                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                  File Name: 15a0227p.06

                 UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


 ROBERT CARLSON, Personal Representative of the ┐
 Estate of Craig Carlson,                          │
                              Plaintiff-Appellant, │
                                                   │         No. 13-2643
                                                   │
         v.                                        >
                                                   │
                                                   │
 SCOTT FEWINS; CHARLES JETTER, Individually and │
 Officially; GRAND TRAVERSE COUNTY, a Municipal │
 Corporation; STEVE DRZEWIECKI, Individually and │
 Officially,                                       │
                           Defendants-Appellees. │
                                                   ┘
                        Appeal from the United States District Court
                   for the Western District of Michigan at Grand Rapids.
              No. 1:08-cv-00991—Paul Lewis Maloney, Chief District Judge.
                                Argued: April 29, 2015
                         Decided and Filed: September 11, 2015

        Before: COLE, Chief Judge; MERRITT and BATCHELDER, Circuit Judges.

                                  _________________

                                      COUNSEL

ARGUED: Mark R. Bendure, BENDURE & THOMAS, Detroit, Michigan, for Appellant.
Christopher Kevin Cooke, COOKE LAW, PLLC, Traverse City, Michigan, for Appellees
Fewins, Jetter, and Grand Traverse County. Mary Massaron, PLUNKETT COONEY,
Bloomfield Hills, Michigan, for Appellee Drzewiecki. ON BRIEF: Mark R. Bendure,
BENDURE & THOMAS, Detroit, Michigan, for Appellant. Christopher Kevin Cooke, COOKE
LAW, PLLC, Traverse City, Michigan, for Appellees Fewins, Jetter, and Grand Traverse
County. Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellee
Drzewiecki.




                                            1
No. 13-2643                                  Carlson v. Fewins, et al.                           Page 2

                                              _________________

                                                     OPINION
                                              _________________

         MERRITT, Circuit Judge. This is a Fourth Amendment, constitutional tort case brought
under 42 U.S.C. § 19831 against Grand Traverse County, its sheriff, and other officers whose
activities on the evening of November 9, 2007, and the next morning, ended in the death of Craig
Carlson at his house. In Johnson v. United States, 333 U.S. 10, 13–15 (1948), the Supreme
Court pointed out succinctly the function of the Fourth Amendment warrant requirement2 as an
instrument designed to force law enforcement agencies to seek review and regulation of their
proposed conduct by an independent judicial officer, despite its “inconvenience to the officers
and some slight delay”:

         The point of the Fourth Amendment, which is often not grasped by zealous
         officers, is not that it denies law enforcement the support of the usual inferences
         which reasonable men draw from evidence. Its protection consists in requiring
         that those inferences be drawn by a neutral and detached magistrate instead of
         being judged by the officers engaged in the often competitive enterprise of
         ferreting out crime.

See also Riley v. California, 134 S. Ct. 2473, 2482 (2014) (quoting Johnson, 333 U.S. at 14).

         Approximately sixty police officers converged on Craig Carlson’s house beginning
around 9:00 p.m. after telephone calls from family members indicated that Carlson, who was
armed and dangerous, was threatening suicide while alone in his house. The next morning, hours
after their last contact with Carlson, officers broke the windows and flooded the house with tear
gas. The gas did not drive Carlson from his house as the officers intended. When Carlson
finally reacted, hours later, he began shouting and threatening officers in his yard. A sniper, who




         1
          “Every person who, under color of [law], subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .” 42 U.S.C. § 1983.
         2
          “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath
or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S.
Const. amend. IV.
No. 13-2643                           Carlson v. Fewins, et al.                  Page 3

believed Carlson was preparing to shoot one of those officers, shot through a window, killing
Carlson.

       The district court granted summary judgment to the county and the officers in charge of
the operation who did not seek a warrant allowing them to attack Carlson’s house with tear gas
or seize him inside. We reverse this ruling and remand for a jury trial. The district court did not
grant summary judgment in the case against the sniper who killed Carlson, but a jury returned a
verdict in his favor. Carlson’s Estate appealed various rulings in the jury trial, but we find no
error and affirm the judgment below in that case.

                                      I. Factual Background

       Supreme Court precedent instructs us to extend the normal benefits of “all justifiable
[factual] inferences” to the nonmovant plaintiffs when reviewing a grant of summary judgment
for the defendants. Tolan v. Cotton, 572 U.S. ___, ___, 134 S. Ct. 1861, 1863 (2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Accordingly, we recount the facts
of this case in the light most favorable to Carlson’s Estate.

       The decedent, Craig Carlson, called 911 at 8:30 on the evening of November 9, 2007, and
requested a visit from a deputy to “talk.” Deputy Jason Hamilton had conducted similar “welfare
checks” on Carlson the week before in response to calls from an anonymous caller and Carlson’s
sister, Jaqueline Smith, who each expressed concern that depression, a recent job loss, and
pending domestic violence charges might lead Carlson to hurt himself. On those prior occasions,
Hamilton noted that Carlson seemed intoxicated but “very passive.” Following those visits and a
conversation in which Smith indicated that Carlson was well armed and might get in a shootout
with police if they tried to take him into custody, Hamilton had filed an internal report to help
other officers respond appropriately to any future calls.

       Smith also called 911 on November 9th to get help for her brother because she believed
that he intended to die, perhaps by provoking a shootout. According to Smith, Carlson’s “guns
[we]re loaded” and he was “ready to die and put a bullet in his heart.” Smith explained:

       He said he has one [gun] just empty and he’s going to point it intentionally
       because he is dying tonight one way or another whether they shoot him or not and
       if they don’t, he has guns hidden all over the house . . . everywhere that are loaded
No. 13-2643                                 Carlson v. Fewins, et al.                           Page 4

         and if he has to he’ll shoot somebody in the knee or the arm forcing them to take
         him out.

She reported that Carlson had “like 2,000 rounds of ammunition.” Robert Carlson—Carlson’s
brother and the personal representative of the Estate in this action—also called 911 that evening,
reiterating his sister’s concerns and reporting that Carlson had “already paid for his funeral.”
The family’s calls indicated that Carlson “probably [wa]s armed and dangerous . . . [a]nd[]
wanting probably to provoke an officer into shooting him so he wo[uld]n’t have to do it himself,
shoot himself.”

         Concerned that Carlson might try to provoke a shooting, a dispatcher called Carlson to let
him know that a deputy sheriff was going to visit him and that the deputy would want to talk
outside. Carlson rejected that idea, explaining that he had refreshments available (“pop, beer or
coffee”) and that he “ha[d] no desire, this is not a, I want to shoot you, you shoot me thing.”
Carlson eventually spoke with a state trooper by phone and reportedly felt better after discussing
his problems.

         Officers began arriving at Carlson’s house at around 9:00 p.m.3 They parked down the
street to avoid detection and walked to the house. Carlson’s house was well lit, and unobstructed
windows provided a clear view into the house. The first two officers reported seeing Carlson in
his basement loading a “long gun” and later putting a pistol to his own head. They waited
outside in the dark for backup.

         As more officers arrived, two took positions at the rear of the house to prevent Carlson
from escaping unobserved. One of those officers saw Carlson open his sliding back door and
fire a single shot into the woods shortly after 10:00 p.m. The parties agree that Carlson was
unaware of the officers’ locations at that time and was shooting to draw attention, though
testimony from officers suggests Carlson may have believed they were near enough to hear him.
The parties also agree that this was the only shot Carlson fired.



         3
          The precise timing during the standoff is unclear. For example, the officers’ testimony suggests they
began arriving at 9:30 p.m., but the family testimony refers to “officers running around with their guns, putting
lights up” as early as “around [nine] o’clock.” The parties agree on the general arc of the conflict, and any disputes
about precise timing are not dispositive. If they were, we would, of course, resolve any reasonable disputes in favor
of the Estate at summary judgment.
No. 13-2643                          Carlson v. Fewins, et al.                  Page 5

       Shortly thereafter, at Grand Traverse County Sheriff Scott Fewins’s request, a large
interdepartmental “Emergency Response Team” led by Traverse City Police Sergeant Steve
Drzewiecki converged on Carlson’s house. This Team included approximately sixty officers
from various agencies with special training in weapons and tactics appropriate for potentially
volatile encounters. They surrounded the house, working in shifts to maintain a secure perimeter
throughout the cold November night. The Team flattened the tires on Carlson’s truck to prevent
him from escaping. They also escorted Carlson’s neighbors to safety, leaving only a disabled
man who spent the night in his basement with his wife until tear gas deployed against Carlson
forced him to leave the area the following morning.

       At the instruction of Fewins and Drzewiecki, a police negotiator telephoned Carlson at
11:30 p.m. and asked how they could resolve the situation. Carlson asked again for an officer to
come inside and talk with him. The negotiator conferred with Fewins who rejected that plan,
citing the prior shot into the woods. The negotiator reconnected with Carlson and explained that
the prior gunshot made it impossible for an officer to come inside to speak with him. Carlson
denied firing the gun and denied wanting to harm anyone. The negotiator confirmed the officers’
reports of the gunshot and the weapons and called Carlson back. During the third call with the
negotiator, Carlson became agitated and threatening.       According to the negotiator, Carlson
claimed falsely to have been a sniper in Beirut but still insisted that he did not want to hurt
anyone. Carlson continued to ask to speak with an officer in person but also said he was ready
for “war.”

       The Team shut off Carlson’s gas line to deprive him of heat and set up lights to
illuminate his house. They cut his electrical power. The negotiator testified that Carlson said, “I
know at some point you are going to deploy tear gas, and when you do, that will be the start of
the war. And I’m going [to] kill everybody.” Carlson refused to answer the negotiator’s calls
after 3:30 a.m., but he continued making calls to his sister, leaving eleven voicemail messages in
the early hours of November 10. She testified that 911 dispatchers asked her not to answer those
calls, and she complied.

       The Team maintained the siege of the house all night without seeking a warrant. They
did request and receive coffee, granola bars, and hot chocolate. Fewins later indicated that he
No. 13-2643                          Carlson v. Fewins, et al.                   Page 6

never considered asking for a warrant because he believed it was unnecessary. Asked to explain
why he would not need a warrant to arrest Carlson in his home, Fewins referred to his earlier
speculation that the shot into the woods might have constituted “reckless discharge of a
weapon”—a misdemeanor.          He then justified his warrantless approach by explaining,
hypothetically, what would have happened if he had requested and received a warrant:

       [N]ow we have a misdemeanor warrant. That warrant is not going to be easily
       served anyways, because, number one, it was committed in our presence, so we
       have the right to act upon that as soon as we can safely take him into custody. So
       we don’t need the warrant.
       And the other thing is, even with the warrant, it does not put us in any better of a
       bargaining spot or any better of a position because it was still impossible for us to
       enter that residence and serve that warrant on him in his state being barricaded
       like he was. So the warrant would have been to no avail. The only time the
       warrant would have been handy is if we had decided to just vacate the area, leave
       Mr. Carlson alone, sleep it off, hopefully [sic] that he wouldn’t go anywhere and
       hurt anybody or himself, and then serve the warrant at a later time.

Fewins Dep. 21.

       After more than two hours without seeing or hearing anything from Carlson, the Team
shot fourteen canisters of tear gas into his house, breaking every window and denting the siding.
Carlson did not respond. About an hour later, and still without seeking a warrant, they fired a
second round of tear gas. Carlson still did not respond. At 7:00 a.m.—more than nine hours into
the standoff and still without a warrant—the Team tossed a “throw phone” through the broken
living room window. The throw phone included basic telephone equipment that allowed the
Team to “call” Carlson and give him a chance—which he never took—to answer the call. But it
was not an ordinary telephone. Fewins emphasized that it would not allow Carlson to “call the
radio station” or “to call, you know, an attorney.” Id. at 41. It also contained secret microphones
and a hidden camera that allowed the negotiator to surreptitiously listen to sounds in the house
and could have allowed them to see inside. According to Fewins’s deposition testimony, he
“never” seeks a warrant before using throw phones.

       The Team next saw Carlson moving around the house at around 9:00 a.m. A trio of
deputy sheriffs—Travis Chellis and two others—had positioned themselves in Carlson’s yard,
not far away from the house. When Carlson started shouting about the damage to his house and
No. 13-2643                           Carlson v. Fewins, et al.                   Page 7

threatening to sue, Chellis requested permission to speak with Carlson and began a conversation.
During the ten minute conversation, Carlson reportedly walked back and forth in front of a large
window with a rifle pointing in the general direction of the three deputies in the yard and another
gun visibly hanging from a strap around his neck. Chellis radioed a request for someone to get a
“long gun with glass” (a rifle with a scope) on Carlson.

       At trial, Jetter testified that the tone and substance of his friend Chellis’s request over the
radio left him with the impression that Chellis was in trouble. After hearing Chellis’s radio
message, Jetter decided to move to a better position with a clear view of the window. After
notifying his commanders, he ran to the new location while watching the house. Jetter testified
that after taking a new position with a better view of the window:

       [i]t was a matter of gathering a couple breaths, gathering my composure, thinking
       out loud[:] What is he doing? Why is he doing this? Oh my God, I’m going to
       have to shoot this person. I thought about my family. I thought about Sheriff
       Fewins. I thought[:] [W]hy is he doing this? Why is he moving his finger? Oh,
       my. I had to take a breath, and that’s when I shot.

Jetter’s bullet struck Carlson in the head, killing him instantly.

       The district court in this case concluded that “[e]xigent circumstances existed at the time
of each alleged violation of the warrant requirement and therefore no constitutional violation
occurred.” It did not consider how police action in the early hours of the conflict reduced the
risk that Carlson could harm others. Nor did it consider whether Carlson’s hours of inaction
before, during, and after the tear gas assault undermined the defendants’ claim of imminent
danger. Instead, the court relied on a broad finding of perpetual exigency to hold that “the use of
tear gas . . . was objectively reasonable” and therefore not an excessive use of force. Op. &
Order 29. Addressing the tear gas, it concluded that “reasonable officers could believe that the
first use of tear gas around 5:30 a.m. was necessary to prevent imminent harm to themselves in
particular.” Id. Likewise, the district court concluded that when they again flooded Carlson’s
house with tear gas an hour later, “nothing had terminated the exigency,” so “reasonable officers
could believe that the second round of tear gas was necessary to prevent imminent harm to
themselves.” Id. at 29–30. Thus, the district court believed that exigent circumstances existed at
No. 13-2643                           Carlson v. Fewins, et al.                  Page 8

9:00 p.m. when the police began surrounding Carlson in his house and continued unabated for
more than twelve hours until the sniper killed him there the next morning.

                                 II. Fourth Amendment Exigency

          The Fourth Amendment prevents police officers from intruding into a person’s house
without first securing permission from a disinterested magistrate unless exigent circumstances
would make it unreasonable to wait for judicial approval. “To arrest a person in his home, police
officers need both probable cause and either a warrant or exigent circumstances.” Goodwin v.
City of Painesville, 781 F.3d 314, 327 (6th Cir. 2015). For exigent circumstances to excuse a
warrantless search or seizure, there must be both “compelling need for official action and no time
to secure a warrant.” Missouri v. McNeely, 133 S. Ct. 1552, 1559 (2013) (quoting Michigan v.
Tyler, 436 U.S. 499, 509 (1978)). “Police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U.S. 1, 20
(1968).

          Time is an essential factor when an immediate threat forms the basis for police claims of
exigency. We have held that “[e]xigent circumstances terminate when the factors creating the
exigency are negated.” Bing v. City of Whitehall, 456 F.3d 555, 565 (6th Cir. 2006) (citing
Mincey v. Arizona, 437 U.S. 385, 393 (1978)). If the dangers persist or increase, the exigent
circumstances also persist. See id. (“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.”). But those
dangers may diminish over time as police gain a measure of control, and when they do, the
exigency and reasonableness of warrantless intrusions diminish in tandem. When police initiate
action after a long delay with no new provocation, the delay itself may suggest an unreasonable
evasion of the Fourth Amendment rather than a reasonable response to a dynamic threat. See
O’Brien v. City of Grand Rapids, 23 F.3d 990, 998 (6th Cir. 1994) (“[T]he fact that the officers
waited four-and-a-half hours before deciding to use the first probe belies defendants’ claim that
exigent circumstances existed that prevented them from seeking a warrant.”).

          Any exigent circumstances that could have justified the warrantless use of tear gas and
the throw phone would thus have to flow from some immediate threat posed by Carlson. The
No. 13-2643                          Carlson v. Fewins, et al.                   Page 9

defendants do not claim to have been in hot pursuit of Carlson or otherwise concerned that he
might destroy vital evidence. Indeed, nothing indicates that the Team was pursuing him for any
past crimes, at least not for anything other than the possible reckless discharge of a weapon
identified by Fewins as a likely misdemeanor. A misdemeanor such as that would not generally
establish exigent circumstances to justify a warrantless entry into Carlson’s house. See Welsh v.
Wisconsin, 466 U.S. 740, 750 (1984) (“When the government’s interest is only to arrest for a
minor offense, th[e] presumption of unreasonableness [that attaches to all warrantless home
entries] is difficult to rebut, and the government usually should be allowed to make such arrests
only with a warrant issued upon probable cause by a neutral and detached magistrate.” (footnote
omitted)).

       Viewing the totality of the circumstances from the perspective of a reasonable officer at
the time of the first tear gas barrage, Carlson was thought to be (and actually was) alone in the
house. His neighbors were safely out of Carlson’s reach (though not, as it turns out, entirely safe
from the tear gas). The Team had Carlson contained with snipers and other officers carefully
monitoring his floodlit house. Even after Carlson stopped responding to their negotiator, they
had family members near at hand with open lines of communication. They had time to call a
convenience store for refreshments; they had time to call a judicial officer.

       The choice to call for granola bars but not a warrant appears to have been driven by the
Sheriff’s misunderstanding of the Fourth Amendment. “[I]nconvenience to the officers and
some slight delay . . . are never very convincing reasons . . . to bypass the constitutional
[warrant] requirement.” Johnson, 333 U.S. at 15. Fewins’s approach—choosing not to even
request a warrant because he thought a misdemeanor arrest warrant would not have been
“handy” or “put [the Team] in a better bargaining spot”—misses the point entirely. Judicial
warrants are not intended to blindly facilitate whatever course of action a sheriff prefers. They
are required by the Fourth Amendment “so that an objective mind might weigh the need to
invade th[e] privacy [of the home] in order to enforce the law.” McDonald v. United States, 335
U.S. 451, 455 (1948). The Fourth Amendment thus protects people from the power of the state
by requiring judicial preapproval, time permitting, of intrusive or forceful entrances and seizures.
Johnson, 333 U.S. at 13–14.
No. 13-2643                          Carlson v. Fewins, et al.                  Page 10

       Instead of giving a sheriff the discretion to decide whether to seek a warrant from a
neutral judicial officer based on how helpful the warrant would be to the sheriff, “[t]he point of
the Fourth Amendment” is to vest the discretion to approve or deny an officer’s plan to seize a
person or search a house in a “neutral and detached magistrate.” Id. The warrant requirement is
relaxed when an emergency situation makes it unreasonable to delay long enough to seek one,
not when—as Fewins suggests here—a warrant simply would not have been particularly useful
in the field. The facts available at summary judgment raise an inference that the Team had the
time—and thus the constitutional obligation—to get a warrant from a judge before entering
Carlson’s house with tear gas and surveillance equipment.

       “We are not dealing with formalities.” McDonald, 335 U.S. at 455. In this case, a
neutral magistrate evaluating an application for an arrest warrant might have questioned the
wisdom of a tear gas assault in response to Carlson’s statement that he “kn[e]w at some point
[they were] going to deploy tear gas, and when [they did], that w[ould] be the start of the war.
And [he was] going [to] kill everybody.” An objective judge might also have clarified whether
the Team was trying to save a disturbed and dangerous man or take him into custody on a
misdemeanor weapons charge. Whatever the goals, a judge setting parameters on the warrant
might have taken note of experts’ consistent advice to law enforcement that, “[t]echniques of
eliciting compliance on the part of [emotionally disturbed] subjects that may work with criminal
subjects are not likely to work with emotionally disturbed people” so “officers should remain
calm, exercise restraint, reassure the subject, avoid excitement, and attempt to avoid gathering
crowds.” Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality
of the Circumstances Relevant to Assessing the Police Use of Force against Emotionally
Disturbed People, 34 Colum. Hum. Rts. L. Rev. 261, 293 (2003).

       Longstanding precedent in this circuit leaves the factual question of exigent
circumstances to the jury in a civil case.       A quarter-century ago, a panel facing similar
circumstances explained:

       Although, in a motion to suppress evidence in a criminal case, the factual
       determination whether exigent circumstances existed to excuse a warrantless
       arrest is a question for the court, when the issue arises in a civil damage suit it is
       properly submitted to the jury providing, given the evidence on the matter, there
       is room for a difference of opinion.
No. 13-2643                           Carlson v. Fewins, et al.                 Page 11

               Here, there is very considerable room for disagreement . . . .
               ....
               Since there was room for disagreement whether any of the exigent
       circumstances existed that are ordinarily held to justify a warrantless arrest, we
       hold that the jury should have been given the issue to decide under proper
       instructions. We therefore remand for a new trial.

Jones v. Lewis, 874 F.2d 1125, 1130–31 (6th Cir. 1989) (emphasis added) (citations omitted);
accord O’Brien, 23 F.3d at 998 (“In a civil damage suit, whether exigent circumstances existed
to excuse a warrantless arrest is a question for the jury provided that, given the evidence on the
matter, there is room for a difference of opinion.”).

       The Estate’s evidence suggests that in the split second of their choosing and without a
warrant of any kind, the Team decided to end hours of tense, quiet waiting by taking the precise
action that Carlson had described as “the start of the war.” A jury could find the totality of the
circumstances made this unreasonable, not just with 20/20 hindsight, but from the perspective of
any reasonable person responsible for rendering aid to an armed and obviously emotionally
disturbed person and that no immediate danger exigency excused the various warrantless actions
taken against Carlson while he was taking refuge in his home. In a situation such as this, where
various inferences are possible, the courts have decided that the reasonableness of police conduct
should be decided by a jury.

       We therefore reverse the district court’s order dismissing the counts against the county
and the supervising officers and remand the case so a jury may decide whether the defendants’
various warrantless seizures and searches during a standoff that began with requests to save
Carlson’s life and ended with a sniper shooting him dead were reasonable. We express no
position on the merits of the alternative defenses pretermitted by the district court’s erroneous
conclusion that exigent circumstances excused the warrant requirement—i.e., whether municipal
liability attaches to the choices made by Fewins and Drzewiecki. See generally Pembauer v.
City of Cincinnati, 475 U.S. 469, 483 (1986) (“We hold that municipal liability under § 1983
attaches where—and only where—a deliberate choice to follow a course of action is made from
among various alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question.”).
No. 13-2643                                     Carlson v. Fewins, et al.                           Page 12

                                               III. Use of Force Policy

            The Estate also challenges later rulings by the district court during the trial of the
remaining defendant, the sniper Charles Jetter. The Estate argues that it should have been
permitted to argue that Jetter’s fatal shot violated a departmental “Use of Force Policy”4 in
support of its broader argument that Jetter’s shot was objectively unreasonable under the Fourth
Amendment. That Policy states in relevant part: “Before using lethal force, police officers shall
identify themselves and state their intent to use lethal force, where feasible.” The Estate argues
that this made it unreasonable for Jetter to shoot without first warning Carlson and that the jury
should have been so informed. The Estate interprets the Policy as requiring Jetter to issue a
verbal warning before firing, thus disregarding the “where feasible” language, Jetter’s role as a
sniper, and his claim of danger to the other officer. In the language of the Policy it was not
“feasible” for a camouflaged sniper to identify himself and shout a warning when a suspect is
preparing to fire on another officer. Moreover, the policy does not set the constitutional standard
required by the Fourth Amendment, so it was not improper for the district court to limit the
Estate’s use of that document at trial.

            Although the Policy was already in evidence, the district court would not allow the Estate
to use it to cross examine Jetter’s expert to establish “what is objectively reasonable when it
            4
          The Use of Force Policy is an internal policy document that the Northern Michigan Mutual Aid Task
Force—the multi-jurisdictional organization behind the Emergency Response Team involved in this operation—uses
to “provide police officers with guidelines on the use of lethal and less [than] lethal force.” Northern Michigan
Mutual Aid Task Force Policy on Use of Force, 1. It presents the following “[p]arameters for the use of lethal
force”:
            1.   Police officers are authorized to use lethal force in order to;
                      a. Protect the police officer or others from immediate threat of death or serious bodily
                           harm; or,
                      b. Prevent the escape of a fleeing felon whom the officer has probable cause to believe
                           will pose a significant threat to human life should escape occur.
            2.   Before using lethal force, police officers shall identify themselves and state their intent to use
                 lethal force, where feasible.
            3.   In high risk incidents such as barricaded gunmen or hostage takers, circumstances may dictate
                 the use of lethal force to resolve the incident.
                      a. The order to use lethal force will be given directly from the agency head of the
                           requesting jurisdiction to the [Team] Commander.
                      b. The Team Leader will relay the order directly to the element that will execute the
                           order (Sniper, Entry Team).
                      c. In the event the agency head is not available, the order will be given by the
                           Command Officer designated as the acting agency head.
                      d. The Team Leader will authenticate the origin of the order visually or verbally.
Id. at 2.
No. 13-2643                          Carlson v. Fewins, et al.                 Page 13

comes to a claim under the Fourth Amendment.” Trial Tr. 1746. The district court explained
further: “The law is clear that the policy doesn’t set forth the [constitutional] standard, that’s
why you need an expert witness, which I guess you are not going to call, I guess. You can’t use
a policy to create a [constitutional] standard.” Id. The district court was correct. See Smith v.
Freeland, 954 F.2d 343, 347-48 (6th Cir. 1992) (“A city can certainly choose to hold its officers
to a higher standard than that required by the Constitution without being subjected to increased
liability under § 1983. To hold that cities with strict policies commit more constitutional
violations than those with lax policies would be an unwarranted extension of the law, as well as a
violation of common sense.”). We affirm that ruling.

                                  IV. Spoliation Instructions

       The Estate believed that the defendants were responsible for the unavailability of
evidence that might have supported its case—more complete logs and recordings of police radio
transmissions and the clothing that Carlson was wearing when he died. It asked the district court
to instruct the jury to assume that the missing evidence would have supported the Estate’s theory
of the case against Jetter. “[A]n adverse inference for evidence spoliation is appropriate if the
[d]efendants knew the evidence was relevant to some issue at trial and their culpable conduct
resulted in its loss or destruction.” Adkins v. Wolever (Adkins II), 692 F.3d 499, 504 (6th Cir.
2012) (quoting Beaven v. United States Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010)).
“It is within a district court’s inherent power to exercise broad discretion in imposing sanctions
based on spoliated evidence.” Adkins v. Wolever (Adkins I), 554 F.3d 650, 653 (6th Cir. 2009).
If the district court had concluded that Jetter’s conduct caused the loss of any relevant evidence,
it could have imposed sanctions, including instructing the jury to assume that the spoliated
evidence supported the Estate’s theory of the case. The Estate argues that the district court erred
by declining to issue such an instruction regarding the communication records and the clothing.

       Beginning with the communications records, the Estate argued that the logs and
recordings maintained by the 911 system were altered or incomplete and that the defendants
withheld and then destroyed relevant recordings from that evening. Uncontroverted testimony
from the 911 Director indicated that neither Jetter nor even the 911 dispatchers who log the
communications could have altered the logs. The testimony indicated that the “gaps” in the
No. 13-2643                           Carlson v. Fewins, et al.                  Page 14

911 transcripts during the operation that seemed suspicious to the Estate were caused by the
officers on the scene using a local frequency not monitored by the 911 dispatchers, a standard
practice. The Director also testified that she provided the Estate with copies of all requested
recordings and only destroyed the backups more than a year later when the department updated
its equipment.

       Turning to the missing blood-stained clothing, the Estate argued that Jetter was present in
the morgue where the clothing disappeared and could have removed evidence that might have
contradicted his testimony that Carlson was raising his rifle when Jetter shot him. The Estate
had no direct witnesses to the shooting to contradict the officers’ accounts of Carlson leaning out
the window, shouldering the rifle, and fingering the trigger. Instead, they presented a blood
spatter analyst who testified that the bullet entered Carlson’s head inside the house: seven to
thirteen inches inside the window and between five feet, eight inches and six feet above the floor.
That witness also testified that the blood spatter patterns on Carlson’s rifle suggested that it was
“in a lower position than shouldered” and Carlson’s finger was not on the trigger.

       The same witness testified about Carlson’s shirt, which went missing sometime around
the time of his postmortem exam. The Estate’s expert described a decedent’s clothing as “one of
the most basic pieces of evidence to submit in a situation like this.” She explained that analyzing
blood spatter and unstained regions on the shirt would have allowed a more precise and
confident reconstruction of how Carlson and his rifle were positioned when he was shot. The
Medical Examiner who conducted Carlson’s postmortem exam also testified. He testified that he
and his assistant removed Carlson’s clothing, bagged it, and placed the bag “on top of the body
bag and . . . into the [morgue] refrigerator.” That clothing was missing when Carlson’s body was
removed from the morgue. While the Medical Examiner initially signed an affidavit indicating
that Jetter was present during the examination, he recanted that statement at trial.

       The district court offered independent reasons for rejecting the two proposed spoliation
instructions: no communication records appeared to have gone missing, and Jetter did not seem
to have been responsible for the disappearance of Carlson’s clothing. These conclusions are
adequately supported by the record. While the Estate points to gaps in the communication
records as evidence of skulduggery, uncontroverted testimony indicated that those gaps reflect
No. 13-2643                           Carlson v. Fewins, et al.                  Page 15

the routine use of short-range, unmonitored frequencies for on-site communications. Likewise,
the affidavit the Estate uses to argue that Jetter was present during the autopsy was repudiated by
the affiant, the Medical Examiner, in testimony in front of the district court. Accordingly, the
district court did not abuse its discretion by denying the request for spoliation instructions against
Jetter. We affirm the trial court’s decision regarding those instructions.

                                           V. Summary

          For the foregoing reasons, we reverse the district court’s grant of summary judgment to
defendants Scott Fewins, Steve Drzewiecki, and Grand Traverse County and remand those
claims for jury trial. We affirm the district court’s rulings in the jury trial of defendant Charles
Jetter.
