UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Estate of Aaron Bruce Cadman
v. Civil No. 16-cv-202-AJ Opinion No. 2018 DNH 018 Stephen Dennis and the Town of Henniker, New Hampshire
MEMORANDUM AND ORDER
In November 2014, Henniker Police Officer Stephen Dennis
shot Aaron Bruce Cadman while on duty. The shooting was not
fatal, and in May 2016, Cadman filed this action against Dennis
and the Town of Henniker (“Town”) alleging violations of the
Fourth Amendment and state law. Specifically, Cadman alleged
federal claims of excessive force against Dennis (Count I) and
failure to train and supervise against the Town (Count II), both
brought pursuant to 42 U.S.C. § 1983 (Count I); and state-law
claims of assault (Count III), battery (Count IV), and negligent
use of force (Count V) against Dennis and vicarious liability
against the Town (Count VI). The case was assigned to the
undersigned magistrate judge, to whose jurisdiction the parties
consented. Cadman’s estate (the “Estate”) was substituted as a
party in August 2016, after Cadman died of causes unrelated to
the shooting. Defendants moved for judgment on the pleadings on the
state-law claims. The court granted that motion as to the
vicarious liability claim against the Town, but denied it
without prejudice as to any of the state-law claims against
Dennis. With discovery closed, defendants now move for summary
judgment on all remaining claims. The Estate concedes that the
Town is entitled to summary judgment on Count II, the failure to
train and supervise claim, but otherwise objects.
Because Dennis is entitled to qualified immunity on the
federal claim and municipal immunity on the state-law claims,
the court grants defendants’ motion for summary judgment.
I. STANDARD OF REVIEW
Summary judgment is appropriate where the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “If a nonmovant bears the ultimate burden of proof on a
given issue, she must present ‘definite, competent evidence’
sufficient to establish the elements of her claim in order to
survive a motion for summary judgment.” Pina v. Children’s Place,
740 F.3d 785, 795–96 (1st Cir. 2014) (quoting Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 822 (1st Cir. 1991)). The court must “draw all
reasonable inferences from the record in the light most favorable
to the nonmoving party, disregarding any ‘conclusory allegations,
2 improbable inferences, or unsupported speculation.’” McGrath v.
Tavares, 757 F.3d 20, 25 (1st Cir. 2014) (quoting Alicea v. Machete
Music, 744 F.3d 773, 778 (1st Cir. 2014)). Where, as here, the
moving party raises a qualified immunity defense, the nonmoving
party has the burden of showing that qualified immunity does not
apply. See Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015)
(second prong); cf. Lopera v. Town Of Coventry, 640 F.3d 388, 395–
96 (1st Cir. 2011) (first prong); Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011).
II. BACKGROUND
The relevant facts appear to be largely undisputed. On
November 26, 2014, Henniker Police Officer Stephen Dennis was on
duty in a marked Henniker Police Department (“HPD”) cruiser.
Doc. no. 24-2 ¶ 7. At just after 5:00 p.m., Merrimack County
Dispatcher Danica Gorham called Dennis’s cell phone1 and informed
him that dispatch had received a “BOLO” for a vehicle stolen in
a “strong arm robbery” (the “vehicle”). Id. ¶ 8. Gorham
informed Dennis that the vehicle was being tracked using OnStar
and was located on Route 202 in Henniker. Id. Dennis
understood that the driver of the stolen vehicle had hit or
1 Gorham called Dennis directly because Merrimack County Dispatch was having communications issues and had lost radio contact. Doc. no. 24-2 ¶ 7.
3 attempted to hit the vehicle’s owner and should be considered
“armed and dangerous.”2 Id. Only a few miles away, Dennis
activated his emergency lights and proceeded to the route.
Id. ¶ 9; doc. no. 27-4 at 27.
Traffic was heavy due to snowy conditions. Doc. no. 24-2 ¶
9; doc. no. 24-5 ¶ 3. While en route, Dennis heard Hillsborough
dispatch calls over his radio updating the location of the
vehicle. Doc. no. 24-2 ¶ 9. Dennis made contact with a vehicle
matching the description of the vehicle in question. Id.
Dennis deactivated his emergency lights and contacted
Hillsborough dispatch to confirm the license plate of the
vehicle. Id.; doc. no. 27-4 at 18. Once confirmed, Dennis
reactivated his emergency lights to signal to the driver to pull
over. Doc. no. 24-2 ¶ 9.
The driver accelerated and pulled into the oncoming lane of
traffic. Id. ¶ 9. Dennis activated his siren and pursued the
vehicle. Id. ¶ 10. Traffic was generally moving at around
thirty miles-per-hour due to the snow. Doc. no. 24-5 ¶ 3; doc.
no. 27-4 at 15. Dennis pursued the vehicle at approximately
2 It is unclear in the record whether Gorham informed Dennis that the suspect was “armed and dangerous” or Dennis arrived at this belief on his own based on the reference to a “strong arm robbery.” See doc. no. 24-2 ¶ 8; doc. no. 27-4 at 8, 9, 28. It is similarly unclear whether Gorham instructed Dennis to “use extreme caution.” Doc. no. 27-4 at 8, 29.
4 fifty miles-per-hour, but was unable to keep up. Doc. no. 27-4
at 6, 13, 14, 27. While in pursuit, Dennis put a call out over
Hillsborough dispatch. Id. at 7.
Dennis was able to maintain visual contact with the vehicle
during the pursuit. Doc. no. 24-2 ¶ 10. The vehicle remained
in the oncoming lane of traffic. Doc. no. 27-4 at 13. Dennis
saw the vehicle spin, indicating that the driver had lost
control. Id. at 7; doc. no. 24-2 ¶ 10. As Dennis approached,
he observed the vehicle in the middle of the road perpendicular
to traffic with the driver’s side facing Dennis. Doc. no. 24-2
¶ 11; doc. no. 27-5. The vehicle had collided with a red pickup
truck traveling in the oncoming lane, which had sustained damage
and was off to the side of the roadway. Doc. no. 24-2 ¶ 11;
doc. no. 27-5. The vehicle had also collided with a black
pickup truck, which had come to a stop fifteen-to-twenty feet
from the vehicle in the right breakdown lane. Doc. no. 24-2 ¶
11; doc. no. 24-5 ¶ 4; doc. no. 24-6 ¶ 4. Another car had
stopped behind the black pickup truck in the right lane. Doc.
no. 24-6 ¶ 6; doc. no. 27-5.
Dennis stopped his cruiser in the roadway approximately
level with the red pickup truck. Doc. no. 24-2 ¶ 11; doc. no.
24-6 ¶ 6; doc. no. 27-5. The driver of the stolen vehicle,
later identified as Aaron Bruce Cadman, exited the vehicle.
5 Doc. no. 24-2 ¶ 12; doc. no. 24-6 ¶ 6. Dennis exited his
cruiser, unholstered his weapon, and pointed it at Cadman. Doc.
no. 24-2 ¶ 13; doc. no. 24-5 ¶ 5; doc. no. 24-6 ¶ 6. Dennis
shouted at Cadman to show his hands, but Cadman did not respond.
Doc. no. 24-2 ¶ 13; doc. no. 24-6 ¶ 6. Dennis slowly approached
Cadman with his weapon drawn, repeatedly shouting at Cadman to
show his hands. Doc. no. 24-2 ¶ 13; doc. no. 24-6 ¶ 6. Cadman
kept his back to Dennis and started rummaging in the vehicle.3
Doc. no. 24-2 ¶ 13; doc. no. 24-5 ¶ 6; doc. no. 24-6 ¶ 6.
Dennis reached the back of the black pickup truck and shouted
multiple times for Cadman to show his hands. Doc. no. 24-2
¶ 14; doc. no. 24-5 ¶¶ 5, 6; doc. no. 24-6 ¶¶ 6, 7. Cadman kept
his back to Dennis and continued to rummage in the driver’s side
of the vehicle. Doc. no. 24-2 ¶ 14; doc. no. 24-5 ¶ 6; doc. no.
24-6 ¶ 7.
Concerned for the safety of himself and others at the
scene, Dennis fired a single shot, striking Cadman in the arm.
Doc. no. 24-2 ¶ 15, 16; doc. no. 24-5 ¶ 6; doc. no. 24-6 ¶ 7.
Cadman fell to the ground, and Dennis closed the distance and
checked Cadman for weapons. Doc. no. 24-2 ¶ 15; doc. no. 24-6 ¶
3 There is conflicting evidence as to whether Cadman at one point looked over his shoulder at Dennis. Compare, e.g., doc. no. 24-2 ¶ 13; doc. no. 24-6 ¶ 7; doc. no. 27-4 at 24 with doc. no. 27-4 at 21.
6 7. Not finding any, Dennis identified Cadman and began tending
to his medical needs. Doc. no. 24-2 ¶ 15; doc. no. 27-4 at 36.
III. DISCUSSION
The Estate currently has a federal claim pending against
Dennis for excessive force, a federal claim pending against the
Town for failure to train and supervise, and state-law claims
pending against Dennis for assault, battery, and negligent use
of force. As noted, however, the Estate concedes that the Town
is entitled to summary judgment on the failure to train and
supervise claim. Thus, defendants’ motion for summary judgment
is granted as to Count II, leaving Dennis the sole remaining
defendant in this action. The court will address the claims
against him in turn.
A. Excessive Force
The Estate seeks to recover under 42 U.S.C. § 1983 for the
use of excessive force in violation of the Fourth Amendment.4
Dennis contends that he is entitled to summary judgment on this
claim because, among other reasons, the doctrine of qualified
immunity shields him from suit. As noted above, when the party
moving for summary judgment raises qualified immunity as a
4 The complaint also asserts violations of the Fourteenth Amendment, but does not articulate an independent theory under this provision.
7 defense, the non-movant bears the burden of demonstrating that
qualified immunity does not apply. See Mitchell, 790 F.3d at
77; cf. Lopera, 640 F.3d at 395-96; al-Kidd, 563 U.S. at 735.
Police officers “are entitled to qualified immunity under §
1983 unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct
was ‘clearly established at the time.’” Dist. of Columbia v.
Wesby, ___ S. Ct. ___, 2018 WL 491521, at *10 (Jan. 22, 2018)
(citation omitted). “Clearly established means that, at the
time of the officer’s conduct, the law was sufficiently clear
that every reasonable official would understand what he is doing
is unlawful.” Id. (citation internal quotation marks omitted).5
Put differently, “existing law must have placed the
constitutionality of the officer’s conduct beyond debate.” Id.
(citation and internal quotation marks omitted). “This
demanding standard protects all by the plainly incompetent or
those who knowingly violate the law.” Id. (citation and
internal quotation marks omitted).
5 The court focuses on the “clearly established” prong of the qualified immunity analysis because it is dispositive of the excessive force claim. See Pearson v. Callahan, 555 U.S. 223, 237 (2009) (noting that it is often preferable to focus on the second prong in cases where “it is plain that a constitutional right is not clearly established by far from obvious whether in fact there is such a right”). The court therefore does not reach whether Dennis’s conduct violated the Fourth Amendment.
8 To be clearly established, the legal principle at issue
must be “settled law.” Id. at *11 (citation omitted). This
requires “controlling authority or a robust consensus of cases
of persuasive authority” demonstrating that a reasonable officer
should have known his conduct was unlawful at the time it
occurred. See id. (citation and internal quotation marks
omitted). “The precedent must be clear enough that every
reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.” Id. (citation
omitted). “Otherwise, the rule is not one that every reasonable
official would know.” Id. (citation and internal quotation
marks omitted).
This standard “also requires that the legal principle
clearly prohibit the officer’s conduct in the particular
circumstances before him.” Id. When determining whether an
officer violated clearly established law, courts must consider:
(a) whether the legal contours of the right in question were sufficiently clear that a reasonable officer would have understood that what he or she was doing violated the right, and (b) whether in the particular factual context of the case, a reasonable officer would have understood that his or her conduct violated the right.
Fernandez Salicrup v. Figueroa-Sancha, 790 F.3d 312, 325–26 (1st
Cir. 2015) (brackets omitted) (quoting Mlodzinski v. Lewis, 648
F.3d 24, 32-33 (1st Cir. 2011)). The Supreme Court has stressed
that courts “must not define clearly established rights at a
9 high level of generality, since doing so avoids the crucial
question [of] whether the official acted reasonably in the
particular circumstances that he or she faced.” Wesby, 2018 WL
491521, at *11 (citations and internal quotation marks omitted).
While “there can be the rare ‘obvious case,’ where the
unlawfulness of the officer’s conduct is sufficiently clear even
though existing precedent does not address similar
circumstances . . . , a body of relevant case law is usually
necessary to clearly establish the answer . . . .” Id.
(citations and internal quotation marks omitted). In other
words, “[a] rule is too general if the unlawfulness of the
officer’s conduct does not follow immediately from the
conclusion that the rule was firmly established.” Id.
(citations, internal quotations, and brackets omitted).
The Estate does not cite to any authority, controlling or
persuasive, addressing the particular circumstances at issue
here. But the Estate contends that it does not need to, as this
is the “obvious case” where the unlawfulness of Dennis’s conduct
is clear. To this end, the Estate argues, relying on Tennessee
v. Garner, 471 U.S. 1 (1985), that “[i]t has long been
established that a police officer may not use deadly force
unless a suspect is both fleeing and there is a significant
threat of death or serious physical injury to the officer or
10 others in harm’s way.” Doc. no. 27 at 9. The Estate contends
that Cadman “did not attempt to flee and did not make any
threatening gestures toward Dennis or others at the scene.” Id.
Thus, according to the Estate, it is clear that Dennis’s actions
violated Cadman’s rights.
The court disagrees for several reasons. First, there is
no requirement that a suspect be fleeing in order for deadly
force to be justified. Rather, “[t]he test for whether the use
of deadly force is excessive is whether an objectively
reasonable officer would believe that the suspect posed a
‘threat of serious physical harm either to the officer or
others.’” Young v. City of Providence ex rel. Napolitano, 404
F.3d 4, 23 (1st Cir. 2005) (quoting Garner, 471 U.S. at 12).
Accordingly, the mere fact Cadman was not fleeing does not, as
the Estate appears to suggest, defeat qualified immunity.
The Estate’s focus on Cadman’s gestures at the scene is
similarly at odds with established precedent. When analyzing
the objective reasonableness of an officer’s conduct, courts
must take into account the “totality of the circumstances.”
Garner, 471 U.S. at 9. Here, Dennis was informed that Cadman
had committed a “strong arm robbery” and was driving a stolen
vehicle. When Dennis attempt to stop that vehicle, Cadman sped
off, driving in excess of fifty miles-per-hour in snowy
11 conditions in the oncoming lane of traffic. Cadman came to a
stop only after colliding with two other vehicles. After making
contact with Cadman, Dennis repeatedly told Cadman to show his
hands. Cadman did not comply, and instead kept his back to
Dennis and rummaged in the driver’s side of the stolen vehicle.
When considering these facts in their totality, it is by no
means obvious that Cadman did not pose a threat of death or
serious harm to Dennis or others.
The Estate’s reliance on Garner is also misplaced. The
Supreme Court has admonished courts not to rely too heavily on
“Garner’s general test for excessive force,” at least in cases
that are not on all fours with the facts presented there. See
Mullenix v. Luna, 136 S. Ct. 305 (2015); Brosseau v. Haugen, 543
U.S. 194, 199 (2004) (per curiam). In Garner, the Supreme Court
held that it was unconstitutional for police to use deadly force
to prevent the escape of an unarmed burglary suspect. 471 U.S.
at 11. Those facts bear little resemblance to the case at bar,
as even setting aside the discussion in the preceding paragraph,
there is no suggestion here that Cadman was trying to flee when
Dennis shot him. Thus, Garner does not support a conclusion
that this is an “obvious” case.6
6 The Estate’s reliance on Whitefield v. Melendez-Rivera, 431 F.3d 1 (1st Cir. 2005), fails for essentially the same reasons. In Whitefield, the First Circuit held that the
12 Finally, the court is not persuaded by the Estate’s
arguments with respect to St. Hilaire v. City of Laconia, 71
F.3d 20 (1st Cir. 1995). The Estate cites to that case in
support of its contention that a police officer “cannot be the
beneficiary of his own conduct in attempting to establish a
qualified immunity defense.” Doc. no. 27 at 11. St. Hilaire
does not support such a broad proposition. See 71 F.3d at 27
(“But at the core of plaintiff’s case is not the broad
contention that the police have a duty to reduce the risk of
violence. . . . Plaintiff instead makes a narrower, more
specific claim.”). Indeed, the primary issue in St. Hilaire was
whether it was clearly established, for qualified immunity
purposes, that a police officer violated the Fourth Amendment
when he did not identify himself and state his purpose when
executing a search warrant on a home. See id. at 26-28. Short
of resolving this issue, the First Circuit held that even if
such a rule existed, it was not clearly established in 1990,
when the underlying incident occurred. Id. at 28. Thus, St.
defendants were not entitled to qualified immunity as a matter of law because there was a dispute as to whether the plaintiff was merely running away unarmed at the time he was shot, or had stopped running and turned toward the officers with a metal object in his hand. Id. at 7. There is no similar dispute in the record here.
13 Hilaire is both legally and factually distinguishable from the
present case.
For all of these reasons, the Estate has failed to
demonstrate that this is an “obvious case” where the
unlawfulness of Dennis’s conduct is clear. As the Estate relies
solely on that argument, and points to no “body of relevant case
law” addressing the particular circumstances of this case, it
has not borne its burden with respect to qualified immunity.
Dennis is therefore entitled to qualified immunity on the
excessive force claim.
Defendants’ motion for summary judgment is accordingly
granted as to Count I.
B. State-law Claims
The remaining counts are state-law claims against Dennis
for assault, battery, and negligent use of force. Dennis
contends that he is entitled to municipal immunity on these
claims under New Hampshire Revised Statutes Annotated (“RSA”) §
507-B, et seq. Alternatively, Dennis asserts that his conduct
is protected by official immunity. In the Estate’s view,
neither immunity doctrine applies.
The sole basis for this court’s jurisdiction over the
state-law claims is supplemental jurisdiction under 28 U.S.C. §
1367. But when, as here, all federal claims have been
14 dismissed, “it is an abuse of discretion for a district court to
retain jurisdiction over state law claims unless doing so would
serve the interests of fairness, judicial economy, convenience,
and comity.” See Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir.
2017) (citations and internal quotation marks omitted). These
factors weigh in favor of the court retaining jurisdiction over
the state-law claims in this case. Cadman elected to bring this
action in this court, and it has been pending here for the
better part of two years. The parties have actively litigated
the state claims in this venue, with the court having previously
addressed those claims in its order on defendants’ motion for
judgment on the pleadings. Moreover, both parties have fully
briefed the state-law issues in their summary judgment filings,
and neither party has asked the court to decline jurisdiction
over the state claims should it dismiss the federal claims. It
is also far more convenient to have this court address these
claims conclusively now, on the eve of trial, than for both
parties to have to start anew in state court. And finally,
while the undersigned has declined to address municipal immunity
in a different context on the basis that it presented a novel
question of state law, see Sargent v. Town of Hudson, 2017 DNH
210, at 30-31 (Sept. 7, 2017), no similar concern exists here
because the Estate has not raised the issue presented in that
15 case and the parties agree on the operative law. Thus, at least
in the context of this case, the state-law claims do not present
“a substantial question of state law that is better addressed by
the state courts.” Wilbur, 872 F.3d at 23 (citation omitted).
The court will accordingly address the state-law claims on their
merits.
The court turns first to municipal immunity. RSA 507-B:2
limits municipal liability to damages caused by “[the
municipality’s] fault or by fault attributable to it, arising
out of ownership, occupation, maintenance or operation of all
motor vehicles and all premises . . . .” These protections
extend to claims against a municipal employee so long as he “was
acting within the scope of his office and in good faith.” RSA
507-B:4, IV. Though the New Hampshire Supreme Court (“NHSC”)
has not defined “good faith” in the context of the municipal
immunity statute, the parties agree that Farrelly v. City of
Concord, 168 N.H. 430 (2015), provides the relevant standard.
In that case, the NHSC held that “to have immunity, [an]
official must have acted within the scope of his official duties
and have reasonably believed, at the time of the acts or
omissions complained of, that his conduct was lawful.”
Farrelly, 168 N.H. at 442 (citation, brackets, and internal
quotation marks omitted). Based on the parties’ agreement, the
16 court assumes without finding that Farrelly provides the
operative standard for “good faith.”7
There is no dispute that Dennis was acting within the scope
of his official duties when he shot Cadman. Thus, the sole
question for the purposes of municipal immunity is whether
Dennis reasonably believed, at the time of the shooting, that
his conduct was lawful. “Reasonable belief” has both subjective
and objective components: an officer is only entitled to
immunity if he “subjectively believed that his . . . conduct was
lawful and such belief was objectively reasonable.” Id. at 444
(emphasis in original).
7 The Estate brings both negligence and intentional tort claims. See Thompson v. Forest, 136 N.H. 215, 219 (1992) (noting that assault and battery are intentional torts). The NHSC has treated such claims differently for the purposes of municipal immunity. For negligence claims, the NHSC has required that there be “a nexus between the claim and the governmental unit’s ownership, occupation, maintenance, or operation of a motor vehicle or premises.” Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 696–97 (2013). But for intentional torts, the NHSC has said that municipal immunity is coextensive with sovereign immunity “regardless of whether the claims have a nexus to motor vehicles or premises.” McCarthy v. Manchester Police Dep't, 168 N.H. 202, 208 (2015). This distinction has no bearing on the present case, however, as the standard applied in Farrelly is the sovereign immunity standard that the NHSC has read into the municipal immunity statute for the purposes of intentional torts. See 168 N.H. at 442 (citing RSA 541-B:19, I(d), the sovereign immunity provision addressing intentional torts). Thus, this court need not conduct a separate analysis of the assault and battery claims.
17 To be subjectively unreasonable, an officer’s conduct must
be reckless or wanton. Id. at 445. Here, the Estate relies
upon the affidavit of its expert, George Kirkham, to contend
that Dennis’s conduct recklessly violated established law
enforcement policies and procedures. The NHSC has defined
recklessness as “conduct evincing disregard of or indifference
to consequences under circumstances involving danger to life or
safety of others, although no harm was intended.” Kukesh v.
Mutrie, 168 N.H. 76, 83 (2015) (internal quotation marks
omitted). Despite Kirkham’s repeated use of the word
“reckless,” nothing in his affidavit suggests that Dennis’s
conduct approached this level of culpability. Indeed, it is
undisputed in the record that Dennis decided to shoot Cadman
precisely because he believed Cadman posed a danger to life or
safety of others. Thus, no reasonable trier of fact could
conclude that Dennis’s actions were subjectively unreasonable
under the circumstances.
An act is objectively reasonable unless its unlawfulness
“would have been apparent to an objectively reasonable officer
standing in the defendants’ shoes.” Id. at 446 (brackets and
emphasis omitted) (quoting Cox v. Hainey, 391 F.3d 25, 31 (1st
Cir. 2004)). In contending that Dennis’s conduct was
objectively unreasonable here, the Estate appears to rely on the
18 same argument it raised with respect to the federal claim: that
it was “obvious” under the circumstances that Dennis’s conduct
was unlawful. As discussed above, the Estate has not pointed to
any case law demonstrating that Dennis’s conduct violated
federal law. The Estate similarly fails to cite any New
Hampshire authority that would make it apparent to an
objectively reasonable officer standing in Dennis’s shoes that
his conduct violated state law. As such, no jury could find
that Dennis’s conduct here was objectively unreasonable.
In sum, no reasonable trier of fact could conclude that
Dennis failed to act in “good faith” when he shot Cadman.8 As
such, Dennis is entitled to municipal immunity on the state-law
claims. Having so concluded, the court need not reach
defendants’ alternative official immunity argument.
8 In its order on defendants’ motion for judgment on the pleadings, the court relied on two other decisions from this district that found that the NHSC “would define the term ‘good faith’ in RSA 507-B:4 as ‘honesty in belief or purpose’ and ‘faithfulness to one’s duty or obligation.’” See doc. no. 17 at 6 (citing Maryea v. Baggs, No. 13-cv-318-LM, 2016 WL 1060226, at *6 (D.N.H. March 15, 2016); Crosby v. Strafford Cty. Dep’t of Corr., No. 12-cv-383-LM, 2015 WL 3484912, at *6 (D.N.H. June 2, 2015)). As the parties agree to an alternative definition of “good faith” for the purposes of the present analysis, the court need not address the state-law claims under the standard used in its earlier order. Nevertheless, the court would reach the same conclusion under that standard, as there is no evidence in the record suggesting that at the time of the shooting, Dennis lacked honesty in belief or purpose and was not faithful to his duties or obligations.
19 Defendants’ motion for summary judgment is accordingly
granted as to Counts III, IV, and V.
IV. CONCLUSION
In sum, the court concludes that Dennis is entitled to
qualified immunity on the excessive-force claim and municipal
immunity on the assault, battery, and negligent use of force
claims. The Estate concedes summary judgment on the failure to
train and supervise claim. Accordingly, defendants’ motion for
summary judgment (doc. no. 24) is granted. The Clerk of Court
shall enter judgment accordingly and close the case.
SO ORDERED.
__________________________ Andrea K. Johnstone United States Magistrate Judge
January 29, 2018
cc: George T. Campbell, III, Esq. Brian J.S. Cullen, Esq.