defendants
filed a notice of appeal from the denial of qualified immu-
nity for their decision to use tear gas to extricate Escobedo
from his apartment and to use tear gas canisters
and flashbang grenades to enter his apartment. The
Estate also filed a motion for reconsideration of the sum-
mary judgm ent order in A ugust 2008, which
the district court denied. The Estate then filed a notice
for certification of interlocutory appeal, which
the district court granted, and the Estate petitioned this
court for an interlocutory appeal, w hich w e
denied in October 2008. After denial, the Estate filed
a petition for rehearing and for rehearing en banc,
which we also denied.
  Though we denied the Estate’s petition for an interlocu-
tory appeal, we addressed the defendants’ appeal from
the district court’s denial of their qualified immunity
defense. The only issue before this court on that
appeal was whether the district court erred in finding
that the officers were not entitled to qualified immunity
for their decision to use tear gas canisters to extricate
No. 11-2426                                                  15

Escobedo from his apartment and to use tear gas
and flashbang grenades to enter his apartment. In April
2010, we issued our opinion affirming the district court’s
denial of qualified immunity to Deputy Chiefs Bender
and Lucker, Lt. Zelt, Sgts. Hunter and Selvia, and Officers
Martin, Brown, and Straub. The defendants filed a petition
for rehearing and rehearing en banc, which we denied
in May 2010. The defendants then filed a petition for a
writ of certiorari to the Supreme Court of the United States,
which the Court denied in October 2010.


    I.   The jury trial and judgment as a matter of law
  The case proceeded to an eight-day jury trial in the
district court on the remaining claims—namely, the
excessive force claims against Deputy Chiefs Bender
and Lucker, Lt. Zelt, Sgts. Hunter and Selvia, and Officers
Martin, Brown, and Straub for the entry into Escobedo’s
apartment and the use of tear gas canisters and
flashbang grenades during entry. The trial began on
February 8, 2011, and at the close of the Estate’s case
in chief, all of the defendants moved for judgment as a
matter of law on qualified immunity grounds. The
district court granted judgment as a matter of law in
favor of Sgt. Selvia and Officers Straub, Martin, and Brown,
but took the motion by the remaining defendant command-
ers 3 under advisement. The trial proceeded against defend-


3
 We frequently refer to Deputy Chiefs Bender and Lucker, Lt.
Zelt, and Sgt. Hunter collectively as the “defendant command-
                                                  (continued...)
16                                                    No. 11-2426

ant commanders, and at the close of all evidence,
the defendants renewed their motion for judgment as
a matter of law, which the district court again took
under advisement. On February 17, 2011, the jury
returned a verdict in favor of the defendant
commanders, exonerating them on all claims. In
May 2011, the district court granted judgment as a
matter of law in favor of the defendant commanders
on qualified immunity grounds.4 Final judgment
was entered in May 2011, and this appeal followed.




(...continued)
ers” because each of them held a position of command during
the Escobedo standoff. Deputy Chief Bender had overall
command authority, Deputy Chief Lucker advised him, Lt. Zelt
was in charge of the EST and put together the tactical plan to
enter Escobedo’s apartment, and Sgt. Hunter was in charge of
the CRT, which handled negotiations with Escobedo.
4
  This case presents the rare instance where judgment as a
matter of law on qualified immunity grounds is granted after
a jury verdict. The Supreme Court has “ ‘stressed the impor-
tance of resolving immunity questions at the earliest possible
stage in litigation.’ ” Saucier v. Katz, 533 U.S. 194, 200-01 (2001)
(internal citations omitted). Here, prior to trial the record was
not sufficiently developed to grant qualified immunity to
the defendants. As facts came to light at the trial, it became
appropriate to grant qualified immunity to Officers Straub,
Martin and Brown at the close of the Estate’s case, and later
to grant qualified immunity to the defendant commanders
after the jury verdict in their favor.
No. 11-2426                                              17

                    II. DISCUSSION
  The Estate urges us to reverse the district court on the
basis of five separate arguments. First, the Estate
argues that the jury verdict in favor of the defendants
should be reversed because the district court
admitted evidence unknown to the officers at the time
they used force against Escobedo. Second, the
Estate contends that the district court erred when it held
as a matter of law that the defendant commanders’
order to use force did not proximately cause Escobedo’s
death, thus preventing the jury from considering
the Estate’s wrongful death claim. Third, the Estate
urges us to reverse the district court’s grant of judgment
as a matter of law to the defendant commanders on
qualified immunity grounds because the district court
improperly weighed evidence and concluded that
Escobedo posed a threat to the public. Fourth, the
Estate seeks reversal of the district court’s grant of judg-
ment as a matter of law to Officer Straub on qualified
immunity grounds because the district court improperly
weighed the evidence and determined that Officer
Straub did not recklessly throw a flashbang grenade
near Escobedo. Finally, the Estate argues that
we should reverse the district court’s grant of summary
judgment to Officers Martin and Brown because the
district court improperly resolved conflicting credibility
issues in the officers’ favor. We address each argument
in turn.
18                                              No. 11-2426

  A. The district court did not improperly admit evi-
     dence unknown to the officers at the time they used
     force against Escobedo
  A trial court’s evidentiary rulings are reviewed for
an abuse of discretion. Hollins v. City of Milwaukee, 574
F.3d 822, 828 (7th Cir. 2009). As we have observed,
the losing party at trial “carries a heavy burden in chal-
lenging a trial court’s evidentiary rulings on
appeal because a reviewing court grants substantial
deference to the evidentiary rulings of the trial
court.” Palmquist v. Selvik, 111 F.3d 1332, 1339 (7th
Cir. 1997) (quotations omitted). “Under the applicable
standard of review, . . . reversal is warranted ‘only when
the trial judge’s decision is based on an erroneous conclu-
sion of law or where the record contains no evidence
on which he rationally could have based that
decision, or where the supposed facts found are clearly
erroneous. ’” Id. (quoting Wheeler v. Sims, 951 F.2d 796, 802
(7th Cir. 1992)). And even if we find that the district court
erred on an evidentiary ruling, we will not disturb
the judgment of the district court unless the erroneous
ruling had a “substantial influence over the jury.”
United States v. Fairman, 707 F.2d 936, 941 (7th Cir. 1983)
(citations omitted).
  The Estate challenges the jury verdict, arguing that the
district court erred in admitting evidence unknown to
the officers at the time of the shooting. Specifically, the
Estate argues that the district court should not have
allowed the defendants to introduce the following evi-
dence: (1) Escobedo’s upcoming court date and potential
No. 11-2426                                               19

five-year prison sentence for his recent substance
abuse violations; and (2) a psychological profile
of Escobedo done in 1999 by Dr. Cates. The defendants
counter that the Estate opened the door to such evidence
when Escobedo’s sister Regina Lawson (the Estate’s
first witness) testified regarding Escobedo’s state of mind
prior to the shooting. The defendants also argue
that Cates’s psychological assessment of Escobedo was
relevant to Escobedo’s mental state at the time of the
shooting.
  In challenging the district court’s evidentiary ruling, the
Estate relies on our holding Sherrod v. Berry, 856 F.2d
802 (7th Cir. 1998), arguing that Sherrod precludes the
admission of evidence unknown to an officer at the
time force is used and is therefore presumptively prejudi-
cial. The Estate reads Sherrod too broadly. There, we
clarified that “[k]nowledge of facts and circumstances
gained after the fact . . . has no place in the trial court’s
or jury’s proper post-hoc analysis of the reasonableness of
the actor’s judgment. Were the rule otherwise . . . the
jury would possess more information than the officer
possessed when he made the crucial decision.” Id. at 805.
We cautioned, however, against an overly broad reading
of that holding, noting that the decision “should not
be interpreted as establishing a black-letter rule precluding
the admission of evidence which would establish
[for example] whether the individual alleging a § 1983
violation was unarmed at the time of the incident.” Id.
at 806. And we emphasized that evidence unknown
to officers at the time they used force is admissible to
20                                               No. 11-2426

attack witness credibility and to impeach witnesses
by showing contradictions or discrepancies in testimony.
Id.
  Furthermore, evidence unknown to officers at the time
force was used is also admissible to add credibility to an
officer’s claim that a suspect acted in the manner described
by the officer. We recently held in Common v. City
of Chicago, 661 F.3d 940 (7th Cir. 2011), that “[a]s the
Sherrod court noted, . . . where the facts are controverted
in a reasonable force case, impeachment by contradiction
is allowed.” Id. at 946. In Common, officers observed
robbery suspects exiting a store, and the officers
ordered the men to stop and show their hands. Id. at 942.
One suspect, Michael Smith, failed to comply, and
grabbed for an officer’s wrist as the officer was drawing
his revolver. Id. The officer shot Smith in the chest,
and after Smith died, his estate brought a wrongful
death claim against the officer. An autopsy had revealed
that Smith had several bags of cocaine in his chest cavity
and trachea, and after a sidebar discussion, the
district court allowed that evidence to be admitted at trial,
even though the officer did not know that
information when he used force against Smith. Id.
   The jury found in favor of the officers, and Smith’s estate
appealed. Relying on Sherrod, Smith’s estate argued
that the drug evidence was inadmissible because the officer
did not know about it when he shot Smith. We upheld
its admission, however, reasoning that
  [t]he packets of drugs in Smith’s mouth made it more
  likely that Smith acted in the way that Officer Nelson
No. 11-2426                                                21

  contended he acted as opposed to the way that other
  witnesses contended he did. . . . The evidence was used
  to rebut the plaintiff’s argument that Smith exited the
  store and immediately complied with the officer’s
  direction to put his hands in the air. It was also used to
  demonstrate that Smith had a motive to turn away
  from the officer to conceal the drugs and then attempt
  to gain control of Officer Nelson’s weapon.
Id. at 947.
  This reasoning is analogous to the facts here. When
the Estate called Escobedo’s sister Regina Lawson to
the stand, she testified that Escobedo was in good spirits
and excited about what was happening in his life prior
to the shooting. The morning he was shot, however,
Escobedo called his sister before dialing 911 to tell her
that he did something stupid and was going away for
a long time. The defense sought to cross-examine Lawson
about Escobedo’s state of mind, that he had
pending criminal charges for habitual substance abuse,
that he was facing a plea hearing two days after he
was shot, and that his proposed plea agreement included
a five-year prison sentence. The Estate objected to the
line of questioning, and at sidebar conference, the defense
argued that the Estate opened the door to the subject of
the pending criminal charges when it asked Lawson
about Escobedo’s state of mind prior to the shooting.
The district court correctly ruled that because Lawson
already testified about her brother’s demeanor and state
of mind, “the defense does have an opportunity to
now examine it on cross to determine whether or not
22                                                  No. 11-2426

this witness was aware that Mr. Escobedo had these other
events and situations in his life at this same approximate
time. . . . They have a right to cross on that, because one
of the contentions is Mr. Escobedo’s state of mind as
it relates to the damages claim by [the Estate].”
   “When a party opens the door to evidence that would
be otherwise inadmissible, that party cannot complain
on appeal about the admission of that evidence.” Griffin
v. Foley, 542 F.3d 209, 219 (7th Cir. 2008) (quotations
omitted). And when a party puts evidence at issue,
that party must “accept the consequence[s]” of opening
the door to that evidence. S.E.C. v. Koenig, 557 F.3d 736,
740-41 (7th Cir. 2009). The Estate opened the door
to evidence concerning Escobedo’s state of mind when
it questioned Lawson about it, and Sherrod does not bar
the admission of Escobedo’s pending criminal charges even
though Officers Martin and Brown did not know about
Escobedo’s potential prison sentence.5 Just as we ruled
in Common, the Estate’s contention that Escobedo would
have put down his gun and voluntarily exited his apart-
ment if he had only been given more time is contradicted
by the evidence of his upcoming prison sentence.
Indeed, Escobedo’s fear of prison adds credibility to the


5
  One of the defendants, Lt. Zelt, the EST commander who
ordered Martin and the other team members to enter Escobedo’s
apartment, testified at trial that he knew of Escobedo’s criminal
record, upcoming court date, and possible prison sentence. Lt.
Zelt stated that he had reviewed Escobedo’s criminal record and
saw the information concerning his recent felony arrest and past
history of substance abuse.
No. 11-2426                                              23

testimony of Officers Martin and Brown, who testified
that Escobedo did not put down his gun despite being
repeatedly ordered to, and instead pointed it at Martin
and Brown. Furthermore, the evidence was admissible
to show Escobedo’s state of mind while he was in
his apartment and helps to show why the negotiations
with Escobedo did not seem to be proceeding. And
the defendants used this evidence to impeach Lawson’s
testimony that her brother was in good spirits prior to
the shooting. Thus, the district court did not err when
it allowed the defendants to introduce this evidence.
   Likewise, the district court did not err when it
allowed the defendants to introduce Dr. Cates’s 1999
psychological assessment of Escobedo. Similar to
its arguments concerning Escobedo’s pending criminal
sentencing, the Estate argues that Dr. Cates’s psychological
assessment was not available to the officers during
the confrontation with Escobedo, nor did Dr. Cates
provide Sgt. Hunter with any of the information
contained in the assessment when Sgt. Hunter spoke
with Dr. Cates during the negotiations. The assessment,
done in 1999 when Dr. Cates first began treating Escobedo,
revealed that Escobedo was bipolar, was subject to unpre-
d ictab le m ood sw ings, and had consid erab le
substance abuse issues. Over the Estate’s objection,
the district court permitted Dr. Cates to testify about the
psychological assessment because it was “relevant with
respect to the mental state that Mr. Escobedo presented
at the time of this incident, to the extent that it gives
a history and background, albeit, going back to 1999, it is
still relevant to what Mr. Escobedo brought into this
24                                              No. 11-2426

police incident in 2005.” The court also noted that
the assessment provided “additional background context
and understanding for the facts to which this witness
[Cates] has been called to the stand now regarding
his contact with the police, and the statements that were
made to the police upon which the police in part acted.”
  The Estate relies on our holdings in Wallace v. Mulholland,
957 F.2d 333 (7th Cir. 1992), and Rascon v. Hardiman,
803 F.2d 269 (7th Cir. 1986), to argue that evidence regard-
ing the mental health state of an individual that is un-
known to officers is inadmissible in an excessive force
case. However, neither case is applicable to the facts
here because each case involved attempts to introduce
evidence of mental illness to show that force might
be needed to deal with the individual in question.
Unlike in Wallace and Rascon, here the defendants intro-
duced the evidence about the psychological assessment
not to show that Escobedo might be aggressive when
the officers entered his room, but rather to explain
Dr. Cates’s previous testimony regarding his statements
via phone to Sgt. Hunter during the standoff—to wit, that
Escobedo was difficult to deal with when high on cocaine,
and that Dr. Cates would not have been of any
assistance during the negotiations. For that reason, the
district court did not err when it admitted Dr.
Cates’s testimony about the 1999 psychological assessment
concerning Escobedo’s mental health.
No. 11-2426                                                   25

    B. The district court committed harmless error when it
       prohibited the Estate from introducing evidence at
       trial of Escobedo’s death for purposes of calculating
       damages
  After the district court’s summary judgment order,
there remained § 1983 claims against the defendant
commanders for excessive force for ordering the use of
tear gas and for ordering the EST to enter Escobedo’s
apartment using flashbangs and additional tear gas.
At trial, the Estate sought to introduce evidence that
the defendant commanders’ decision proximately caused
Escobedo’s death. The district court prohibited it
from doing so, and on appeal, the Estate argues that
the district court’s refusal to allow it to pursue its theory
prejudiced the Estate’s case and resulted in an unfair
trial. Essentially, the theory the Estate wished to pursue
at trial runs as follows: The defendant commanders
decided to end negotiations and deployed tear gas and
the EST against Escobedo. As a result, they set off a
chain of events that substantially increased the risk
that Escobedo would be harmed or killed by the EST,
and thus proximately caused Escobedo’s death.
  The Estate’s argument is incorrect. Under § 1983, the
defendant commanders could have been held liable for
setting off a chain of events that led to a violation
of Escobedo’s constitutional right to be free from
excessive force, not for his death.6 See Jones v. City of Chi.,


6
 The Estate continually referred to its theory as its “wrongful
death” claim against the defendant commanders, but then stated
                                                   (continued...)
26                                                  No. 11-2426

856 F.2d 985, 992-93 (7th Cir. 1988) (discussing the
liability of supervisors in the context of violations of
constitutional rights); see also Robertson v. Wegmann,
436 U.S. 584, 589-90 (1978) (“As we noted . . . one specific
area not covered by federal law is that relating to
the survival of civil rights actions under § 1983 upon
the death of either the plaintiff or defendant.”) (citations
and quotations omitted); McAllister v. Price, 615 F.3d
877, 882 (7th Cir. 2010) (under the Fourth Amendment,
the injury or death of an individual does not affect the
substance of a § 1983 claim for excessive force, but
rather is relevant as evidence of the reasonableness of
the force). Thus, the district court was correct in prohibit-
ing the Estate from arguing that the defendant command-
ers’ decision proximately caused Escobedo’s death, and
it properly instructed the jury to consider whether the
defendant commanders’ actions led to a violation
of Escobedo’s constitutional rights, rather than whether
those actions led to Escobedo’s death.




(...continued)
in its Reply Brief that “Plaintiff has used ‘wrongful death’ as
short-hand to refer to her argument that liability for Escobedo’s
death should be imposed on the Defendant-Commanders for
the use of tear gas and flash-bangs. This was not intended as
an assertion that this was a separate substantive claim.” [App.
Rep. Br. at 16 n.2.] The Estate also acknowledged that “[t]here
is no such thing a s a claim under the Fourth Amendment for
‘wrongful death.’” [App. Rep. Br. at 15.] Unfortunately, this
belated acknowledgment caused unnecessary confusion before,
during, and after the trial.
No. 11-2426                                                27

   The district court committed harmless error, however,
when it prohibited the Estate from introducing evidence
of Escobedo’s death for purposes of calculating the dam-
ages that resulted from the violation of Escobedo’s consti-
tutional rights (if the jury were to find that Escobedo’s
rights were in fact violated). We have held that an
“estate bringing a decedent’s § 1983 claims may
seek damages allowable under a state wrongful
death statute.” Ray v. Maher, 662 F.3d 770, 774 (7th Cir.
2011). Indiana permits recovery for damages caused by
an individual’s wrongful acts or omissions that led to
the decedent’s death, including “[r]easonable medical
expenses, hospital, funeral, and burial expenses . . . .” Ind.
Code. § 34-23-1-2(c). Thus, if the defendants’ acts were
found to be excessive, the Estate would have been allowed
to present evidence of Escobedo’s death to demonstrate
the full scope of the injuries he sustained and to advance
its theory that the defendant commanders proximately
caused those injuries. See Guzman v. City of Chi., 689
F.3d 740, 745-46 (7th Cir. 2012) (“[L]iability must be
resolved before the question of damages is reached.”);
see also Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044
(7th Cir. 2002) (“[T]he ordinary rules of tort causation
apply to constitutional tort suits.”); Henderson v.
Sheahan, 196 F.3d 839, 848 (7th Cir. 1999) (“[A] plaintiff
must demonstrate both that he has suffered an ‘actual’
present injury and that there is a causal connection be-
tween that injury and the deprivation of a constitutionally
protected right caused by a defendant.”).
  Here, however, the error was harmless because the jury
exonerated the defendant commanders of any liability.
28                                               No. 11-2426

Thus, the jury did not need to determine whether the
defendant com m anders’ decision to use force
against Escobedo proximately caused Escobedo’s damages.
See Guzman, 689 F.3d at 745. Because we hold that
the district court’s error was harmless, we decline to vacate
the jury’s verdict and order a new trial.


  C. The district court did not err when it granted
     judgment as a matter of law on qualified immunity
     grounds to the defendant commanders
  We next consider the Estate’s challenges to the district
court’s grant of judgment as a matter of law to the defen-
dant commanders on the basis of qualified immunity.
We review de novo a district court’s grant of judgment
as a matter of law. Zimmerman v. Chi. Bd. of Trade,
360 F.3d 612, 623 (7th Cir. 2004). Judgment as a matter
of law is appropriate when there is “no legally sufficient
evidentiary basis for a reasonable jury” to find for the non-
moving party. Id. We do not weigh the evidence or
the credibility of the witnesses, but “there must be more
than a mere scintilla of evidence” in support of the non-
moving party’s case to justify reversing the grant
of judgment as a matter of law. Id.
  The district court’s grant of judgment as a matter of
law in favor of the defendant commanders on qualified
immunity grounds came after the jury found that none
of the defendant commanders violated Escobedo’s consti-
No. 11-2426                                                  29

tutional right to be free from excessive force.7 The district
court granted qualified immunity to the defendant com-
manders based on their decision, after three hours
of unsuccessful negotiations by the CRT with Escobedo
to persuade him to put down his gun and exit his apart-
ment, to use a tactical response to remove him from
the apartment. The district court’s decision also granted
qualified immunity to the defendant commanders
with respect to their decisions to allow the entry team to
use tear gas and flashbang grenades when the team
entered Escobedo’s apartment. The district court ruled
that the Estate had failed to show that reasonable officers
would have acted differently under the circumstances.
  We review the validity of a qualified immunity defense
de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). Because
there was a jury verdict in favor of the defendant com-
manders prior to the grant of judgment as a matter of
law, we construe the evidence in the light most favorable
to them. See Jarrett v. Town of Yarmouth, 331 F.3d 140,
147 (1st Cir. 2003), cert. denied, 540 U.S. 1017 (2003) (“When
a qualified immunity defense is pressed after a jury
verdict, the evidence must be construed in the light most
hospitable to the party that prevailed at trial . . . and
deference should be accorded to the jury’s discernible
resolution of disputed factual issues.”) (internal quotations
omitted).
   Qualified immunity shields government officials from
liability under Section 1983 “for actions taken while


7
  As we noted above, this is unusual, but the district court was
free to do so under Fed. R. Civ. P. 50(a)(2) and (b)(3).
30                                                No. 11-2426

performing discretionary functions, unless their conduct
violates clearly established statutory or constitutional
rights of which a reasonable person would have
known.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1022
(7th Cir. 2000). It protects “all but the plainly incompetent
or those who knowingly violate the law. . . . If officers
of reasonable competence could disagree on the issue
[of whether or not an action was constitutional], immunity
should be recognized.” Malley v. Briggs, 475 U.S. 335,
341 (1986). When performing discretionary functions,
governmental actors accused of using excessive force
are entitled to qualified immunity and are thus shielded
from liability, unless the plaintiff can show a violation
of a constitutional right and demonstrate that the right
in question was clearly established at the time of the
alleged violation. Saucier v. Katz, 533 U.S. 194, 201-02
(2001).
  When analyzing a qualified immunity defense, courts
consider whether the facts alleged demonstrate a constitu-
tional violation, and whether the constitutional right was
clearly established. Pearson v. Callahan, 555 U.S. 223,
232 (2009). A constitutional right is clearly established
when “it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202; see also Escobedo I, 600 F.3d at
779 (“For a constitutional right to be clearly established, its
contours must be sufficiently clear that a reasonable
official would understand that what he is doing violates
that right.”) (quotations omitted).
  Once the defense of qualified immunity is raised, “it
becomes the plaintiff’s burden to defeat it.” Wheeler v.
No. 11-2426                                                 31

Lawson, 539 F.3d 629, 639 (7th Cir. 2008). Thus, the Estate
has the burden to show that Escobedo had clearly estab-
lished rights that the defendants violated. Boyd v.
Owen, 481 F.3d 520, 526 (7th Cir. 2007); see also Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (“Although
nominally an affirmative defense, the plaintiff has the
burden to negate the assertion of qualified immunity.”).
   The district court granted judgment as a matter of law
on qualified immunity grounds to the defendant com-
manders on the second prong, finding that Escobedo
did not have a clearly established constitutional right to
be free from the deployment of the Emergency Services
Team, the use of tear gas, or the use of flashbang grenades
because there was a lack of clearly existing law
regarding their use and because no “patently obvious”
violations occurred. The district court had initially denied
qualified immunity to the defendant commanders at
the summary judgment stage (and we affirmed that
denial, see Escobedo I, 600 F.3d at 770). Specifically, regard-
ing the use of tear gas, this court in Escobedo I stated that
it was clearly established that the use of tear gas is unrea-
sonable “when the individual does not pose an actual
threat.” Id. at 783. At summary judgment, the issue
of whether Escobedo posed an actual threat was un-
clear—potential traffic problems and officer fatigue
appeared to be the defendant commanders’ only concerns.
Id.
  However, facts emerged at trial that caused the district
court to conclude that “the police had a much greater
concern that Escobedo was an imminent threat to others,”
32                                              No. 11-2426

thus changing its conclusion on the qualified immunity
question. The district court based this finding on several
factors: Escobedo was on the seventh floor of a
building that was surrounded by other buildings, includ-
ing a hospital and a church with a daycare center;
Escobedo occupied an elevated position wielding a
handgun with a long effective range; and the commanders’
expressed desire that the tactical solution take place
after most of the morning rush hour had finished.
  The Estate’s challenge centers on whether the defendant
commanders were entitled to qualified immunity
for ending negotiations and initiating a tactical response
that included the use of tear gas and flashbang grenades.
Its argument hinges on its contention that Escobedo
did not present an actual danger. The Estate attempts to
use the testimony of Deputy Chief Bender, Lt. Zelt, and
the other commanders to show that any danger
Escobedo posed was purely hypothetical (e.g., Deputy
Chief Bender testified that there was a possibility
that Escobedo had other firearms and that it was possible
that Escobedo could go into an “active shooting mode”
or “could possibly discharge a weapon,” etc.). But the
only proof the Estate offers in support of its argument is
that Escobedo repeatedly said that he did not want
to harm anyone and that he in fact did not harm anyone.
Negotiations had been ongoing for nearly four hours when
Deputy Chief Bender, after considering that Escobedo was
high on cocaine, was wielding a powerful handgun with a
long range, and had a clear view of the surrounding
buildings, gave the order for Lt. Zelt to prepare a tactical
response. The district court thus correctly concluded that
No. 11-2426                                             33

“the trial record shows that the police had a much
greater concern that Escobedo was an imminent threat to
others” than was apparent at the summary judgment
stage of the proceedings.
   The Estate also attacks the decision to use tear
gas against Escobedo, but both the defendants’ expert
witness, Ronald McCarthy, and the Estate’s expert
witness, Larry Danaher, testified that once a decision to
employ a tactical solution is made, the next appropriate
step is to use tear gas. Danaher also testified that
the decision to move from negotiations to a tactical solu-
tion requires an exercise in judgment by the commanders
at the scene, and once that decision was made, Lt.
Zelt’s tactical plan and its execution by the team was
proper. The district court quoted Deputy Chief Bender’s
trial testimony at length, citing to the multiple public
safety factors he considered when deciding to use tear
gas. Because of those safety concerns, the district court
concluded that “Escobedo did not have a clearly estab-
lished right to be free from the deployment of tear
gas.” The evidence the district court relied on when it
granted summary judgment in favor of the defendant
commanders on qualified immunity grounds demonstrates
that a reasonable commander could believe that Escobedo
posed an actual threat, and that decision is precisely
what qualified immunity protects. Thus, the district court
did not err when it granted judgment as a matter of law
in favor of the defendant commanders after the jury
verdict in favor of the defendants.
  The Estate also argues that the district court erred in
ruling that the defendant commanders had qualified
34                                                No. 11-2426

immunity regarding the amount of tear gas used. Its
challenge centers on the fact that as much as twelve
times the incapacitating level of tear gas was deployed
against Escobedo. At trial, however, Lt. Zelt and the
experts testified that “an incapacitating level of tear gas”
is a misleading unit. Zelt testified that tear gas is “incapac-
itating” when an individual can no longer remain inside
a structure. Danaher, the Estate’s own expert, testified that
tear gas is frequently used by police in barricaded suspect
situations and that an “incapacitating” amount of tear
gas means an amount sufficient to make the suspect feel
uncomfortable but not render him unconscious. McCarthy,
the defendants’ expert, agreed, noting that the calculation
of an incapacitating level was an old mathematical formula
and that it would not have any bearing on determining
whether the amount of tear gas used in a given situation
was reasonable under the circumstances. McCarthy also
testified that the study that had been done to determine
how much tear gas constituted an “incapacitating” amount
had been “thoroughly discredited.” And the fact
remains that, despite the large amount of tear gas de-
ployed against Escobedo, he did not exit his apartment
but instead sat down in his closet behind a barricaded
door. For these reasons, the evidence presented at trial
supports the district court’s conclusion that reasonable
commanders could have believed that the amount of
tear gas used here was appropriate under the circum-
stances. Therefore, the district court did not err when it
ruled that the defendant commanders were entitled to
qualified immunity.
  The Estate also challenges the commanders’ decision to
use flashbang devices, again arguing that Escobedo was
No. 11-2426                                                 35

not dangerous. The Estate looks to our opinion affirming
the district court’s summary judgment decision denying
qualified immunity to the defendant commanders, where
we held that the use of a flashbang was an unreasonable
use of force when
  it was clearly established as of July 19, 2005, that
  throwing a flash bang device blindly into an apartment
  where there are accelerants, without a fire extin-
  guisher, and where the individual attempting to be
  seized is not an unusually dangerous person, is not the
  subject of an arrest, and has not threatened to harm
  anyone but himself [. . .].
Escobedo I, 600 F.3 at 786. The key language here is “not
an unusually dangerous person.” When we affirmed the
district court’s summary judgment ruling, the
facts concerning the degree of danger Escobedo presented
were not nearly as developed as they were after trial.
The district court concluded that the evidence at
trial showed that Escobedo did in fact pose an actual
threat, and granted qualified immunity to the commanders
on that basis. In addition to the evidence noted above,
the district court also cited to Lt. Zelt’s testimony regard-
ing his concerns about Escobedo’s hallucinations.
Several times during his conversation with the negotiators,
Escobedo stated that police were inside his apartment
or right outside his window. Lt. Zelt testified that it was
possible that Escobedo might shoot at the imaginary
officers and strike someone outside the apartment.
Escobedo also told negotiators that he had a knife
in addition to his firearm, thus making him potentially
36                                               No. 11-2426

more dangerous, and that he might come out of the
apartment with his gun. The Estate’s expert Danaher
conceded that if Escobedo did exit the apartment with
his gun, that would increase the likelihood that an inno-
cent bystander could be shot. And even if Escobedo
never intended to harm anyone but himself, the fact that
he barricaded himself into his apartment made him
dangerous to anyone attempting to enter the apartment to
remove him from it. Danaher testified that, because
Escobedo had barricaded himself, he created a “fatal
funnel”—the area of an entryway where a tactical team
might be shot at as they are coming through the door.
Danaher agreed that it was appropriate for officers to
use flashbangs to disorient a suspect wielding a gun
to give officers time to get through the door and avoid
being shot. He further agreed that because the door
was barricaded, it was appropriate for the team to use a
flashbang prior to entering the bedroom.
  In light of this evidence, the district court observed that
the trial testimony “provided a clear picture of a potential
threat Escobedo posed even though he did not make any
explicit verbal threats against others. Even though
Escobedo did not issue any explicit verbal threats to
the public or the police, the court finds that Escobedo
was unusually dangerous and thus did not have a clearly
established constitutional right to be free from the use
of flashbangs.” For these reasons, the district court did not
err when it granted qualified immunity to the defendant
commanders regarding the use of flashbang grenades
against Escobedo.
No. 11-2426                                              37

 D. The district court did not err when it granted
    judgment as a matter of law on qualified immunity
    grounds to Officer Straub
  All of the defendants moved for judgment as a matter of
law at the close of the Estate’s case, and at this point
the district court granted judgment as a matter of law
in favor of all the team members who entered Escobedo’s
apartment (Officers Martin, Brown, and Straub, and
Sgt. Selvia). Of those defendants, the Estate challenges
only the district court’s grant of judgment as a matter
of law to Officer Straub on his use of the second flashbang
when the team entered Escobedo’s bedroom. The standard
of review articulated above remains the same: we review
de novo a district court’s grant of judgment as a matter
of law, and it is appropriate when there is “no legally
sufficient evidentiary basis for a reasonable jury” to
find for the non-moving party. Zimmerman, 360 F.3d at
623. However, because the district court granted judgment
as a matter of law in favor of Officer Straub at the close
of the Estate’s case (and thus prior to the jury verdict
in favor of the defendant commanders), we construe
the evidentiary record in the non-moving party’s favor
(here, the Estate’s). See id. The Estate argues that
the district court improperly weighed the evidence and
should have found that Straub’s use of the second
flashbang before breaching Escobedo’s bedroom consti-
tuted excessive force. We disagree.
  The Estate’s argument turns on the fact that Straub threw
the flashbang into the bedroom without first determining
where Escobedo was located in the room. The Estate
38                                               No. 11-2426

relies on our opinion in the first appeal of this case, where
we suggested that
  the use of a flash bang grenade is reasonable only
  when there is a dangerous suspect and a dangerous
  entry point for the police, when the police have
  checked to see if innocent individuals are around
  before deploying the device, when the police have
  visually inspected the area where the device will be
  used and where the police carry a fire extinguisher.
Escobedo I, 600 F.3d at 784-85 (citing United States v.
Morris, 349 F.3d 1012 n.1 (7th Cir. 2003)).
  The Estate reads this to mean that a flashbang can
be used only after the police have had an opportunity
to visually inspect the area where it will be used.
We believe that the Estate’s categorical reading of
the language in Escobedo I is incorrect (and indeed,
we stressed that our ruling in Escobedo I was confined
to the facts of the case as presented at summary judgment
in the light most favorable to the Estate, see id. at 786).
The considerations enumerated in Escobedo I should
be construed as a non-exhaustive list of factors for a
district court to consider when determining whether
the use of a flashbang grenade in a given set of circum-
stances was appropriate, not a bright-line test in which
the absence of any one factor dooms an officer’s use of
a flashbang as unreasonable. There are many situations
where a visual inspection of a room prior to deploying
a flashbang is impossible or extremely dangerous, such
as when the entrance to a room is barricaded or defended
by an armed individual (as occurred here). Reading the
No. 11-2426                                                39

Escobedo I factors categorically would mean that police
would potentially have to expose themselves to gunfire
to visually inspect the area where a flashbang is to be
deployed prior to using it. This places officers in a precari-
ous position, and forces them to surrender the very tactical
advantages— nam ely, su rp rise an d te m p orarily
disabling the dangerous individual—they hope to gain by
deploying a flashbang.
   The facts that emerged at trial indicate that the officers
believed that Escobedo was unusually dangerous, as
he was hallucinating, high on drugs, and wielding a
handgun; the room the team was trying to enter was
dark and barricaded; and the doorway itself created
a “fatal funnel” through which each officer would have
to pass while Escobedo could have shot them. For
those reasons, we hold that the facts in this case
indicate that the choice to deploy a flashbang without first
inspecting the barricaded room into which it was
thrown was reasonable, and that Escobedo did not have
a clearly established constitutional right to be free from
the use of a flashbang.
  Indeed, the Estate’s own expert, Danaher, conceded that
once the team was given the command to enter the apart-
ment, they acted consistent with their training and per-
formed as expected. In reaching its decision to
grant qualified immunity to the team members, the district
court first found that Escobedo was dangerous
and presented a threat to the officers and the public. As
Lt. Zelt testified, Escobedo had been suffering from
hallucinations of imaginary officers in his apartment,
40                                               No. 11-2426

and those hallucinations made Escobedo dangerous
because he could have opened fire at any time.
And Danaher agreed that an officer would have to
throw the flashbang into the bedroom without first
determining where Escobedo was located because the
door was barricaded. It was unfortunate that the flashbang
landed near Escobedo, but Danaher conceded that
there was no way Straub could control where the
flashbang landed, and the district court agreed with
Danaher’s assessment. As we noted above, because
the district court found that Escobedo was unusually
dangerous, he “did not have a clearly established constitu-
tional right to be free from the use of flashbangs.”
Thus, the district court did not err when it granted judg-
ment as a matter of law on qualified immunity grounds to
Straub for his use of the second flashbang.


  E. The district court did not err when it granted
     summary judgment in favor of Officers Martin and
     Brown on the Estate’s excessive force claim for
     shooting Escobedo
  As we noted above, since the Estate is also appealing
the district court’s grant of summary judgment in favor
of Officers Martin and Brown on the use of lethal force,
we must consider the facts available to the district court
at the summary judgment phase in the light most favorable
to the non-moving party (here, the Estate), and ignore
the facts that came to light only during the trial.
See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2007).
We review a district court’s grant of summary judgment
No. 11-2426                                                   41

de novo. Jordan v. City of Gary, 396 F.3d 825, 831 (7th Cir.
2005). We have cautioned that
  [t]he award of summary judgment to the defense in
  deadly force cases may be made only with particular
  care where the officer defendant is the only witness left
  alive to testify. . . . [A] court must undertake a fairly
  critical assessment of the forensic evidence, the offi-
  cer’s original reports or statement and the opinions of
  experts to decide whether the officer’s testimony could
  reasonably be rejected at trial.
Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994). How-
ever, this does not relieve the Estate of its burden to
“submit evidentiary materials that set forth specific facts
showing that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2007) (quotations
omitted).
  We accept the version of the facts as distilled by
the district court in its summary judgment order,
Escobedo v. City of Fort Wayne, et al., No. 1:05-CV-424-TS,
2008 U.S. Dist. WL 1971405 (N.D. Ind. May 5, 2008).
The record reveals the following: As Westfield, Lee,
Straub, Selvia, Brown, and Martin entered the bedroom,
they observed that the door had been barricaded with
a large bed frame, and the room was dark with poor
visibility. During their entry, Escobedo continued to
yell that he had a gun and that it was pointed at his head.
Officer Martin entered the room last and moved to
the right. Martin said he believed that “I was going to get
shot or the two guys [Westfield and Lee] were going
to probably go down the minute we made entry into that
room.”
42                                            No. 11-2426

   Using his flashlight, Officer Martin saw Escobedo
sitting on the ground in the closet with his legs extended
in front of him. Escobedo was pointing his gun
upside down at his head with his left hand, and the
hammer on Escobedo’s gun was cocked. Martin an-
nounced several times that Escobedo was in the closet and
that he was pointing a gun at his own head. Martin
then ordered Escobedo to drop his gun several times, and
Escobedo began to lower his gun “towards me, pointing
it at me.” At that point, Martin said he fired because he
was in fear of his own life as he was afraid he would be
shot or another officer would be shot.
  Before Officer Martin opened fire, as Martin pointed his
gun and flashlight at Escobedo inside the closet, Officer
Brown moved forward, positioning himself to Martin’s
left. When Sgt. Selvia heard Martin’s commands
to Escobedo, he yelled for Brown to fire his Sage at
Escobedo to disarm him. But “[a]bout the time that came
out of my mouth, Officer Martin had already started
to shoot.” Selvia described Martin shooting and his
own command to Brown as “simultaneous.”
   After the first volley, Escobedo dropped the gun
between his legs. Both officers observed Escobedo reach
and/or lean forward in an apparent attempt to pick up the
gun. Martin said that Escobedo “leaned forward with
both hands towards the gun and I felt he was going to
pick the gun up and try to shoot.” Straub thought that he
heard Martin say something such as “don’t,” or “stop,” in
between the volley of shots. Martin and Brown then
fired a second volley. Martin fired a total of nine or ten
No. 11-2426                                              43

shots during the entire incident, and Brown fired a total
of six times. See generally Escobedo, 2008 U.S. Dist.
WL 1971405, at *15-17.
  The Estate contends that material questions of fact
exist about whether Escobedo pointed his gun at Officer
Martin prior to Martin shooting him. The Estate points
out that the Fort Wayne Police Department’s test of
Escobedo’s gun found no latent fingerprints on it. How-
ever, this evidence was known to the Estate prior
to summary judgment but the Estate did not submit it
in its response to the defendants’ motion for summary
judgment. As the district court correctly held in its order
denying the Estate’s motion for reconsideration, “the
Plaintiff cannot use and the Court cannot consider
this evidence . . . because the Plaintiff was able to use it
during summary judgment (but chose not to) and it is
not ‘newly discovered evidence.’ ” Thus, it cannot be
considered when reviewing the district court’s grant
of summary judgment and its denial of reconsideration.
See Heft v. Moore, 351 F.3d 278, 281 n.1 (7th Cir. 2003);
see also Fed. R. App. P. 10(a)(2).
  The Estate also argues that there is “substantial circum-
stantial evidence” that Escobedo did not aim the gun
at Officer Martin, highlighting the fact that Escobedo
never threatened anyone but himself and the fact that
Escobedo repeatedly said that he did not want to
hurt anyone. The Estate also points to the deposition
testimony of the forensic pathologist who performed
Escobedo’s autopsy, Dr. Carpenter, to cast doubt
on whether Escobedo pointed his gun at the officers. Dr.
44                                              No. 11-2426

Carpenter testified that he could not determine
whether Escobedo extended his arm toward Officer Martin
or whether his arm was in that position before Martin
and Officer Brown began firing. Additionally, the Estate
challenges the credibility of the accounts Officers Martin
and Brown gave of the shooting. In the post-shooting
interview with the Fort Wayne Police Department’s
Internal Affairs department, Officer Martin said that
when Escobedo lowered the gun from his head, he held
it six to eight inches from his chest. Officer Brown, how-
ever, stated that Escobedo’s arm was almost fully ex-
tended, approximately one to two feet from his chest.
   None of these arguments is availing. The fact
that Escobedo did not threaten anyone during the negotia-
tion process does not thereby mean that he did not
point the gun at Martin when the team entered his bed-
room. It does not contradict Martin’s or Brown’s
accounts of the shooting, and it does not even call it into
doubt. Likewise, Dr. Carpenter’s deposition testimony
does not contradict the accounts of Martin and Brown.
It merely states that the autopsy was inconclusive on the
position of Escobedo’s arm. Finally, the discrepancy in
Officer Martin’s and Officer Brown’s accounts of the
shooting regarding how far Escobedo extended his
arm from his chest is so minor that it hardly merits consid-
eration. In a dark room filled with tear gas, it would
be difficult to ascertain the precise distance at which
Escobedo was extending his arm. In short, none of
the evidence highlighted by the Estate creates a genuine
issue of material fact. Even the most generous reading
of these facts in favor of the Estate does not merit a
No. 11-2426                                              45

rejection of the officers’ testimony regarding Escobedo’s
actions during the shooting. The district court
correctly observed that the Estate’s evidence did nothing
more than “highlight minor differences and discrepancies
in the Defendants’ accounts,” which was not sufficient
to “survive summary judgment or win a motion to recon-
sider.” For those reasons, we affirm the district court’s
grant of summary judgment in favor of Officers Martin
and Brown on the Estate’s excessive force claims.


                           III.
  For the foregoing reasons, we A FFIRM the jury verdict in
favor the defendants, we A FFIRM both the district court’s
grant of judgment as a matter of law on qualified immu-
nity grounds to Officers Straub, Martin, and Brown, as
well as the post-verdict grant to Deputy Chief Bender,
Deputy Chief Lucker, Sgt. Hunter, and Lt. Zelt, and we
A FFIRM the district court’s grant of summary judgment in
favor of Officers Martin and Brown on the Estate’s exces-
sive force claim.




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