Federal courts: law enforcement use of diesel to burn house with armed anti-government fugitive ok

[geek tragedy]

http://en.wikipedia.org/wiki/Gordon_Kahl

Shootout near Medina, North Dakota

On February 13, 1983, U.S. Marshals attempted to arrest Kahl as he was leaving a meeting of township supporters in Medina, North Dakota for violating his parole.[8] In the car with Kahl were his wife Joan, his son Yori, and three others who had been at the meeting. According to Scott Faul's testimony, both Gordon Kahl and Yori Kahl were armed with Ruger Mini-14 rifles.[9] The conflict began when federal marshals created a road block a few miles north of Medina. During the ensuing shootout, U.S. Marshal Kenneth Muir and Deputy Marshal Bob Cheshire were killed.[10] Kahl then took the vehicle of a Medina law enforcement officer and fled to Arkansas.

[edit] Smithville, Arkansas shootings
A tip was received by authorities from the youngest daughter of the property owner's land that Leonard Ginter and his wife Norma Ginter lived on. Kahl hid in their earth-bermed passive solar home in Smithville, Arkansas. Another shootout ensued on June 3, 1983, in which Kahl and Lawrence County Sheriff Gene Matthews died. Despite Federal Marshalls and FBI SWAT teams firing thousands of bullets into the home before setting it alight, Kahl was killed by a single .41 Magnum bullet fired by Sheriff Gene Matthews,[11] who died on an operating table[12] critically wounded by a bullet from Kahl's Mini-14.[13]

Hmmm. Has this case been overruled? In this case, the LEO's actualy used diesel as an accelerant--a much more severe tactic than that used in San Bernardino.


Ginter v. Stallcup

https://bulk.resource.org/courts.gov/c/F2/869/869.F2d.384.88-1130.html

Ginter argues, however, that even if Blasingame and Lee believed Kahl was alive, they should remain liable for damages, as the use of diesel fuel to accelerate a fire in the house was an unreasonable use of force. Ginter submitted the affidavit of Roy Jesse Paul, a state certified arson investigator and member of the Houston, Texas Fire Department, who stated that his training indicated that "no law enforcement purpose would be served by the addition of accelerants to a residence." The decision to use diesel fuel on the house appears to have been that of F.B.I. Agent Jim Handley, the leader of the F.B.I. SWAT Team on the scene. Lee, who merely followed Handley's orders, testified that he had no reason to believe that his actions were unlawful. Blasingame denies even knowing about the use of the fuel to smoke Kahl out of the building. The record also indicates that the F.B.I. agents believed Kahl to be armed and dangerous, as he was the prime suspect in the killing of two U.S. marshals in North Dakota. Kahl was, in fact, heavily armed. A search of the debris after the fire resulted in the recovery of five rifles, two shotguns, and two magazines.

19
The district court considered all of these facts and held that Ginter had not shown how the use of fire to force an armed fugitive out of a house violated her constitutional rights. Implicit in its holding is the determination that Ginter failed to create a jury question as to whether Blasingame or Lee acted unreasonably that night. We do not disagree with this finding.

See also relatedly:

Wade v. Blasingame

https://bulk.resource.org/courts.gov/c/F2/931/931.F2d.1285.90-2366.html

Edith and William Wade brought this civil rights action against certain federal, state, and county law enforcement officials after the Wades' house burned to the ground when the officials used an accelerant to dislodge a fugitive harbored inside. Investigations conducted after the fire, however, showed the fugitive died of a gunshot wound before the fire started. Basically, the Wades' theory is that the officials are not entitled to qualified immunity because they intentionally set the house on fire knowing the fugitive was dead. The district court disagreed and granted summary judgment in favor of the officials. We affirm.

2
We review a grant of summary judgment de novo using the same standard applied by the district court. McCuen v. Polk County, Iowa, 893 F.2d 172, 173 (8th Cir.1990). To defeat a motion for summary judgment, the nonmoving party must show a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). "The mere existence of a scintilla of evidence in support of the [Wades'] position will be insufficient; there must be evidence on which the jury could reasonably find for the [Wades]." Id. at 252, 106 S.Ct. at 2512.

3
In an earlier suit, the renter of the Wades' house filed a similar claim against various officials, some of whom are defendants in this action. In that case, this court affirmed summary judgment for the officials because the renter failed to establish a factual issue concerning the officials' knowledge of the fugitive's death before the fire was started. Ginter v. Stallcup, 869 F.2d 384, 388-89 (8th Cir.1989). Although our decision in Ginter does not preclude this action, the legal conclusion that the officials cannot be held liable absent a showing they knew of the fugitive's death before causing the fire is binding precedent. See Bissonette v. Haig, 776 F.2d 1384, 1390 (8th Cir.1985), aff'd on rehearing, 800 F.2d 812 (8th Cir.1986) (en banc), aff'd for absence of quorum, 485 U.S. 264, 108 S.Ct. 1253, 99 L.Ed.2d 288 (1988).

4
Our review of the record convinces us the Wades failed to raise a genuine issue of material fact about the officials' knowledge of the fugitive's death. In opposition to the motion for summary judgment, the Wades submitted the affidavit of a private investigator to support their theory the officials entered the house after shooting the fugitive, spread an accelerant throughout the house, and then started the fire to destroy the house. The admissible portions of the investigator's affidavit, however, are not inconsistent with the officials' version that the fire started when they attempted to flush out the fugitive with tear-gas grenades and smoke canisters after pouring an accelerant into the house. Thus, as we view the record, the Wades have offered no "significant probative evidence" to support their version of how the fire started. Nelson v. City of McGehee, 876 F.2d 56, 59 (8th Cir.1989)

[2pooped2pop]

1. U just can't let it go can you?

OMG!

[geek tragedy]

2. Well, the parallels are striking, no?

Still waiting for one person who made the claims that Dorner was a victim execution/lynching/vigilantism/murder/violation of due process to admit they were in error.

Do you suppose the LEOs were worried about keeping Kahl silent?

[2pooped2pop]

3. I think everybody else gave up the topic last week

[geek tragedy]

4. derp

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2398747

[2pooped2pop]

5. rolling on the floor n/t

[geek tragedy]

6. You're easily amused. nt

[2pooped2pop]

7. true. some days I am.

[kenny blankenship]

8. So we can drop the ridiculous pretense that the police accidentally torched the cabin

And we can stop pretending that "Seven burners deployed and we have a fire" means anything less than it obviously means: that the police intended to use arson to flush Dorner out or kill him.

Good. Good.

If you guys want to back police arson that's fine, let's just drop the stupid lying bit about it being an accident. The stupidity of it is just so fucking offensive.

[geek tragedy]

9. I think it's silly to argue two things:

1) that they were unaware that there was a substantial risk of a fire;

2) that they were perfectly aware that a fire would start.


Fire is a symbol of unpredictability for a reason, and incendiary tear gas cannisters do start fires, but not in the majority of cases.

My sense is that it was "use the nasty tear gas to flush him out, and if the building catches on fire so be it" or something along those lines.

[kenny blankenship]

10. I thought maybe we were finally getting somewhere reasonable

too bad.

[geek tragedy]

13. We're not that much in disagreement.

I think it's pretty clear the police contemplated the possibility that the CS gas cannisters would cause the cabin to catch on fire. They had fire trucks on hand, and certainly didn't seem surprised when it did catch on fire.

However, I also doubt that it's been established even on a prima facie basis that they intended or knew those cannisters would catch on fire. Just that they knew there was a substantial possibility.

[SQUEE]

11. Federal courts: Separate but Equal is OK

Federal courts: Fugitive Slave Act, is OK

Federal Courts: Corporations are persons

Federal Courts: Money is speach..... Ad Nauseum..

Just wondering how many of those opinions are you cheering on?

[geek tragedy]

12. It seems that the San Bernardino police used less lethal means than

the Feds did for Gordon Kahl.

Hmmm.

Just wondering what all the self-appointed guardians of the "Rule of Law" as per the Dorner standoff had to say about the actual law.

[SQUEE]

14. I recognize it was "legal"

I merely call in to question the tactics and mindset,every thing I have seen and heard points to: he was purposely burned out.
7 pyrotechnic CS canisters were fired in to a small wooden structure, this was a purpose set fire.
I will repeat my earlier statements, his grape popped by a sniper, no problem, dropped during a dynamic entry, again no problem. But the message sent by a police force shooting wildly at unknown targets, and then purposely torching a building.. yeah this does bother me.

[geek tragedy]

15. The shooting wildly part, yeah every bad thing that's been said is pretty much true.

I don't think any of us will know if their main goal was the fire or whether it was a not entirely unwelcome side effect. They seemed to have the situation under control and it was carefully thought out-- they had fire trucks standing by etc.