Conlon v. Scaltreto

• Court: Court of Appeals for the First Circuit
• Decided: October 22, 2025
• Docket: 24-1634
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1634

ROBERT P. CONLON, Personal Representative of the Estate of Michael Conlon; BETSY A. CONLON, Personal Representative of the Estate of Michael Conlon,

Plaintiffs, Appellants,

v.

FRANCIS SCALTRETO, Officer, Newton Police Department; RICHARD BENES, Officer, Newton Police Department; GLENN CHISHOLM, Sergeant, Newton Police Department; DENNIS DOWLING, Captain, Newton Police Department; CHRISTOPHER MARZILLI, Captain, Newton Police Department; CITY OF NEWTON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Aframe, Lynch, and Howard, Circuit Judges.

Patrick Driscoll, with whom Janine D. Kutylo, Anthony Buonopane, and Boyle Shaughnessy Law were on brief, for appellants. Thomas R. Donohue, with whom Leonard H. Kesten, Francesca M. Papia, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellees.

October 22, 2025 PER CURIAM. This appeal arises from a police

confrontation that resulted in the fatal shooting of a man in his

Newton, Massachusetts apartment building. The incident began when

the Newton Police Department (NPD) received a report that Michael

Conlon was attempting an armed robbery of a candy store adjacent

to his apartment building. It ended approximately thirty minutes

later when Conlon, who was suffering a mental-health crisis, was

shot dead by two officers on scene.

Plaintiffs -- Conlon's parents serving as the

representatives of their son's estate -- sued the City of Newton

and several of its police officers, asserting claims under 42

U.S.C. § 1983, Title II of the American with Disabilities Act

(ADA), the Rehabilitation Act, and Massachusetts law. The district

court dismissed Plaintiffs' complaint entirely and entered

judgment. We vacate the judgment as to Plaintiffs' section 1983

claims against the police officers' use of lethal force and remand

the matter for further proceedings on that claim. The remainder

of the judgment is affirmed.

I.

A.

This appeal follows a Rule 12(b)(6) dismissal of

Plaintiffs' First Amended Complaint. We therefore credit

Plaintiffs' account of events from the non-conclusory allegations

- 2 - in that complaint, drawing all plausible inferences in Plaintiffs'

favor. See Penate v. Hanchett, 944 F.3d 358, 362 (1st Cir. 2019).

At approximately 1:45 p.m. on January 5, 2021, NPD

Officer Zachary Raymond responded to a report of an ongoing armed

robbery at Indulge!, a candy store located at 16 Lincoln Street in

Newton, Massachusetts. When Raymond arrived, he saw Michael Conlon

standing outside the store holding a small kitchen knife.1 Raymond

drew his sidearm and ordered Conlon to drop the knife. Conlon, a

twenty-eight-year-old man suffering from a mental illness that

made him fear the police, responded by fleeing into his three-story

apartment building next door.

With Officer Raymond in pursuit, Conlon ascended two

flights of stairs to the third and top floor. Once there, Conlon

turned towards Raymond, held the kitchen knife against his own

neck, and threatened to cut his own throat if Raymond advanced.

Raymond retreated to the second-floor landing to await backup.

Conlon then used the butt of the knife to knock on Apartment 3's

door, asking repeatedly to speak with a neighbor who was not home

at the time.

Meanwhile, several members of NPD and the Massachusetts

State Police (MSP) arrived, including NPD Captains Dennis Dowling

and Christopher Marzilli. Dowling and Marzilli observed Conlon

1 The First Amended Complaint does not provide additional detail about the "kitchen knife."

- 3 - standing in front of the entryway to Apartment 3, which was located

at the top of the stairs on the third-floor landing. Conlon was

spitting and drooling as he expressed his belief that he was

participating in a simulation and questioned whether the officers

assembling before him were "real." Dowling and Marzilli recognized

that Conlon was suffering a mental-health crisis and an NPD social

worker was called to the scene.

Additional officers continued to arrive and assemble.

NPD Officer Francis Scaltreto assumed principal responsibility for

negotiating with Conlon. To do so, Scaltreto stood approximately

twelve feet from Conlon in the third-floor hallway. While

Scaltreto spoke to Conlon, either Captain Dowling or Captain

Marzilli instructed NPD Sergeant Glenn Chisholm to retrieve

Chisholm's "beanbag shotgun" -- a usually less-than-lethal weapon

-- and stand in the open doorway of Apartment 4 alongside NPD

Officer Richard Benes. Two MSP troopers flanked Chisholm and Benes

near the doorway to Apartment 4 and another four NPD officers

waited inside that apartment. An NPD lieutenant carrying a shield

waited at the bottom of the stairwell below Conlon.

After the police gained access to the back entrance of

the building, officers used Apartment 4 as a "staging area." The

entryway to Apartment 4 was approximately twenty feet down the

hall from where Conlon stood outside Apartment 3. Officers also

barricaded the rear door to Apartment 3 so that Conlon could not

- 4 - escape through that unit. As officers continued to arrive on

scene, Captain Marzilli informed them that Conlon was a "psych

patient" and characterized the situation as "a mental health

issue."

The assembled group included an NPD officer who had

responded with NPD social worker Sarah Eknanian, who remained in

a police car parked outside the apartment building. Separately,

an NPD lieutenant on scene contacted the Northeastern

Massachusetts Law Enforcement Council (the "Council") to request

assistance from a negotiator and the Council's tactical team.

Council members are trained in de-escalating and negotiating

techniques for mentally-ill or suicidal persons and typically

require about thirty minutes to respond to an incident in Newton.

Captains Dowling and Marzilli agreed that they should

try to wait to apprehend Conlon until after the Council team

arrived, but that Conlon could be incapacitated by Sergeant

Chisholm using the beanbag shotgun if the situation deteriorated.

In that event, Dowling and Marzilli agreed that two MSP troopers

should back up Chisholm using tasers and, if non-lethal measures

proved ineffective, Officer Benes should use his sidearm to employ

lethal force. Dowling and Marzilli communicated this plan to the

officers. Though Marzilli, Chisholm, and Benes endorsed the

approach, the MSP troopers expressed doubts that their tasers would

be effective because Conlon was wearing thick winter clothing.

- 5 - In the meantime, Officer Scaltreto continued to

negotiate with Conlon from the narrow, third-floor hallway,

standing approximately twelve feet from Conlon. Conlon, still

agitated, held the kitchen knife in one hand and a fire

extinguisher in his other. Conlon maintained that he was

participating in a simulation and repeatedly asked to speak with

his father. Several officers feigned belief in Conlon's delusions

and said they would call his father if he dropped the knife. After

approximately twenty minutes of negotiation, Scaltreto convinced

Conlon to drop the knife and fire extinguisher to the floor. He

did so by telling Conlon that the "simulation" required Conlon to

release the knife before the police could contact his father.

Officers had also assured Conlon that he would not be harmed.

Once Conlon dropped the knife, Officer Scaltreto

communicated to the officers behind him that there was an

"opening." Captain Marzilli heard this message and relayed it to

Captain Dowling. After Dowling received Marzilli's message,

Dowling radioed Sergeant Chisholm to use the beanbag shotgun on

Conlon. Marzilli provided Chisholm with confirmation to carry out

the order.

Still standing about twelve feet from Conlon, Sergeant

Chisholm raised the beanbag shotgun and pointed it at Conlon's

collarbone. While pointing the beanbag shotgun, Chisholm pulled

the trigger. The gun did not fire, however, and instead made a

- 6 - loud clicking noise. Chisholm then attempted to "clear" the

beanbag shotgun by discharging a round but was unable to do so.

Based on accounts from some but not all officers, Conlon reacted

by picking up the knife and moving towards Chisholm.2 An MSP

trooper then deployed his taser at Conlon and, nearly

simultaneously, Officers Benes and Scaltreto fired their sidearms,

killing Conlon. The Council team arrived six minutes later. An

autopsy showed that Conlon suffered fatal gunshot wounds to the

head, neck, and torso.

B.

Plaintiffs sued the City of Newton and several NPD

officers involved in the fatal shooting -- namely, Officers

Scaltreto and Benes, Sergeant Chisholm, and Captains Dowling and

Marzilli (collectively, the "Officer-Defendants"). As relevant to

this appeal, Plaintiffs asserted claims against the Officer-

Defendants under section 1983 and the Massachusetts Civil Rights

Act ("MCRA") alleging use of excessive force (Counts 1 and 8), and

for wrongful death under the Massachusetts Wrongful Death Act

(Count 9). Plaintiffs also brought a state-law claim against

Chisholm for common law assault (Count 10). Plaintiffs alleged

that the City likewise violated section 1983 by failing to train

2 As described in greater detail infra, officers are alleged to have provided "inconsistent statements" regarding, inter alia, "whether [Conlon] picked up the knife after the [beanbag] shotgun was fired."

- 7 - and supervise its officers on responding appropriately to

mental-health emergencies and the use of beanbag shotguns (Count

2) and further violated the ADA and the Rehabilitation Act by

failing to accommodate Conlon's disability and adequately train

its officers (Counts 4-6).

The Officer-Defendants and the City moved to dismiss all

claims for failure to state a claim upon which relief could be

granted, which included assertions that the Officer-Defendants

were protected by qualified immunity. Fed. R. Civ. P. 12(b)(6).

The district court granted the motion in full.

On appeal, Plaintiffs seek to reverse the district

court's decision with respect to their Fourth Amendment excessive

force claim against the Officer-Defendants, the section 1983 claim

against the City, the entirely separate claims under the ADA and

Rehabilitation Act, and the claims under Massachusetts state law.

But their opening brief does not develop any meaningful challenge

to the dismissal of their claims against the Officer-Defendants

for common law assault or wrongful death under the Massachusetts

Wrongful Death Act, nor do they respond to the arguments made by

the Officer-Defendants as to those two claims on reply. We

accordingly deem waived any claim of error arising out of the

dismissal of Counts 9 or 10. See Schneider v. Loc. 103 I.B.E.W.

Health Plan, 442 F.3d 1, 3 (1st Cir. 2006) ("It is well-established

that 'issues adverted to in a perfunctory manner, unaccompanied by

- 8 - some effort at developed argumentation, are deemed waived.'"

(quoting Nikijuluw v. Gonzales, 427 F.3d 115, 120 n.3 (1st Cir.

2005))).

We therefore limit our analyses to only the issues raised

with respect to the remaining claims, which are narrower than those

raised in the district court. For the reasons that follow, we

affirm dismissal of the claims against the City and the MCRA claim

against the Officer-Defendants, and remand for further proceedings

on Plaintiffs' excessive force claim against the

Officer-Defendants as it pertains to Conlon's fatal shooting.

II.

We review de novo the grant of a motion to dismiss under

Rule 12(b)(6). See Guadalupe-Báez v. Pesquera, 819 F.3d 509, 514

(1st Cir. 2016) (citing Medina–Velázquez v. Hernández–Gregorat,

767 F.3d 103, 108 (1st Cir. 2014)). To survive a motion to dismiss,

a complaint must contain sufficient factual matter to state a claim

for relief that is plausible on its face. See Pike v. Budd, 133

F.4th 74, 82 (1st Cir. 2025) (citing Ashcroft v. Iqbal, 556 U.S.

662, 671 (2009)). A claim is facially plausible when the pleaded

facts permit "the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." Id. (quoting

Iqbal, 556 U.S. at 678). We first consider whether the various

claims in the First Amended Complaint state plausible claims

- 9 - against the Officer-Defendants. Then we separately address the

claims against the City.

III.

We begin with Plaintiffs' section 1983 claim against the

Officer-Defendants for their alleged uses of excessive force in

violation of the Fourth Amendment. Section 1983 supplies a private

right of action against any person who, under color of state law,

deprives another of "any rights, privileges, or immunities secured

by the Constitution and [federal] laws." 42 U.S.C. § 1983. A

section 1983 claim may be based on a police officer's use of

excessive force in effecting an arrest because the Fourth Amendment

protects, among other things, an individual's right to be free

from unreasonable seizures by the police. See Stamps v. City of

Framingham, 813 F.3d 27, 35 (1st Cir. 2016). "To make out a Fourth

Amendment excessive force claim, a plaintiff must show, as an

initial matter, that there was a seizure within the meaning of the

Fourth Amendment and then that the seizure was unreasonable." Id.

On appeal, Plaintiffs challenge dismissal of their

section 1983 claim against the Officer-Defendants based upon two

uses of allegedly excessive force against Conlon: (1) the

deployment of the beanbag shotgun (i.e., the nearly simultaneous

pointing and misfiring of the weapon); and (2) the fatal shooting.

The Officer-Defendants do not contest that Plaintiffs have

adequately pleaded that Conlon was "seized" for Fourth Amendment

- 10 - purposes by both actions. Instead, the Officer-Defendants have

chosen to defend against these section 1983 excessive force claims

on the grounds that they are entitled to federal qualified

immunity.

Qualified immunity protects government officials "when

[they] make a decision that, even if constitutionally deficient,

reasonably misapprehends the law governing the circumstances

[they] confronted." Taylor v. Riojas, 592 U.S. 7, 8 (2020)

(quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). The

defense shields an officer from a section 1983 claim unless the

officer (1) "violated a federal statutory or constitutional

right"; and (2) "the unlawfulness of [the officer's'] conduct was

'clearly established at the time'" of the alleged misconduct.

Lachance v. Town of Charlton, 990 F.3d 14, 20 (1st Cir. 2021)

(quoting Irish v. Fowler, 979 F.3d 65, 73 (1st Cir. 2020)). We

further break down the second stage of the inquiry by asking

whether (a) there is "controlling authority or a consensus of

persuasive authority sufficient to put an officer on notice that

his conduct fell short of the constitutional norm"; and (b) an

objectively reasonable officer would have known that his conduct

violated" the clearly established law in the circumstances he

faced. Est. of Rahim v. Doe, 51 F.4th 402, 410 (1st Cir. 2022)

(quoting Conlogue v. Hamilton, 906 F.3d 150, 155 (1st Cir. 2018)).

- 11 - Under the second step of the second prong, "an officer

is entitled to qualified immunity '[i]f . . . an objectively

reasonable officer could have concluded (even mistakenly) that his

or her conduct did not violate [the plaintiffs'] rights.'" Johnson

v. City of Biddeford, 92 F.4th 367, 375 (1st Cir. 2024) (quoting

Stamps, 813 F.3d at 34 n.7). "Reasonableness is assessed 'from

the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight,' and must take account of 'the

fact that police officers are often forced to make split-second

judgments -- in circumstances that are tense, uncertain, and

rapidly evolving -- about the amount of force that is necessary in

a particular situation.'" Bannon v. Godin, 99 F.4th 63, 78 (1st

Cir. 2024) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)),

cert. denied, 145 S. Ct. 1048 (2025). We affirm the district

court's decision to grant the officers qualified immunity as to

use of the beanbag gun because we cannot say no reasonable officer,

in the context of the facts here, would have understood that his

actions were in violation of the Fourth Amendment.

We start with whether the district court erred in

granting qualified immunity to the asserted claims of excessive

force as to Sergeant Chisholm's deployment of the beanbag shotgun

at Captains Dowling and Marzilli's instruction. We hold that the

district court did not err because under the second step of the

- 12 - second prong of the qualified immunity analysis, an objectively

reasonable officer would not have known that his conduct violated

the clearly established law in the circumstances he faced. We

operate from the assumption, not challenged by the defendants,

that the beanbag excessive force claim is both an independent claim

and is plausible.

We affirm the district court's grant of qualified

immunity because it would not have been clear to a reasonable

officer that aiming the usually less-than-lethal beanbag gun at

Conlon's breastbone and attempting to fire it constituted

excessive force, or at least not so clear that "no competent

officer could have thought that [it] was permissible." Penate, 73

F.4th at 22 (quoting Mlodzinski v. Lewis, 648 F.3d 24 (1st Cir.

2011)).3 The officers had reason to think the firing of the beanbag

3 As to the first part of the second prong, we note there is no controlling First Circuit or Supreme Court case giving notice to the officers that such deployment would violate Conlon's Fourth Amendment rights. And we see no consensus of persuasive authority from other circuits giving such notice. Indeed, a number of courts have found to the contrary. See Bell v. Irwin, 321 F.3d 637, 639-40 (7th Cir. 2003) (no use of excessive force when officers shot suicidal, knife-armed man with beanbag gun after failed negotiations and as he leaned toward propane tank with cigarette lighter); Cortesluna v. Leon, 979 F.3d 645, 652-53 (9th Cir. 2020) (no use of excessive force when officer shot plaintiff twice with a beanbag shotgun in response to a domestic violence incident, where subject had knife in his pocket), cert. granted, decision rev'd sub nom. Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021), and adhered to in part, 22 F.4th 866 (9th Cir. 2022); Glenn v. City of Columbus, 375 F. App'x 928 (11th Cir. 2010) (unpublished) (officer was entitled to qualified immunity when he deployed beanbag gun from twenty-one feet away against an unarmed individual experiencing a mental-health crisis and who had access to guns).

- 13 - gun would not be lethal. Officer Chisholm fired it from a distance

of about twelve feet, aimed for the breastbone, not the head or

the heart, and had observed that Conlon was protected by thick

layers of winter clothing. Those layers meant to the officers that

the use of tasers would likely be ineffective. And that

realization meant the officers were in compliance with the NPD

policy on the use of beanbag guns, as the lesser force of a taser

would not work. NPD's General Order 301 authorizes use of a

beanbag gun to "stop a suspect through blunt, non-lethal force"

when "[t]he officer's attempt to gain lawful compliance has

culminated in a perceived or actual attack on the officer or

others," but the "officer makes the reasonable assessment that

such actions by the subject would not result in the officers [sic]

or other's death or serious bodily harm." Under General Order

301, officers may deploy the beanbag gun "when necessary to

preserve the peace, prevent crimes, [or] to prevent suicide or

self-inflicted injury," or when "necessary to overcome resistance

to lawful arrests, searches and seizures, and to prevent escape

from custody." Here, the officers could reasonably have concluded

that the beanbag gun was an appropriate option under General Order

301 because Conlon had access to both a knife and fire

extinguisher, had refused to comply with officers for over twenty

minutes, and had threatened to cut his own throat.

- 14 - Beyond that, the officers had reason to seek further de-

escalation. Conlon remained a threat. Although Conlon had put

down the knife, it was at his feet and he could easily pick it up

again (as he did when the gun was fired unsuccessfully). The knife

continued to be a lethal threat both to Officer Scaltreto, who was

only twelve feet away standing in a narrow hallway, and to the

other officers about twenty feet away. See Rahim, 51 F.4th at 417

(officers were entitled to qualified immunity when they deployed

lethal force against subject armed with knife who came within

twenty-five feet).

Because the officers could reasonably perceive that

Conlon remained volatile and a threat, this situation is

distinguishable from instances where we have found that officers

unjustifiably escalated the use of force. Raiche v. Pietroski,

623 F.3d 30 (1st Cir. 2010), cited by Conlon and the dissent, is

inapposite because there the plaintiff "present[ed] no indications

of dangerousness" at the time the officers deployed force. Id. at

39. Similarly, in Jennings v. Jones, 499 F.3d 2 (1st Cir. 2007),

the subject had been fully restrained, had stopped resisting, and

had warned officers of his ankle pain before they nevertheless

applied additional unnecessary force. See id. at 18. By contrast,

here Conlon remained in a tense situation in close proximity to

the officers, who could reasonably perceive a continuing threat.

See Est. of Bennett v. Wainwright, 548 F.3d 155, 175–76 (1st Cir.

- 15 - 2008) (holding that officers were entitled to qualified immunity

on excessive force claim because they reasonably but mistakenly

could have believed that decedent posed continuing, imminent

threat).

We hold that a reasonable officer would have understood

that use of the beanbag gun most likely would de-escalate the

situation further. The officer would most likely have concluded

that use of the beanbag gun would reduce the need for use of

further force and reduce the risk to all in the encounter, both

the police officers and Conlon. It would not be objectively

foreseeable to a reasonable officer in Sergeant Chisholm's

position, acting pursuant to his superior's instructions, that the

beanbag gun would not function properly, much less that the

attempted deployment would lead to Conlon allegedly picking up the

knife again. Nothing in the pleadings asserts that the officers

should have known either of these points.

We consider next whether Plaintiffs have pleaded

sufficient facts to overcome qualified immunity for an excessive

force claim based on the fatal shots fired by Officers Benes and

Scaltreto. As noted above, the shooting took place after the

failed efforts to incapacitate Conlon using the beanbag gun.

In dismissing Plaintiffs' section 1983 claim based on

this conduct, the district court recognized that the First Amended

- 16 - Complaint leaves open "myriad factual questions surrounding the

critical moments before the shooting," including "how rapidly

Conlon approached," "whether [Conlon] held the knife as if to

strike [Sergeant] Chisholm," "whether a warning was given before

the fatal shots were fired," and "how much time elapsed between

the attempted use of the [beanbag] shotgun and the shooting

itself." But the court read the First Amended Complaint to concede

the truth of the key fact on which the Officer-Defendants rest

their immunity defense: that Conlon was armed with a knife when he

advanced towards Sergeant Chisholm. From there, the court

concluded that the Officer-Defendants were entitled to qualified

immunity because Plaintiffs failed to identify authority that

would support finding a Fourth Amendment violation "when officers

use deadly force in response to an advancing suspect in a mental-

health emergency who is armed with a knife."

On appeal, the Officer-Defendants likewise assume that

Conlon was advancing on Chisholm with a knife and do not argue

that the Officer-Defendants would be entitled to qualified

immunity if Conlon had been unarmed at the time of the shooting or

not able to inflict injury on officers or had clearly indicated

Conlon had no intent to injure anyone, but possibly himself. That

is for good reason: "[a] police officer's use of deadly force is

deemed a seizure under the Fourth Amendment, and such an extreme

action is reasonable (and, therefore, constitutional) only when

- 17 - 'at a minimum, a suspect poses an immediate threat to police

officers or civilians.'" McKenney v. Mangino, 873 F.3d 75, 81

(1st Cir. 2017) (quoting Jarrett v. Town of Yarmouth, 331 F.3d

140, 149 (1st Cir. 2003)); see also Bennett, 548 F.3d at 175

(noting deadly force is justified only where "an individual posed

a 'threat of serious physical harm either to the officer or

others'" (quoting Young v. City of Providence ex rel. Napolitano,

404 F.3d 4, 23 (1st Cir. 2005))). Accordingly, we have held that

employing lethal force against a decedent who, during a mental-

health emergency, slowly approached an officer and a civilian while

holding a firearm lowered at his side "offended clearly established

Fourth Amendment law," and that "an objectively reasonable officer

would have realized as much." McKenney, 873 F.3d at 74.

It follows that the Officer-Defendants' entitlement to

qualified immunity may well hinge on whether Conlon was armed when

Officers Benes and Scaltreto used lethal force against him. It is

true that Plaintiffs' first complaint asserts at one point that

the misfiring of the beanbag shotgun "caus[ed] a loud clicking

noise which startled [Conlon] and caused him to pick up the kitchen

knife he had just dropped pursuant to [Officer] Scaltreto's

orders." Plaintiffs proceed, however, to qualify that account of

events in two respects. First, they plead that Conlon is only

"alleged[]" to have "reacted" to the attempted use of the beanbag

shotgun "by picking up the kitchen knife and moving towards

- 18 - [Sergeant] Chisholm." Second, they allege that the

Officer-Defendants gave "inconsistent statements" after the

incident about "where and when officers were positioned, what

[Conlon] was doing when he stood in the hallway, and critically,

whether [Conlon] picked up the knife after the bean[]bag shotgun

was fired." Plaintiffs note also that the Officer-Defendants have

not been able to substantiate their claim that Conlon rearmed

himself with a knife through "photographic evidence" and assert

that "conflicting testimony" was provided on "whether the knife

was near [Conlon] when he was killed."

As we read the complaint, Plaintiff pleads that there

are material facts to dispute as to several occurrences in the

moments before the fatal shooting. The uncertain "nature of the

complaint and the record at this early stage of litigation makes

vacating the appropriate course." Irish v. Maine, 849 F.3d 521,

526 (1st Cir. 2017); see also Rahim, 51 F.4th at 410 (in

determining whether officers are entitled to qualified immunity,

courts consider, among other factors, "[w]hether the suspect was

advancing on the officers or otherwise escalating the situation").

Discovery may reveal that Conlon picked up the knife in the moments

preceding his death; it may also reveal that he charged unarmed

towards Sergeant Chisholm; or it may even reveal that Conlon did

not charge at all. The resolution of the precise sequence of

events leading up to Conlon's death is clearly relevant to

- 19 - determining whether qualified immunity applies. But we cannot

resolve the qualified immunity question presently presented

without a fuller development of the record. See Irish, 849 F.3d

at 528. We accordingly vacate the district court's dismissal of

Plaintiffs' section 1983 claim against the Officer-Defendants' use

of lethal force to permit the needed discovery.

IV.

We turn next to the remaining count against the

Officer-Defendants pressed by Plaintiffs on appeal: Plaintiffs'

MCRA claim based on the Officer-Defendants' alleged use of

excessive force against Conlon. The MCRA is "a state-law analogue"

to section 1983 "that provides a statutory civil cause of action

against those who 'interfere' with the exercise or enjoyment of

rights secured by federal or state law." Nolan v. CN8, 656 F.3d

71, 76 (1st Cir. 2011) (quoting Mass. Gen. Laws ch. 12, § 11H)).

But "the MCRA is narrower than [section] 1983 in that it limits

its remedy to conduct that interferes with a secured right 'by

threats, intimidation or coercion.'" Id.

The Massachusetts Supreme Judicial Court held in Longval

v. Comm'r of Corrs., 404 Mass. 325 (1989), that "[a] direct

violation of a person's rights does not by itself involve threats,

intimidation, or coercion and thus does not implicate the [MCRA]."

Id. at 333. Since that decision, courts have interpreted this

limitation to require "proof of 'threats, intimidation, or

- 20 - coercion' . . . in addition to the interference with the exercise

or enjoyment of secured rights." Sarvis v. Bos. Safe Deposit &

Tr. Co., 711 N.E.2d 911, 918 (Mass. App. Ct. 1999) (emphasis

added). The district court accordingly dismissed Plaintiffs' MCRA

claim, noting that "[a]llegations of excessive force, without

more, consistently have been held not to constitute violations of

the MCRA." (citing Farrah ex rel. Est. of Santana v. Gondella, 725

F. Supp. 2d 238, 248 (D. Mass. 2010) (entering judgment for

officer-defendants on MCRA claim based on alleged use of excessive

force on the ground that plaintiff failed to plead "that the

[Fourth Amendment] violation was intended to coerce [the arrestee]

into refraining from the exercise of a right or privilege secured

by law" because "[t]here is no right under state or federal law to

resist an arrest . . . even one that is illegal from its inception);

Gallagher v. Commonwealth, No. Civ.A. 00-11859-RWZ, 2002 WL

924243, at *3 (D. Mass. Mar. 11, 2002) (noting that the "use of

force is not, in itself, 'coercive' within the meaning of the

[MCRA] unless such force is inflicted in order to achieve 'some

other purpose'" (quoting Longval, 404 Mass. at 333))).

On appeal, Plaintiffs argue that the Officer-Defendants'

conduct in deploying the beanbag shotgun against Conlon

constituted a threat or coercion under the MCRA. Even assuming

dubitante that is so, however, Plaintiffs plead no facts showing

how such conduct caused Conlon to give up some additional right,

- 21 - as required by Massachusetts law. See Sarvis, 711 N.E.2d at 918.

We accordingly affirm the dismissal of Plaintiffs' MCRA claim.

We now turn to Plaintiffs' claims against the City.

These claims fall into two groups: (1) claims arising from the

City's alleged failure to train officers, in violation of section

1983 and, separately, in violation of the ADA; and (2) claims

arising from the City's alleged failure to accommodate Conlon, in

violation of the ADA and the Rehabilitation Act. For the reasons

set forth below, we conclude that these claims were properly

dismissed.

We begin by examining Plaintiffs' failure-to-train claim

against the City under section 1983. Though a municipality may

not be held vicariously liable under section 1983 for the acts of

its employees, see Monell v. Dep't of Soc. Servs., 436 U.S. 658,

692 (1978), a municipality may be liable only under certain

circumstances where its failure to train or supervise those

employees results in a constitutional injury, see City of Canton

v. Harris, 489 U.S. 378, 388 (1989). Establishing municipal

liability for a failure to train or supervise -- referred to as a

Monell claim -- requires a three-part showing that (1) the action

in question constituted a "policy" or "custom" attributable to the

municipality, Young, 404 F.3d at 26; (2) the policy or custom

- 22 - "actually caused" the constitutional injury, id.; and (3) the

municipality acted with a degree of fault that amounts to

"deliberate indifference to the rights of persons with whom the

police come into contact," City of Canton, 489 U.S. at 388-89.

The deliberate indifference standard for imposing

liability on a municipality is "stringent." Cosenza v. City of

Worcester, 120 F.4th 30, 38 (1st Cir. 2024) (quoting Bannon, 99

F.4th at 88). "That a particular officer may be unsatisfactorily

trained will not alone suffice to fasten liability on the city,"

nor "will it suffice to prove that an injury or accident could

have been avoided if an officer had better or more training,

sufficient to equip him to avoid the particular injury-causing

conduct." City of Canton, 489 U.S. at 390-91. Rather, satisfying

this standard typically requires demonstrating that policymakers

were aware of, and acquiesced in, "a pattern of similar

constitutional violations by untrained employees." Cosenza, 120

F.4th at 38 (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)).

Municipal liability can attach following a single constitutional

injury only in "a narrow range of circumstances" in which the

plaintiff can establish that a constitutional violation was a

"highly predictable consequence of a failure to equip law

enforcement officers with specific tools to handle recurring

situations." Young, 404 F.3d at 25-26.

- 23 - Here, Plaintiffs premise their Monell claim on a single

incident -- the fatal shooting of Conlon -- and the complaint does

not identify any prior "similar constitutional violations" by

untrained police officers that would have put the City on notice

of any deficiency in its training program. Cosenza, 120 F.4th at

38. The district court thus dismissed the claim on the ground

that Plaintiffs failed to allege that the City acted with

deliberate indifference.

On appeal, Plaintiffs argue that the need to train and

supervise officers on "the use of deadly force including the use

of beanbag shotguns" and "responding to persons with mental

illness" was "so obvious as to constitute deliberate indifference

to Conlon's constitutional rights." In other words, Plaintiffs

argue they have adequately alleged a Monell claim on a single-

incident theory for the City's failure to adequately train officers

on these two topics.

But the complaint has not pleaded any facts to support

this contention, as it must do. The complaint does not contain

any factual allegations about the substance or extent of training

that NPD officers did receive. Nor do its factual allegations

give rise to a plausible inference that the need for training to

avoid incidents like that which transpired here was "so patently

obvious" that any failure to provide such training would have

amounted to deliberate indifference. Connick, 563 U.S. at 62.

- 24 - If anything, Plaintiffs' contention that the

Officer-Defendants had never fired a beanbag shotgun "in an active

situation" prior to the incident in question undermines the notion

that the need for more or better training on the weapon should

have been evident to the City. See City of Oklahoma City v.

Tuttle, 471 U.S. 808, 823-24 (1985) (holding that a single shooting

incident is insufficient to establish municipal liability for

inadequate police training). In the same vein, the

Officer-Defendants' decision to call upon specialized resources

that the City makes available for responding to mental-health

emergencies, including by requesting assistance from the Council

and the full-time NPD social worker, certainly suggests that the

City provides at least some training on addressing situations

resulting from mental health issues. Indeed, Plaintiffs expressly

allege as much by pleading that "NPD training on how to respond to

someone with mental . . . illness is minimal." "The fact that

training is imperfect or not in the precise form a plaintiff would

prefer is insufficient" to show deliberate indifference. Young,

404 F.3d at 27. We therefore affirm the district court's dismissal

of Plaintiffs' Monell claim against the City.

We hold the same with respect to Plaintiffs'

failure-to-train claim against the City under Title II of the ADA.

42 U.S.C. § 12132. As the district court noted, it is an open

question in this Court whether Title II of the ADA requires a

- 25 - police department "to draft policies and train officers on the

needs of the mentally ill public." Buchanan v. Maine, 469 F.3d

158, 177 (1st Cir. 2006). However, where the police department

"did in fact have such policies and training," we have held that

a plaintiff cannot maintain a viable ADA claim by alleging that

such policies and training are inadequate. Id. (holding that

plaintiff could not maintain an ADA failure-to-train claim based

on a theory "that police training, which was provided, was

insufficient"). Because that is Plaintiffs' allegation here, the

district court properly dismissed this claim.

Finally, we address Plaintiffs' claims against the City

under the ADA and the Rehabilitation Act for allegedly failing to

accommodate Conlon's disability. Plaintiffs' argument as to the

dismissal of the Title II claim is that the police officers,

knowing Conlon suffered a disability in the form of his mental

illness, failed to reasonably accommodate that disability.

In favor of Plaintiffs, we make three assumptions

arguendo:

(1) We assume that a Title II ADA claim can be asserted

for events during the arrest of a suspect based on probable cause

before the scene has been secured. But see Hainze v. Richards,

207 F.3d 795 (5th Cir. 2000); Rubin v. De La Cruz, No. 24-20015,

- 26 - 2025 WL 764603, at *3-4 (5th Cir. Mar. 11, 2025) (reinforcing

Hainze).4

(2) While we agree that the individual line officers

cannot be held liable for damages under Title II, and we agree

with Chief Judge Sutton's analysis in Jones v. City of Detroit, 20

F.4th 1117 (6th Cir. 2021), that the municipality itself cannot be

held vicariously liable for its officers' actions under Title II,

we assume without deciding that the "public entity" element of

Title II does not preclude claims brought against relatively

high-level officers of the City -- in this case, Captains Marzilli

and Dowling. But see Gohier v. Enright, 186 F.3d 1216 (10th Cir.

1999)(affirming district court's denial of motion to amend

complaint to add a claim under the ADA where officers used force

against individual in self-defense and complaint did not allege a

reasonable-accommodation theory).

(3) We assume that Conlon was a "qualified individual"

as further defined in the text of Title II. See 42 U.S.C.

§ 12131(2) (defining a "qualified individual with a disability" as

"an individual with a disability who, with or without reasonable

modifications to rules, policies, or practices . . . meets the

essential eligibility requirements for the receipt of services or

4 The issue was raised but not resolved in the Supreme Court case of City and County of San Francisco v. Sheehan, 575 U.S. 600 (2015). See id. at 610.

- 27 - the participation in programs or activities provided by a public

entity"); cf. Buchanan, 469 F.3d at 163, 171 (finding it undisputed

that plaintiff was a "qualified individual" when he suffered from

mental health challenges that included schizophrenia).

Even with these assumptions, the pleadings do not state

a Title II failure-to-accommodate claim. If Title II imposed any

duty in this situation, it was to make a "reasonable

accommodation." The reasonableness of any accommodation

necessarily takes account of both the context and the facts and

circumstances known to the officers when they acted. See Sheehan

v. City and County of San Francisco, 743 F.3d 1211, 1232 (9th Cir.

2014) ("[C]ircumstances inform the reasonableness analysis under

the ADA, just as they inform the distinct reasonableness analysis

under the Fourth Amendment."), rev'd in part, cert. dismissed in

part sub nom. City and County of San Francisco v. Sheehan, 575

U.S. 600, 610; Bahl v. County of Ramsey, 695 F.3d 778, 784 (8th

Cir. 2012) (noting that "[e]ven if the ADA applied to [a] traffic

stop," the defendant-officer was not required to accommodate the

plaintiff's disability during the traffic stop); Roell v. Hamilton

County, 870 F.3d 471, 489 (6th Cir. 2017) ("In the context . . .

surrounding Roell's arrest, . . . Roell cannot make out a viable

ADA claim under her failure-to-accommodate theory."); Bircoll v.

Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007) (noting

that the circumstances "presented by criminal activity and the

- 28 - already onerous tasks of police on the scene go . . . to the

reasonableness of the requested ADA modification").5

Nothing in the pleadings makes it plausible that the

Officer-Defendants reacted to Conlon as they did "by reason of his

disability." Further, nothing in the pleadings provides a basis

for holding that any of the officers on scene were on notice of a

reasonable accommodation that would be necessary to prevent

discrimination. Nor do they establish a plausible Title II case

that Conlon was denied access to the City's "services, courses, or

activities" in the course of the officers' attempt to arrest him.

In short, there is no plausible claim that the officers

discriminated against Conlon on the basis of his mental health

disability. See Buchanan, 469 F.3d at 175 (affirming summary

judgment in favor of Maine on Title II claim where plaintiff could

not identify specific services that the state should have but

failed to provide to plaintiff); King v. Hendricks County Comm'rs,

954 F.3d 981, 989 (7th Cir. 2020) (affirming police officer did

not violate Title II where court was "given no reason to believe

that [the officer's] response would have been different had someone

not suffering from a mental illness done the same thing" and

5 The Fourth Amendment issues and the ADA issues require distinct analyses. See Gray v. Cummings, 917 F.3d 1 (1st Cir. 2019) (analyzing Title II liability separately from the reasonableness of an officer's use of force under the Fourth Amendment).

- 29 - plaintiff did not propose anything that the officer "should have

done differently to accommodate the decedent's mental illness");

De Boise v. Taser Int'l, Inc., 760 F.3d 892, 899 (8th Cir. 2014)

(finding officers did not violate Title II "[d]ue to the unexpected

and rapidly evolving circumstances" of encounter where officers

observed individual's "aggressive and irrational behavior and his

continued non-compliance with their demands").

Lastly, because "[t]he same standards . . . apply to

claims under the ADA and under the Rehabilitation Act,"

Calero-Cerezo v. U.S. Dep't of Just., 355 F.3d 6, 11 n.1 (1st Cir.

2004), we also affirm dismissal of Plaintiffs' claims against the

City under the Rehabilitation Act.

VI.

For the reasons described, we vacate the judgment on

Plaintiffs' claims against Officer-Defendants for the use of

excessive force in violation of 42 U.S.C. § 1983 (Count 1) as it

relates to the fatal shooting and remand the matter for further

proceedings on that claim. The remainder of the judgment is

affirmed. The parties shall bear their own costs.

So ordered.

- Dissenting Opinion Follows -

- 30 - AFRAME, Circuit Judge, dissenting in part. I agree with

all aspects of the majority opinion save one. I would permit

discovery on the plaintiffs' section 1983 claim based on Sergeant

Chisholm's deployment of the beanbag shotgun against Conlon.

To bring a section 1983 claim, the plaintiffs must

establish that the officer is not immune from such suits. See

Lachance v. Town of Charlton, 990 F.3d 14, 20 (1st Cir. 2021).

This requires a two-part inquiry: (1) was the officer's use of

force a violation of the Fourth Amendment, and (2) if so, was the

unlawfulness of the officer's conduct clearly established when the

officer acted. See id. Based on the complaint's allegations, the

majority concludes that Sergeant Chisholm is entitled to qualified

immunity because, even assuming that the allegations about the

beanbag shotgun constitute a separate Fourth Amendment claim and

that these allegations, if true, constitute a violation of Conlon's

rights, the unlawfulness of Chisholm's conduct was not clearly

established when he acted. In my view, the complaint's allegations

satisfy both parts of the inquiry: Chisholm violated Conlon's

Fourth Amendment rights by firing the beanbag shotgun at him, and

the unlawfulness of that conduct was clearly established when the

incident occurred.

A. Fourth Amendment Violation

An officer violates the Fourth Amendment by using force

to effect a particular seizure that is unreasonable under the

- 31 - circumstances. See Graham v. Connor, 490 U.S. 386, 396 (1989).

Whether an officer's conduct is unreasonable "requires a careful

balancing of 'the nature and quality of the intrusion on the

individual's Fourth Amendment interests' against the

countervailing governmental interests at stake." Id. (quoting

Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Assessments of

reasonableness "must be judged from the perspective of a reasonable

officer on the scene." Id.

I begin by evaluating "the nature and quality" of

Sergeant Chisholm's intrusion on Conlon's Fourth Amendment

interests. Specifically, I consider the degree of force that

Chisholm allegedly attempted to apply by firing the beanbag shotgun

at Conlon's collarbone from twelve feet away.6

The plaintiffs' complaint refers to the use of a beanbag

shotgun from close range as a use of force that "can cause serious

injury or death." According to the complaint, the operative Newton

Police Department (NPD) policy identifies the beanbag shotgun as

a weapon that delivers "blunt, non-lethal force" that is "intended

to incapacitate the subject and prevent further aggressive

actions." The policy describes the force inflicted as "greater

6 The complaint alleges that Chisholm misfired the beanbag shotgun and so Conlon was not hit but nonetheless contends that Chisholm's unlawful conduct led to Conlon's fatal shooting moments later. The majority assumes, correctly in my view, that we must evaluate the immunity argument as if the beanbag shotgun worked as expected to immediately incapacitate Conlon.

- 32 - than that of a thrown fastball by a major league baseball pitcher"

and accordingly limits an officer's use of the shotgun to

circumstances where lesser forms of force are ineffective or

inappropriate. See Jennings v. Jones, 499 F.3d 2, 11–16, 19–20

(1st Cir. 2007) (noting that evidence regarding officer training

is relevant in excessive force inquiry).

There is also caselaw that supports that firing a beanbag

shotgun from close range "can cause serious injury or death." See,

e.g., Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir. 2001)

(beanbag projectile shot from thirty feet away "removed [the

individual's] left eye and lodged pieces of lead shot in his

skull"); Glenn v. City of Columbus, 375 F. App'x. 928, 930 (11th

Cir. 2010) (unpublished) (suspect died from internal bleeding

after being shot by a beanbag gun from a distance of twenty-one

feet); Myers v. Brewer, 773 F. App'x 1032, 1035 (10th Cir. 2019)

(unpublished) (suspect died from a beanbag round shot to the chest

from a distance of six-to-eight feet); cf. Mercado v. City of

Orlando, 407 F.3d 1152, 1155 (11th Cir. 2005) (suspect suffered a

traumatic brain injury from a shot to the head by a similar

less-than-lethal "Sage Launcher," which delivers "approximately

the energy of a professionally-thrown baseball," after the weapon

was fired from a distance of six feet). Based on the NPD policy

and the assembled cases, I consider Sergeant Chisholm's alleged

use of the beanbag shotgun against Conlon from twelve feet away to

- 33 - constitute a substantial imposition on Conlon's Fourth Amendment

interests.

I next consider whether this substantial intrusion was

warranted under the circumstances. Under Graham, the relevant

factors to consider include: "the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight." 490 U.S. at 396.

I start with "the severity of the crime" at issue.

According to the complaint, although the police originally arrived

on scene to investigate the report of an armed robbery of a candy

store, when Sergeant Chisholm used the beanbag shotgun that was no

longer the police's understanding of the event. See Lachance, 990

F.3d at 25 (stating that the use of force must be "evaluated for

objective reasonableness based upon the information the officers

had when the conduct occurred" (quoting County of Los Angeles v.

Mendez, 581 U.S. 420, 428 (2017))). By then, the officers on site

had determined that Conlon was suffering "a mental health issue";

the captains in charge had indicated to the subordinate officers

that there was "all the time in the world" to resolve the

situation; and officers with training in metal health emergencies

had been summoned to the scene. Based on these alleged facts, a

reasonable police officer in Chisholm's position when he fired the

beanbag shotgun would have understood the incident to involve an

- 34 - agitated person in the throes of a mental health emergency and not

a criminal attempting to flee from an armed robbery.

Likewise, the second and third Graham factors -- whether

Conlon posed an immediate threat to officer safety and whether

Conlon was actively resisting or attempting to evade arrest when

force was used -- lead me to conclude that the substantial

intrusion on Conlon's Fourth Amendment rights was unwarranted

under the circumstances. See Graham, 490 U.S. at 396.

According to the complaint, before Sergeant Chisholm

attempted to fire the beanbag shotgun at Conlon, Officer Scaltreto

had spent approximately twenty minutes negotiating with Conlon to

disarm himself on the third floor of the apartment building.

During that time, Conlon held the same small kitchen knife that he

possessed outside the candy store, and for some portion of the

interaction, he also held a fire extinguisher.

Initially, Conlon declined the police's request to drop

the knife and fire extinguisher. But Conlon at no point used these

physical items to harm, attempt to harm, or threaten to harm

another person. And the complaint further alleges that Conlon

"did not make any verbal threats that he would hurt the officers

or anyone else besides himself."

As Officer Scaltreto spoke to Conlon, Conlon indicated

that he believed that he was participating in a simulation and

asked to speak to his father. Adopting Conlon's premise, Scaltreto

- 35 - told Conlon that the simulation would not permit contact with his

father unless he dropped the knife. Officers also promised Conlon

that he would not be harmed. Conlon eventually complied with

Scaltreto's request to place the knife on the floor. When

Scaltreto then asked Conlon to do the same with the fire

extinguisher, he complied with that request too.

At that point, according to the complaint, Conlon was

unarmed, in compliance with officer instructions, and barricaded

on the third floor of the apartment building where at least eight

other officers were present. There were no civilians in the

building and additional officers were present on the lower floors.

It is a fair inference from these alleged facts that

when Sergeant Chisholm used the shotgun, Conlon posed a minimal

risk "to evade arrest by flight" or threaten "the safety of the

officers or others." See Graham, 490 U.S. at 396. Conlon had

acceded to officer commands and the situation had de-escalated.

There is no suggestion from the complaint that after Conlon

voluntarily disarmed, a police officer gave him further commands

such as to give himself up, place his hands up or on his head,

step further away from the knife, or take any other similar action.

There is also no suggestion that the police employed any lesser

type of force to effectuate an arrest before Sergeant Chisholm

fired the beanbag shotgun, even though NPD policy required

considering such options. See Glenn v. Washington County, 673

- 36 - F.3d 864, 876 (9th Cir. 2011) (stating that "police are required

to consider what other tactics if any were available, and if there

were clear, reasonable, and less intrusive alternatives available

to the force employed, that militates against finding the use of

force reasonable" (citation modified)).7

Rather, the complaint alleges that, immediately after

Conlon voluntarily disarmed, Sergeant Chisholm fired the beanbag

shotgun at Conlon's upper body from close range. Under the

circumstances, such conduct was unreasonable. See Jennings, 499

F.3d at 15 (stating that it is a "common sense proposition that it

is not reasonable for police officers to increase their use of

physical force after an arrestee who has been resisting arrest

stops resisting for several seconds").

This is especially so considering the complaint's

allegation that the police knew that Conlon was suffering a mental

health crisis. While using escalatory but less-than-lethal force

against a dangerous criminal may end a confrontation, doing so to

subdue a person in the throes of a mental health emergency "may,

in some circumstances at least, exacerbate the situation." Deorle,

7 The majority takes the view that officers could have reasonably concluded that Conlon remained a threat because the knife was still within reach and therefore methods involving a lesser amount of force would be insufficient. The critical allegation in this case, though, is not that Conlon potentially still had access to the knife, but that he had just complied with Officer Scaltreto's request to drop it.

- 37 - 272 F.3d at 1283. Here, based on the alleged facts in the

complaint, a reasonable officer on the scene would have viewed

Conlon as "an unarmed, emotionally distraught individual," and

thus understood the encounter to pose a different set of concerns

from those presented by a standoff with "an armed and dangerous

criminal." Id. at 1282; cf. Gray v. Cummings, 917 F.3d 1, 11 (1st

Cir. 2019) ("[T]he level of force that is constitutionally

permissible in dealing with a mentally ill person 'differs both in

degree and in kind from the use of force that would be justified

against a person who has committed a crime or who poses a threat

to the community.'" (quoting Bryan v. MacPherson, 630 F.3d 805,

829 (9th Cir. 2010))). In situations like this, "the use of

officers and others trained in the art of counseling is ordinarily

advisable, where feasible, and may provide the best means of ending

a crisis." Deorle, 272 F.3d at 1283. Yet, even though the

complaint alleges that such officers had been called and were

enroute, Sergeant Chisholm fired at Conlon anyway.

In sum, the complaint alleges that the police confronted

Conlon, a mentally ill man holding a small kitchen knife, in the

hall of a third-floor apartment building where he was surrounded

by police and no civilians were present. Based on police

negotiations, the situation seemingly de-escalated when Conlon

disarmed himself based on police promises that he would not be

hurt and that they would arrange to call his father. Having

- 38 - de-escalated the situation, law enforcement's very next step was

for Chisholm to escalate matters by firing a beanbag shotgun at

Conlon from close range. If, as the complaint alleges, Chisholm

took that step without evidence of further escalation by Conlon or

Conlon failing to follow additional officer commands, he, in my

view, acted unreasonably under the circumstances and thus violated

Conlon's Fourth Amendment rights.

B. Clearly Established

I now turn to the second component of the

qualified-immunity inquiry -- whether the unlawfulness of

Chisholm's conduct was clearly established when the alleged

misconduct occurred. See Lachance, 990 F.3d at 20. In concluding

that Sergeant Chisholm was entitled to qualified immunity, the

majority decides that Chisholm did not violate clearly established

law by attempting to use the less-than-lethal beanbag shotgun in

an effort to bring the encounter with Conlon to a rapid end and

thereby "reduc[e] the risk to all in the encounter."

I respectfully disagree with this conclusion. In my

view, Sergeant Chisholm's deployment of such force in the

de-escalated posture he allegedly faced violates clearly

established Fourth Amendment law. Since at least 2007, it has

been clearly established in this circuit that "the law [prohibits]

the use of increased force on a suspect no longer offering

resistance . . . ." Heredia v. Roscoe, 125 F.4th 34, 47 (1st Cir.

- 39 - 2024) (quoting Jennings, 499 F.3d at 17). Indeed, we have stated

that this principle is "readily apparent even without clarifying

caselaw." Id. (quoting Jennings, 499 F.3d at 17).

We have applied this principle at least twice to deny an

officer qualified immunity. In Jennings, an individual was

"challenging authority and resisting arrest," which justified the

use of force. 499 F.3d at 11. However, we held that a police

officer violated clearly established law by increasing the quantum

of force after the individual had stopped resisting for "several

seconds." Id. at 14. We described the officer as having breached

the obvious restriction on "the increased use of force on a

previously resisting but now non-resisting arrestee." Id. at 18.

Similarly, in Raiche v. Pietroski, 623 F.3d 30 (1st Cir.

2010), we decided that qualified immunity was unavailable to a

police officer who tackled a person after the person stopped

fleeing in compliance with an officer's command and who presented

no indicia of dangerousness. See id. at 39; see also Parker v.

Gerrish, 547 F.3d 1, 10 (1st Cir. 2008) (concluding that there was

a Fourth Amendment violation based on the use of a taser against

a non-presently resisting person even though the person had

harassed and resisted the officer earlier in the encounter).

Certain courts of appeals have applied this principle in

the specific context of using beanbag shotguns. See Myers, 773 F.

App'x. at 1038; Council v. Sutton, 366 F. App'x. 31, 36-37 (11th

- 40 - Cir. 2010) (unpublished); Deorle, 272 F.3d at 1286. And others

have applied it to the use of additional types of less-than-lethal

weapons. See, e.g., Jones v. Treubig, 963 F.3d 214, 227 (2d Cir.

2020); Goodwin v. City of Painesville, 781 F.3d 314, 328 (6th Cir.

2015); Abbott v. Sangamon County, 705 F.3d 706, 732 (7th Cir.

2013). It thus appears that there is a clearly established

principle that an officer violates the Fourth Amendment by using

escalatory force -- including less-than-lethal force -- when a

person is no longer resisting or posing an imminent danger.8

In my view, the complaint asserts a violation of this

established principle. As discussed above, as alleged, at the

time Sergeant Chisholm fired the beanbag shotgun, the police had

isolated Conlon inside the apartment building; the police captains

had determined that Conlon was suffering a "mental health issue";

and other officers had called for appropriate mental-health

assistance. The police spoke with Conlon inside the apartment

building for twenty minutes until Officer Scaltreto successfully

convinced Conlon to release the knife. Even though Chisholm knew

that Conlon had just complied with officer commands to release the

knife and had thereafter taken no further aggressive or resistive

8 The majority cites cases in which various circuit courts have found there was no use of excessive force (or qualified immunity was warranted) based on an officer's use of a beanbag gun. However, none of those cases involve situations like this one, where the subject allegedly had just complied with a directive from the police to disarm.

- 41 - actions, Chisholm still fired the beanbag shotgun at Conlon. Thus,

the complaint alleges that Chisholm used increased force

immediately after Conlon engaged in an apparent show of cooperation

by dropping the knife. That conduct, if true, violates clearly

established Fourth Amendment law.

In this regard, I share the Ninth Circuit's view that

"the 'desire to resolve quickly a potentially dangerous situation

is not the type of governmental interest that, standing alone,

justifies the use of force that may cause serious injury.'" Glenn,

673 F.3d at 876-77 (quoting Deorle, 272 F.3d at 1281). That is

especially so where, as here, the police are "dealing with an

emotionally disturbed individual who is creating a disturbance or

resisting arrest, as opposed to a dangerous criminal." Id. at

877. "[W]hen [an arrest] is intended solely to prevent a mentally

ill individual from harming himself, the officer effecting [the

arrest] has a lessened interest in deploying potentially harmful

force." Est. of Armstrong v. Vill. of Pinehurst, 810 F.3d 892,

909-10 (4th Cir. 2016).

To be sure, the complaint acknowledges that the

confrontation with Conlon began with the police seeing Conlon

outside a storefront holding a small kitchen knife after receiving

a call about an armed robbery of a nearby store. Moreover, Conlon

ignored initial police orders to drop the knife while fleeing

toward the neighboring apartment building. Perhaps at that point,

- 42 - the use of escalatory, less-than-lethal force to facilitate

Conlon's arrest would have been permissible. But, as I have noted,

at the time Sergeant Chisholm allegedly fired the beanbag shotgun,

the situation had evolved. Conlon had not threatened anyone but

himself with the knife during the encounter, and he was no longer

possessing that weapon when Chisholm fired. Given these alleged

facts, Chisholm's action was an uncalled-for escalation of force.

Excessive force cases are necessarily fact dependent,

and everything said here is premised entirely on the well-pleaded

allegations in the complaint. If the beanbag shotgun claim

proceeded, differences, even subtle ones, between what is alleged

and what can be proven could change whether Sergeant Chisholm's

use of force violated the Fourth Amendment and whether such force

could be considered a violation of clearly established law.

However, at this stage, we must ask "whether under the

plaintiff[s'] version of the facts a reasonable officer should

have known that the degree of force used was plainly excessive."

Morelli v. Webster, 552 F.3d 12, 25 (1st Cir. 2009). Because I

believe that the version of events alleged in the complaint meets

that standard, I would allow discovery to proceed on the beanbag

shotgun claim.

- 43 -