Fortunati v. State of Vermont

• Court: Court of Appeals for the Second Circuit
• Decided: November 26, 2012
• Docket: 11-1732-cv
• Status: Unpublished

Opinion

11-1732-cv Fortunati, et al. v. State of Vermont, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 26th day of November, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 ROSEMARY S. POOLER, 9 PETER W. HALL, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 ROBERT A. FORTUNATI, administrator of 14 the estate of JOSEPH FORTUNATI; SUSAN 15 FORTUNATI; and MARK FORTUNATI, 16 17 Plaintiffs-Appellants, 18 19 -v.- 11-1732-cv 20 21 STATE OF VERMONT, 22 23 Defendant, 24 25 ANDREW CAMPAGNE; MARC THOMAS; JEREMY 26 HILL; TODD PROTZMAN; ROB SNETSINGER; 27 KARL GARDNER; HUGH O’DONNELL; MIKE 28 DUDLEY; and WALTER GOODELL, 29 30 Defendants-Appellants. 31 - - - - - - - - - - - - - - - - - - - -X

1 1 FOR APPELLANTS: George Spaneas, Lebanon, New 2 Hampshire. 3 4 FOR APPELLEES: David Cassetty, (David R. Groff, 5 on the brief), for William H. 6 Sorrell, Attorney General of 7 Vermont, Montpelier, Vermont. 8 9 Appeal from a judgment of the United States District 10 Court for the District of Vermont (Murtha, J.). 11 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 13 AND DECREED that the judgment of the district court be 14 AFFIRMED. 15 16 This is an appeal from the district court’s grant of 17 summary judgment and judgment as a matter of law in favor of 18 defendants on qualified immunity grounds. Robert Fortunati 19 brought suit against members of the Vermont State Police 20 (“VSP”) in his capacity as administrator of his son Joseph 21 Fortunati’s estate under 42 U.S.C. § 1983 alleging that 22 defendants violated Joseph’s Fourth Amendment right to be 23 free from excessive force when they fatally shot Joseph 24 while attempting to take him into custody. Further, Robert, 25 his wife Susan, and their other son Mark brought a claim 26 against members of the VSP under 42 U.S.C. § 1983 for false 27 arrest arising out of an incident that occurred when they 28 went to the scene of Joseph’s death. We assume the parties’ 29 familiarity with the underlying facts, the procedural 30 history, and the issues presented for review. 31 32 The district court granted summary judgment in favor of 33 Defendants with respect to all claims arising out of the 34 fatal shooting death of Joseph on the ground of qualified 35 immunity. The Court reviews de novo a decision on a motion 36 for summary judgment. Mario v. P & C Food Markets, Inc., 37 313 F.3d 758, 763 (2d Cir. 2002). “Qualified immunity 38 protects officials from liability for civil damages as long 39 as ‘their conduct does not violate clearly established 40 statutory or constitutional rights of which a reasonable 41 person would have known.’” Gilles v. Repicky, 511 F.3d 239, 42 243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 43 800, 818 (1982)). To determine whether a defendant is 44 entitled to qualified immunity, courts ask: whether the

2 1 facts shown “make out a violation of a constitutional 2 right,” and “whether the right at issue was ‘clearly 3 established’ at the time of defendant’s alleged misconduct.” 4 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting 5 Saucier v. Katz, 533 U.S. 194, 201 (2001)). Qualified 6 immunity applies to shield official actions that were 7 “‘objectively legally reasonable in light of the legal rules 8 that were clearly established at the time [they were] 9 taken.’” X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d 10 Cir. 1999) (alterations omitted) (quoting Anderson v. 11 Creighton, 483 U.S. 635, 639 (1987)); see also Taravella v. 12 Town of Wolcott, 599 F.3d 129, 134-35 (2d Cir. 2010). 13 14 1. Plaintiffs contend that there was a genuine dispute 15 as to whether Joseph pulled his gun on the members of the 16 VSP’s Tactical Services Unit (“TSU”) immediately before they 17 opened fire on him. The use of deadly force can be 18 reasonable under the Fourth Amendment “if the suspect 19 threatens the officer with a weapon.” Tennessee v. Garner, 20 471 U.S. 1, 11 (1985). None of the small differences in 21 testimony Plaintiffs cite creates a genuine dispute as to 22 whether Joseph aggressively drew or reached for his gun 23 immediately prior to being fired upon by the TSU team 24 members. Some officers were able only to see Joseph reach 25 for his waist, but small differences in testimony simply do 26 not rise to the level at which a reasonable jury could find 27 the officers’ credibility damaged. The district court was 28 therefore correct to conclude that there was no genuine 29 dispute of material fact as to the credibility of the 30 officers. 31 32 2. Before the fatal shooting, officers Hill and 33 Snetsinger shot beanbag rounds at Joseph. Assuming that a 34 reasonable jury could find that Hill and Snetsinger violated 35 Joseph’s Fourth Amendment right to be free from an unlawful 36 seizure, we conclude that the officers’ actions were 37 “objectively legally reasonable,” X-Men Sec., 196 F.3d at 66 38 (alterations omitted) (quoting Anderson, 483 U.S. at 639), 39 because “‘officers of reasonable competence could disagree 40 on the legality of the action at issue,’” Manganiello v. 41 City of New York, 612 F.3d 149, 165 (2d Cir. 2010) (quoting 42 Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)). 43 Plaintiffs argue that internal VSP policy and the 44 International Association of Chiefs of Police Training Key

3 1 No. 274 (the “Training Key”) precluded the use of force in 2 this situation. The Training Key does not proscribe the use 3 of force against people with mental illness. The VSP use- 4 of-force policy authorizes the use of deadly force when the 5 “subject possesses a weapon, or is attempting to gain access 6 to a weapon under circumstances indicating an intention to 7 use it against the member [who used force] or others.” 8 (Joint Appendix 699.) The Troopers understood Joseph to 9 either be armed or in close proximity to the gun he had 10 brandished hours earlier. The intervening nine hours did 11 not diminish the danger Joseph posed to police and the 12 surrounding community. Thus, the use of non-deadly force by 13 the Troopers who deployed the bean bag ammunition against 14 Joseph meets the objective reasonableness test. 15 16 3. Plaintiffs also challenged the grant of qualified 17 immunity to Defendants Protzman and Goodell, who deployed 18 the TSU team. We conclude that the district court was 19 correct; there was no “clearly established” right in this 20 Circuit to be free from the deployment of a police SWAT 21 team. Appellees argue that the decision to deploy a police 22 SWAT team can itself never amount to a Fourth Amendment 23 violation. We need not decide that question, which this 24 Circuit has not addressed. See Estate of Smith v. Marasco, 25 430 F.3d 140, 149-50 (3d Cir. 2005) (“[A] decision to employ 26 a SWAT-type team can constitute excessive force if it is not 27 objectively reasonable to do so in light of the totality of 28 the circumstances.” (internal quotation marks omitted)); 29 Overdorff ex rel. Holland v Harrington, 268 F.3d 1179, 1190 30 (10th Cir. 2001) (“[T]he decision to deploy a SWAT team to 31 execute a warrant must be ‘reasonable.’”). But see Salim v. 32 Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“Officer Proulx’s 33 actions leading up to the shooting are irrelevant to the 34 objective reasonableness of his conduct at the moment he 35 decided to employ deadly force.”); Carter v. Buscher, 973 36 F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is 37 not subject to Fourth Amendment scrutiny.”). 38 39 4. Qualified immunity was also granted with respect to 40 Mark and Susan’s false arrest claim. We assume that Mark 41 and Susan’s detention, which lasted forty-five minutes and 42 involved handcuffs, ripened into an arrest. However, it was 43 “objectively reasonable” for Defendants to believe the 44 detention was lawful. This Court has in the past held that

4 1 officers may use more force than is typically used in a 2 Terry stop without an “arrest” taking place when the 3 officers are confronted with a situation that they know to 4 be dangerous. See United States v. Vargas, 369 F.3d 98, 102 5 (2d Cir. 2004); United States v. Alexander, 907 F.2d 269, 6 272-73 (2d Cir. 1990). The encounter was tense; it took 7 place at a crime scene; and the officers had reason to 8 believe that Robert might be armed. The officers were 9 undoubtedly aware that the Fortunati family would be upset 10 over Joseph’s death, and they could also reasonably protect 11 against disruption of the scene of the shooting and 12 interference with their investigative duties. It was 13 therefore objectively reasonable for Defendants to believe 14 that Susan and Mark’s detention did not rise to the level of 15 an arrest, notwithstanding that they may have been detained 16 for a period of up to forty-five minutes after Robert had 17 been taken into custody. 18 19 5. Although Plaintiffs mention their state law claims 20 in their brief, they have not adequately briefed any state 21 law issue. Plaintiffs have therefore waived any arguments 22 with respect to their state law claimes. See Zhang v. 23 Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005). 24 25 While we are fully cognizant of the tragic 26 circumstances giving rise to this case, we find no error in 27 the district court’s rulings on the issues before us. For 28 the foregoing reasons, we hereby AFFIRM the judgment of the 29 district court. 30 31 32 FOR THE COURT: 33 CATHERINE O’HAGAN WOLFE, CLERK 34