Hostages and the Legal Duty to Protect
Public Agency Training Council
Ewolski v. City of Brunswick provides an example of how decisions made by police officers and impacting the lives of hostages will be viewed by courts considering a duty to protect type claim.i The claim in Ewolski stemmed from the suicide of John Lekan and the homicide of Lekan’s son by John Lekan as a SWAT team moved in attempting to end a two-day standoff.
The events leading up to the murder-suicide began when Mr. Lekan was observed by nurses’ aides walking around with a rifle. The nurses’ aides were at the Lekan home caring for Mrs. Lekan. On one occasion, Mr. Lekan was holding the rifle near the aide’s face. This behavior continued over the course of nearly two weeks prior to police involvement.
Police officers met to devise a plan to deal with Lekan whom they knew to be a paranoid schizophrenic with potentially violent tendencies. Lekan’s sister-in-law, who was a police dispatcher, informed the officers that Lekan was not taking his medication and was in possession of loaded guns. It was her opinion that he was capable of shooting a police officer if officers went to the house. Following the meeting it was decided that officers would be staged at a shopping center nearby while two officers, wearing plainclothes, went to the house to check on the well-being of Mrs. Lekan and her son. The officers were instructed to wear plainclothes based on the information that Mr. Lekan may respond violently toward police officers.
The two officers went to the front door and knocked. Mr. Lekan opened the inside door but remained behind the storm door. Initially the officers did not identify themselves but informed Mr. Lekan that they needed to speak to his wife. Lekan then moved away from the door at which time one of the officers held his badge to the window and informed Mr. Lekan that he was a police officer. Lekan moved away from the window and slammed the door shut. The two officers forced their way in. As they did so, Mr. Lekan shot Officer Puzzella. The two officers retreated and called for assistance.
The department’s Emergency Response Team (ERT) was activated. In the early stages of this stand-off Mr. Lekan spoke to an officer in the station and stated that the first officer was lucky and that his home was his castle. Attempts to speak with Mr. Lekan were largely unsuccessful. Relatives of Mr. Lekan showed up at the police station and requested an opportunity to speak with Lekan; however, the police denied these requests.
During the evening hours, Chief Beyer spoke with a mental health professional that had been monitoring the circumstances, as well as the conversations between Lekan and the officers. The mental health worker indicated to the chief that the threat level was high. The chief then asked officers if there was some reason “not to pursue a tactical solution to the standoff.”
Chief Beyer ordered a tactical entry into the Lekan home. The entry failed when the ERT team threw an incendiary device into the house for purposes of creating a distraction and the device started a fire at the entry point. The lead officer stopped to put out the fire giving Lekan an opportunity to exchange gunfire with the police leading the police to a tactical retreat. Officers then re-contacted Mr. Lekan who requested to speak with his cousin, who was a priest. Officers interpreted the request for a priest as a potential sign of a murder-suicide plan.
Sometime after 3:00 a.m. an armored vehicle arrived from Cleveland. Chief Beyer ordered the armored vehicle to be driven onto the front lawn with lights shining into the house. Attempts to speak with Lekan over a loud speaker were unsuccessful. Later, the vehicle was rammed through the living room wall and tear gas was injected. Between 4 and 5 a.m. officers heard shots fired from inside the house. At 11:00 a.m. the armored vehicle was driven through the garage door and a tactical entry was made. Officers found that J.T. Lekan had been murdered by his father and that John Lekan had committed suicide after shooting his son.
In the court’s review of the case, it was first resolved that the officers had exigent circumstances to justify a warrantless entry into the Lekan home. In doing so, the court recited the information known to the officers when they responded to the home. The court rejected the argument that the actions of the first two officers, in failing to identify themselves when asking to see Mrs. Lekan, was a deliberate attempt to create exigency in an effort to eliminate the need for a warrant.
A point of interest arises out of the court’s conclusion that Mr. Lekan was seized during the entire standoff. The court refused to analyze Mr. Lekan’s circumstances in terms of a “show of authority seizure” where the failure to submit would lead to a conclusion that no seizure had occurred.ii The court instead applied the analysis for a physical seizure based on Brower v. Inyo Countyiii, and concluded that since Lekan was not free to leave, he was seized. The court went on to conclude that the seizure was reasonable.
In analyzing the decision to conduct a tactical entry in light of the due process rights of J.T. Lekan the court applied the deliberate indifference standard. The court noted that since the standoff exceeded five hours, Chief Beyer had a sufficient amount of time to deliberate on the appropriate action to take.
The court reviewed the factors taken into account by Chief Beyer before deciding to make a tactical entry. The court noted that Beyer had spoken to mental health professionals, had consulted with officers and had weighed the information available at the time. The court concluded that the chief had not acted with deliberate indifference in making his decision but instead had conducted a careful balancing of the circumstances he was confronted with. It should be noted that the court was critical of the use of the armored vehicle, the poor execution of the initial entry by the police, and the seeming rush by the police to enter after only five hours when Lekan had retreated from the confrontation. The court concluded that these deficiencies did not rise to the level of constitutional violations.
i Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2002).
ii See California v. Hodari D., 499 U.S. 621 (1991).
iii Brower v. Inyo County, 489 U.S. 593 (1989).