UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gregory Lambert, as Administrator of the Estate of Harrison Lambert
v. Case No. 17-cv-404-AJ Opinion No. 2019 DNH 053 Town of Merrimack, et al.
MEMORANDUM ORDER
On September 3, 2015, two Merrimack police officers shot
and killed Harrison Lambert while responding to a domestic
disturbance at his home. Lambert's father, Gregory Lambert,
brings this action as administrator of his son's estate,
alleging that the officers violated Lambert's Fourth Amendment
right to be free from excessive force and that the Town of
Merrimack violated the Americans with Disabilities Act (ADA) and
Section 504 of the Rehabilitation Act by failing to accommodate
Lambert's known mental disability. The Estate also brings
several state-law claims against all three defendants. The case
was assigned to the undersigned magistrate judge, to whose
jurisdiction the parties consented. See doc. no. 2; see also 28
U.S.C. § 636(c).
The defendants move for summary judgment on all counts,
alternatively arguing that they did not violate Lambert's rights
and that, even if they did, they are immune from suit. See doc.
no. 12. While the Estate concedes summary judgment on the state-law claims, it contends that factual disputes in the
record require that the federal claims be put to a jury. See
doc. no. 19. The court heard oral argument in October 2018.
The court grants the defendants' motion as to the Fourth
Amendment claim. Even assuming the officers' conduct
constituted excessive force, the Estate has not demonstrated
that the unlawfulness of that conduct was clearly established at
the time of the shooting. The officers are therefore entitled
to qualified immunity, and the court dismisses them from this
action.
Based on recent controlling authority, however, the court
concludes that summary judgment is not appropriate on the ADA
and Section 504 claim, at least on the state of the present
briefing. The court accordingly denies the defendants' motion
without prejudice as to that claim, but grants the Town 45 days
to file a renewed motion, as may be appropriate, taking into
account these recent legal developments.
I. LEGAL STANDARD
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,
2 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, 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)).
II. BACKGROUND
On September 3, 2015, at around 12:15 p.m., Master
Patrolman Richard McKenzie of the Merrimack Police Department
was at the police station working on reports when he received a
radio from dispatch regarding a domestic incident at 8 Joppa
Road in Merrimack. Doc. no. 12-17 ¶ 4. Dispatch indicated that
the incident involved a man with a knife. Id. ¶ 3; doc. no. 12-
2 ¶ 6. McKenzie left the police station, entered a fully marked
police SUV, and radioed that he would respond to the scene.
Doc. no. 12-17 ¶ 4.
Lieutenant Matthew Tarleton and Master Patrolman William
Gudzinowicz also heard the dispatch. Doc. no. 12-2 ¶¶ 5, 6;
doc. no. 12-10 ¶ 5. Scheduled to co-teach a training session at
3 1:00 p.m., Tarleton and Gudzinowicz had just entered a fully
marked police cruiser in the police station parking lot when the
dispatch came through. Doc. no. 12-2 ¶¶ 5, 6; doc. no. 12-
10 ¶ 5. Tarleton, who was in the driver's seat, saw McKenzie
enter the SUV and leave for the scene. Doc. no. 12-2 ¶ 7. With
Gudzinowicz in the passenger's seat, Tarleton pulled the cruiser
behind the SUV and followed McKenzie to 8 Joppa Road. Id. ¶ 7;
doc. no. 12-10 ¶ 5.
McKenzie was on patrol duty when he received the call and
was wearing a full patrol uniform and a duty belt, on which he
carried a .40 caliber pistol, a radio, two magazines, and a
Taser. Doc. no. 12-17 ¶ 2. Tarleton and Gudzinowicz wore
training uniforms consisting of navy-blue collared shirts
displaying the Merrimack Police Department badge insignia and
their last names, with the department badge on the shoulders.
Doc. no. 12-2 ¶ 3; doc. no. 12-10 ¶ 3. Gudzinowicz also wore a
Merrimack Police Department baseball cap. Doc. no. 12-10 ¶ 3.
Because they were dressed for training and not patrol duty,
Tarleton and Gudzinowicz only carried .40 caliber pistols on
their service belts, and not Tasers or other tactical gear.
Doc. no. 12-2 ¶ 4; doc. no. 12-10 ¶ 4.
The officers reached the scene in a matter of minutes.
Doc. no. 12-17 ¶ 5; see also doc. no. 12-2 ¶ 8. McKenzie parked
the SUV on the right side of the street with 8 Joppa Road ahead
4 of him on the right. See doc. no. 12-6 at 3; doc. no. 12-13 at
3; doc. no. 12-21 at 3. Tarleton parked the cruiser behind
McKenzie's SUV. Doc. no. 12-2 ¶ 9; doc. no. 12-10 ¶ 6; doc. no.
12-17 ¶ 5. McKenzie exited his vehicle first and identified
Harrison Lambert standing about 15 yards from him. 1 Doc. no.
12-17 ¶ 6. Initially unable to see a knife, McKenzie shouted at
Lambert to show his hands. Id. ¶ 7. Lambert did not obey and
shouted expletives at the officers. Id.; doc. no. 12-2 ¶ 11.
Due to Lambert's behavior, and because dispatch had
reported an incident involving a knife, McKenzie unholstered his
service weapon. Doc. no. 12-17 ¶ 7. At around this time,
Tarleton exited the cruiser and saw Lambert standing at the end
of the driveway to 8 Joppa Road, approximately 30 yards from
him. Doc. no. 12-2 ¶ 10. Lambert started walking diagonally
away from the officers. Doc. no. 12-2 ¶ 11. He then turned
back, at which point McKenzie observed a knife in his hand.
Doc. no. 12-17 ¶ 8. McKenzie shouted at Lambert to "drop the
knife!" Id. ¶ 9. When McKenzie shouted, Tarleton also noticed
the knife. Doc. no. 12-2 ¶ 12. Tarleton, too, started yelling
at Lambert to stop and drop the knife. Id. ¶ 12.
1 All three officers had prior police-related contact with Lambert and were familiar with his appearance. Doc. no. 12-2 at 2 n. 1; doc. no. 12-10 at 2 n. 1.; doc. no. 12-17 at 2 n. 1.
5 Gudzinowicz was exiting the cruiser when he heard McKenzie
order Lambert to drop the knife. Doc. no. 12-10 ¶ 7.
Gudzinowicz walked in front of the cruiser and observed Lambert
standing at the end of the driveway with a knife in his right
hand. Id. ¶¶ 7, 8. Gudzinowicz also shouted at Lambert to drop
the knife. Id. ¶ 8. When Lambert did not comply, Tarleton and
Gudzinowicz unholstered their service weapons. Id. ¶¶ 8, 9;
doc. no. 12-2 ¶ 12. At that time, Gudzinowicz was in the middle
of the three officers, with Tarleton to his immediate left and
McKenzie ahead and to his right. Doc. no. 12-10 ¶ 8; doc. no.
12-17 ¶ 10. Lambert was approximately 30 yards from Tarleton
and 15 to 20 yards from Gudzinowicz. Doc. no. 12-2 ¶ 13; doc.
no. 12-10 ¶ 8.
After briefly pacing back and forth, Lambert turned and
started running at the officers in a zig-zagging fashion. Doc.
no. 12-2 ¶ 14; doc. no. 12-10 ¶¶ 9, 10; doc. no. 12-17 ¶ 11. As
he ran, Lambert held the knife at his side with the blade
pointing forward. Doc. no. 12-2 ¶ 14; doc. no. 12-10 ¶ 10. The
officers commanded Lambert to stop and drop the knife. Doc. no.
12-2 ¶ 14; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. Lambert
turned suddenly and ran directly at Tarleton. Doc. no. 12-2
¶ 15; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. The officers
continued to shout at Lambert to stop and drop the knife. Doc.
no. 12-2 ¶ 17; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. When
6 Lambert did not obey, Tarleton and Gudzinowicz opened fire.
Doc. no. 12-2 ¶ 19; doc. no. 12-10 ¶ 14; doc. no. 12-17 ¶ 13.
Tarleton fired three shots and Gudzinowicz fired five. Doc. no.
12-2 ¶ 19; doc. no. 12-10 ¶ 15. McKenzie did not fire at
Lambert out of concerns for collateral damage. Doc. no. 12-17
¶ 13. McKenzie recalls hearing Tarleton and Gudzinowicz fire
the shots in quick succession. Id. ¶ 13. A recording of a 911
call with Lambert's father, in which the shots can be heard in
the background, supports McKenzie's recollection. See doc. no.
12-28 at 4:35 (conventionally filed).
There is inconsistent evidence in the record as to how far
Lambert was from the officers when they opened fire.
Gudzinowicz says he pulled the trigger when Lambert was 12 to 15
feet from him and Tarleton. Doc. no. 12-2 ¶ 14. McKenzie
similarly states that Lambert was about 15 feet from Gudzinowicz
and Tarleton when he heard them open fire. Doc. no. 12-17 ¶ 13.
In contrast, Tarleton stated in his interview with New Hampshire
State Police on the day of the incident that he fired his weapon
when Lambert was 10 to 15 yards away. See doc. no. 12-6 at 8,
36. But in an affidavit filed in support of the defendants'
motion, Tarleton contends that this was a misstatement and that
Lambert was in fact 10 to 15 feet away when he discharged his
weapon. Doc. no. 12-2 ¶¶ 19, 19 n. 2.
7 Less than 30 seconds elapsed between the time the officers
exited their vehicles and the time the shots were fired. Doc.
no. 12-10 ¶ 15; doc. no. 12-17 ¶ 14. 2 Lambert was struck by five
bullets. Doc. no. 12-5 at 15. He ultimately died from his
injuries. Id.
III. DISCUSSION
The Estate's complaint consists of five claims, two federal
and three state. In a claim brought under 42 U.S.C. § 1983, the
Estate alleges that Tarleton and Gudzinowicz subjected Lambert
to excessive force in violation of the Fourth Amendment. The
Estate also alleges that the Town violated the ADA and Section
504 by failing to accommodate Lambert's known mental disability. 3
And against all three defendants, the Estate alleges state-law
claims of assault, battery, and wrongful death.
2 The Estate contends that this fact is disputed because an eyewitness, Laura Ploss, stated in an interview with the New Hampshire State Police that the two officers discharged their weapons six or seven seconds after they exited their cruisers. See doc. no. 19 at 2. The court addresses this contention below. See infra pp. 15-16.
3 The Estate refers to this claim as its "ADA" claim, despite being brought under both the ADA and Section 504. See doc. no. 19 at 16 n.4. The court does likewise in this order. See Parker v. Universidad de P.R., 225 F.3d 1, 4 n.2 (1st Cir. 2000) (noting that Title II of the ADA "essentially extends the reach of [Section] 504 to state and local governmental entities that do not receive federal financial assistance").
8 The defendants move for summary judgment on all claims. At
the hearing, the Estate conceded summary judgment on the state-
law claims. The court accordingly grants the defendants' motion
as to those claims. The Estate opposes summary judgment on the
federal claims. The court addresses those claims in order
A. Excessive force
The defendants contend that summary judgment is appropriate
on the excessive-force claim both because the officers' use of
force was justified under the circumstances and because the
officers are entitled to qualified immunity. The court need not
address the defendants' first argument because even assuming the
officers' use of force was excessive, qualified immunity shields
both officers from liability. The court limits its analysis
accordingly.
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, 138 S. Ct. 577, 589 (2018) (citation omitted). "Although
this description implies a set sequence, these prongs need not
be taken in order." Conlogue v. Hamilton, 906 F.3d 150, 155
(1st Cir. 2018) (internal quotation and citation omitted). "A
court is well within its authority to alter the choreography in
the interests of efficiency[,] beginning — and perhaps ending —
9 with the second prong." Id. (same omissions). In this case,
the second prong is dispositive.
"Clearly established means that, at the time of the
officer's conduct, the law was sufficiently clear that every
reasonable official would understand that what he is doing is
unlawful." Wesby, 138 S. Ct. at 589 (citations and internal
quotation marks omitted). 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).
Where, as here, the movant raises a qualified immunity
defense, the nonmoving party has the burden of demonstrating
that the law was clearly established during the relevant time
period. See Mitchell v. Miller, 790 F.3d 73, 77 (1st. Cir.
2015). The First Circuit has held that this inquiry has two
facets. Conlogue, 906 F.3d at 155. "First, the plaintiff must
identify either controlling authority or a consensus of
persuasive authority sufficient to put an officer on notice that
his conduct fell short of the constitutional norm." Id.
(citation omitted). A plaintiff must also "show that an
objectively reasonable officer would have known that his conduct
violated the law." Id. (citation omitted). "Because many law
10 enforcement encounters arise from confusing, high-stakes
circumstances, this second inquiry provides some breathing room
for a police officer even if he has made a mistake (albeit a
reasonable one) about the lawfulness of his conduct." Id.
(citation omitted). In other words, "[t]he precedent must be
clear enough that every reasonable official would interpret it
to establish the particular rule the plaintiff seeks to apply."
Wesby, 138 S. Ct. at 590 (citation omitted).
"Taken together, these steps normally require that, to
defeat a police officer's qualified immunity defense, a
plaintiff must identify a case where an officer acting under
similar circumstances was held to have violated the Fourth
Amendment." Gray v. Cummings, 917 F.3d 1, 10 (1st Cir. 2019)
(internal quotation marks omitted) (quoting City of Escondido v.
Emmons, 139 S. Ct. 500, 504 (2019)). "Although such a case need
not arise on identical facts, it must be sufficiently analogous
to make pellucid to an objectively reasonable officer the
unlawfulness of his actions." Id. (citations omitted). The
Supreme Court has stressed that courts "must not define clearly
established rights at a high level of generality, since doing so
avoids the crucial question whether the official acted
reasonably in the particular circumstances that he or she
faced." Wesby, 138 S. Ct. at 590 (citations and internal
quotation marks omitted). While "there can be the rare 'obvious
11 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, internal quotations, and brackets omitted).
Construed generously, the Estate's objection contains
citations to six decisions bearing on the clearly established
prong of qualified immunity. None would have put Tarleton or
Gudzinowicz on notice that his conduct violated the Fourth
Amendment. Three of the decisions do not involve excessive
force at all, and therefore have little relevance to the
specific facts in this case. 4 Another, a landmark decision in
which the Supreme Court concluded that excessive-force claims
against law enforcement are properly analyzed under the Fourth
Amendment's "objective reasonableness" standard, is readily
distinguishable from this case on its facts. See Graham v.
4 These cases are Albright v. Oliver, 510 U.S. 266, 268 (1994), which addressed whether a substantive right exists under the Fourteenth Amendment's Due Process Clause to be free from criminal prosecution except upon probable cause, Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009), which assessed whether the seizure and destruction of pets owned by residents of three public housing complexes violated those residents' Fourth and Fourteenth Amendment rights, and Vazquez-Valentin v. Santiago-Diaz, 459 F.3d 144, 146 (1st Cir. 2006), which considered, on remand from the Supreme Court, whether the district court erred in excluding certain evidence at trial in a case involving alleged political discrimination by the plaintiff's employers.
12 Connor, 490 U.S. 386, 389 (1989). So, too, is the Supreme
Court's decision in Brower v. County of Inyo, which considered
whether police officers unreasonably seized a fleeing suspect
who died when he collided with a roadblock erected to stop his
flight. See 489 U.S. 593, 594-95 (1989).
The sixth case, Kisela v. Hughes, 138 S. Ct. 1148 (2018)
(per curiam), warrants a bit more discussion. In that case,
several police officers responded to a 911 report of a woman
hacking a tree with a kitchen knife. Id. at 1151. A few
minutes after the officers arrived at the scene, a woman
matching the description of the woman seen hacking the tree
emerged from a house carrying a large knife. Id. That woman
approached another woman standing near a car in the driveway,
stopping no more than six feet from her. Id. The officers drew
their guns and at least twice told the woman carrying the knife
to drop the weapon. Id. The woman standing near the car told
the officers and the woman carrying the knife to "take it easy."
Id. The woman carrying the knife appeared calm, but did not
acknowledge the officers or comply with their commands to drop
the knife. Id. At that point one of the officers shot the
woman holding the knife four times. Id. The woman survived and
filed suit against the officer who shot her, alleging excessive
force. Id. In a per curiam opinion, the Supreme Court declined
to reach the constitutionality of the officer's conduct, holding
13 instead that he was entitled to qualified immunity because it
was not clearly established that his conduct violated the Fourth
Amendment. See id. at 1152-55.
Short of supporting the Estate's contention that the
officers violated Lambert's clearly established right in this
case, Kisela stands as an indictment of that argument. Whereas
the plaintiff in Kisela was described as calm, there is no
dispute in the present record that Lambert shouted expletives at
the officers when the ordered him to drop the knife. And unlike
in Kisela, where the plaintiff was merely standing near a third
party when she was shot, the Estate does not dispute that in
this case Lambert was running at the officers when they opened
fire. The Estate's attempts to distinguish Kisela based on the
size of the knife and Lambert's proximity to the officers when
they shot him are unavailing, as the Estate points to no
caselaw, controlling or otherwise, suggesting that those
differences are material to the court's analysis. Absent a case
on point, the court fails to see how either distinction renders
conduct that was not clearly unconstitutional in Kisela clearly
unconstitutional in this case.
In addition to the above cases, the Estate also raises
several factual arguments as to why Tarleton and Gudzinowicz are
not entitled to qualified immunity. While those arguments
largely go to the first prong of the qualified-immunity analysis
14 (and are therefore immaterial to the outcome of this case), the
court nonetheless addresses several of them here.
First, the Estate contends that the amount of time that
passed from when the officers exited their vehicles to when they
opened fire is disputed. To this end, the Estate asserts that
Laura Ploss, a third-party eyewitness, stated during her
interview with the New Hampshire State Police that Tarleton and
Gudzinowicz discharged their weapons within six or seven seconds
of exiting the cruiser, in contrast to the "less than 30
seconds" the officers estimated in their affidavits. But that
is not exactly what Laura Ploss said: she stated that she saw
the officers "get out of their car and put their hand on their
weapon[s] right away . . . and then they drew their weapons
right away and like six or seven seconds later we heard 'bang,
bang, bang, bang, bang.'" Laura Ploss Interview at 2:44-2:59
(filed conventionally). In other words, Ploss stated that the
officers opened fire six or seven seconds after they drew their
weapons. It is therefore not clear that Ploss's statement is
inconsistent with the officers' estimates in their affidavits.
Yet, even if it were, the court fails to see how this
inconsistency is material. Regardless of the exact time the
officers opened fire, the Estate does not meaningfully dispute
that Lambert was running at the officers with a knife when they
15 did so. It is by no means "beyond debate" that using deadly
force under such circumstances violates the Fourth Amendment.
The Estate also relies heavily on the dispute in the record
as to how far Lambert was from the officers when they discharged
their weapons. This argument is likewise misplaced. The Estate
has not cited, and the court is unaware of, any caselaw
suggesting that it necessarily violates the Fourth Amendment for
an officer to shoot at a person running at that officer or one
of his colleagues with a knife when that person is 10 to 15
yards away, as opposed to 10 to 15 feet. Thus, while this
discrepancy might arguably have some bearing on whether the
officers' use of force was objectively reasonable, it does not
make their conduct in this case clearly unlawful under the
second prong of qualified immunity.
The Estate next argues that it was clearly excessive for
the officers to continue firing at Lambert after he was
initially shot. This argument, too, is unavailing. The record
evidence, including a 911 audio recording in which the shooting
can be heard in the background, supports the conclusion that the
officers fired shots at Lambert in quick succession. The Estate
acknowledged at the hearing that it was unable to identify any
case in which a court held that an officer violated the Fourth
Amendment by firing multiple shots in quick succession at an
individual running at that officer or his colleague with a
16 knife. 5 The Estate has therefore failed to meet its burden of
demonstrating that the manner in which the officers discharged
their weapons in this case violated clearly established law.
In its objection, the Estate contends that there is a
factual dispute whether the officers ever gave Lambert a verbal
warning before shooting him. At the hearing, the Estate revised
this argument, conceding for the purposes of summary judgment
that the officers did verbally warn Lambert, but challenging
whether that warning was adequate. While the First Circuit has
held that an officer ordinarily must give a suspect some sort of
warning before using deadly force against him, see McKenney v.
Mangino, 873 F.3d 75, 82 (1st Cir. 2017) (citing Tennessee v.
Garner, 471 U.S. 1, 11-12 (1985)), the key inquiry is whether
the warning was "adequate in light of the circumstances then
obtaining." Conlogue, 906 F.3d at 156 (citing Young v. City of
Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir. 2005)).
There is no dispute in the record here that Tarleton and
Gudzinowicz repeatedly commanded Lambert to stop and drop the
knife before they opened fire. The Estate points to no
5 Given that the Supreme Court has cautioned courts analyzing excessive-force claims to be mindful 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," Graham, 490 U.S. at 397, the court is skeptical that any such case exists.
17 authority suggesting that, despite these commands, the officers
failed to adequately warn Lambert before they shot him. This
argument is therefore also insufficient to meet the Estate's
burden under the second qualified-immunity prong.
The Estate also spends considerable time focusing on
Lambert's mental disability. And not without reason, as "the
level of force that is constitutionally permissible in dealing
with a mentally ill person differs both in degree and in kind
from the kind of force that would be justified against a person
who has committed a crime or who poses a threat to the
community." Gray, 917 F.3d at 11 (citation and internal
quotation marks omitted). But once again, this is an argument
that goes to whether the officers' conduct was objectively
reasonable, not whether that conduct violated a clearly
established right. The Estate cites no authority, binding or
persuasive, supporting the proposition that it is clearly
unlawful for a police officer to shoot an individual running at
him or another officer with a knife simply because that
individual happens to be mentally disabled. Absent such
authority, the Estate cannot overcome the clearly established
prong by generally invoking Lambert's mental disability.
Finally, the Estate asks the court to draw an inference
that Tarleton, Gudzinowicz, and McKenzie coordinated their
stories. The court declines to do so. To defeat summary
18 judgment, a nonmovant must, "with respect to each issue on which
he would he would bear the burden of proof at trial, demonstrate
that a trier of fact could reasonably resolve that issue in his
favor." Flovac, Inc. v. Airvac, Inv., 817 F.3d 849, 853 (1st
Cir. 2016) (citation omitted). "This demonstration must be
accomplished by reference to materials of evidentiary quality,
and that evidence must be more than 'merely colorable.'" Id.
(citations omitted). The court will not credit "conclusory
allegations, improbable inferences, or unsupported speculation."
See Fanning v. Fed. Trade Comm'n, 821 F.3d 164, 170 (1st Cir.
2016) (citation and quotation marks omitted) cert. denied, 137
S. Ct. 627 (2017). Here, the Estate points to no evidence that
would transform its suggestion that the officers coordinated
their stories from unsupported speculation to a reasonable
inference the court must draw in the Estate's favor. The
Estate's suggestion is therefore not one the court may accept at
the summary-judgment stage.
To its credit, the Estate acknowledged at the hearing that
it had not identified any case in which conduct similar the
conduct at issue here was found to violate the Fourth Amendment.
But the Estate contended that it did not need to, as this was an
"obvious case" where the unlawfulness of Tarleton and
Gudzinowicz's actions was clear. The court does not agree.
Without belaboring the point, it is by no means obviously
19 unlawful for a police officer to use deadly force against an
individual who is running at that officer or his fellow officer
bearing a knife. The Estate's counterarguments do not alter
this conclusion; if anything, they demonstrate that determining
whether the officers violated Lambert's rights in this case is
necessarily a fact-intensive inquiry.
In sum, the Estate has not demonstrated that either
Tarleton or Gudzinowicz violated Lambert's clearly established
rights. The officers are therefore entitled to qualified
immunity on the excessive-force claim. The court grants the
defendants' motion for summary judgment as to that claim and
dismisses the officers from this action.
B. ADA
This leaves only the Estate's ADA claim against the Town.
The Town contends that it is entitled to summary judgment on
that claim both because the ADA does not apply to police
investigations and arrests and because, even if it did, exigent
circumstances justified the officers' conduct in this case. At
the time the defendants filed their motion, the First Circuit
had not addressed whether the ADA protections applied to police
conduct during investigations and arrests. The defendants
accordingly relied on persuasive authority, including decisions
from other Courts of Appeals, to support their arguments. For
its part, the Estate relied primarily on Justice Ginsburg's
20 concurring opinion in Tennessee v. Lane, 541 U.S. 509, 536
(2004), in arguing that the ADA extended to Tarleton and
Gudzinowicz's actions.
Just last month, however, the First Circuit considered for
the first time the interplay between the ADA and "ad hoc police
encounters with members of the public during investigations and
arrests." See Gray, 917 F.3d at 16. In its opinion, the court
discussed the differing approaches other courts have employed
when determining whether the ADA applied to police conduct. See
id. at 16-17. Emphasizing that "courts should not rush to
decide unsettled legal issues that can easily be avoided," the
panel assumed without finding that the ADA applies to ad hoc
police encounters, that a public entity can be held vicariously
liable under the ADA for its employee's actions, and that proof
of a defendant's deliberate indifference is sufficient to
support a claim for damages under the ADA. See id. at 16-18.
The court nevertheless concluded, in a fact-bound analysis, that
the defendants were entitled to summary judgment because the
plaintiff had not made out "a genuine issue of material fact as
to [the officer's] deliberate indifference to the risk of an ADA
violation." Id. at 18. In reaching this conclusion, the First
Circuit declined to adopt, at least at present, much of the
caselaw the defendants rely on in support of their motion. See
id. at 15-17.
21 In the wake of Gray, the court cannot determine whether the
Town is entitled to summary judgment on the ADA claim based on
the current state of the briefing. Before taking a position on
unsettled legal issues the First Circuit expressly declined to
resolve as recently as last month, the court must be convinced
that it has no choice but to do so. Yet without the benefit of
the First Circuit's decision in Gray, neither party has
addressed whether this case can be resolved on its facts. The
court accordingly denies the defendants' motion without
prejudice as to the ADA claim. The Town is granted 45 days to
file a renewed motion for summary judgment, as may be
appropriate, addressing the First Circuit's decision in Gray.
If the Town does so, the Estate shall have 30 days to respond,
as provided by Local Rule 7.1(b).
IV. CONCLUSION
For the reasons stated above, the court grants the
defendants' motion for summary judgment on the excessive-force
claim against Tarleton and Gudzinowicz and on the state-law
claims against all three defendants. Tarleton and Gudzinowicz
are dismissed as defendants. The court denies the defendants'
motion without prejudice as to the ADA claim against the Town.
The Town is granted 45 days to file a renewed motion for summary
judgment on that claim, as may be appropriate, taking into
22 consideration the First Circuit's decision in Gray. Should the
Town file a renewed motion, the Estate shall have 30 days to
respond, as permitted by Local Rule 7.1(b). The August 6, 2018
Endorsed Order staying discovery and trial shall remain in
effect pending further order of the court.
SO ORDERED.
__________________________ Andrea K. Johnstone United States Magistrate Judge
March 25, 2019
cc: Lawrence A. Vogelman, Esq. Charles P. Bauer, Esq. Weston Robert Sager, Esq.