Roy v. Inhabitants

• Court: Court of Appeals for the First Circuit
• Decided: December 21, 1994
• Docket: 94-1260
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1260

                                   MICHAEL G. ROY,

                                Plaintiff, Appellant,

                                          v.

                     INHABITANTS OF THE CITY OF LEWISTON, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                              Torruella, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________

                                 ____________________

            Walter Hanstein, III with whom William  Maselli and Joyce,  Dumas,
            ____________________           ________________     _____________
        David & Hanstein, P.A. were on brief for appellant.
        ______________________
            Edward  R.  Benjamin, Jr.  with whom  Daniel  Rapaport and  Preti,
            _________________________             ________________      _____
        Flaherty, Beliveau & Pachios were on brief for appellees.
        ____________________________

____________________

                                  December 21, 1994
                                 ____________________



BOUDIN, Circuit Judge.  On August  13, 1991, around 9:00
                         _____________

            p.m.,  officers  Michael Whalen  and  Richard  Mercer of  the

            Lewiston  Police  Department  were  sent  to  investigate   a

            domestic  violence report  at the home  of Michael  and Edith

            Roy.   On arriving, Edith  Roy told the  police officers that

            Michael  Roy  ("Roy")  was  armed  with  two  knives and  had

            threatened to  use them against any  policeman who approached

            him.   The policemen  then went  outside to  the back of  the

            residence and found Roy lying on the ground.

                 Roy was  roused--he had been  drinking--and the officers

            then  learned that a third officer, Randy Hausman, was on his

            way  to the  Roys'  home to  serve a  summons on  Michael Roy

            because of a complaint  by another woman that Roy  had struck

            her earlier that day.  When  Hausman arrived and read Roy his

            Miranda  rights, Roy  refused to  acknowledge the  reading or
            _______

            accept  the summons, so Hausman  pushed it into Roy's pocket.

            The latter then became upset, stated "I'll show you," entered

            his  home,   and  then--following  out  Edith   Roy  who  was

            screaming--returned carrying a steak knife in each hand.

                 In  broad  outline,  what  happened  next  is  that  the

            officers drew their side arms and ordered Roy to put down the

            knives.   He advanced, flailing his arms  while continuing to

            hold  the knives.   The  officers retreated  back to  a sharp

            downward  incline.    After  some maneuvering  in  which  the

            officers  repeated their  warnings  and made  some effort  to

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distract and  disarm Roy,  Roy made a  kicking-lunging motion

            toward  Whalen and Mercer.   Whalen shot  twice, striking Roy

            both  times and  injuring him  badly.   Roy was  arrested and

            hospitalized.  He ultimately  recovered, and then brought the

            present action.

                 The law  suit,  filed  in  state court  and  removed  to

            federal  district court,  asserted claims  against all  three

            officers,  the City of Lewiston,  and the police  chief.  The

            claims, under 42 U.S.C.    1983 and state law, were based  on

            charges that the three  police officers had unreasonably used

            deadly force.  The city and  its police chief were claimed to

            be  liable on the ground that they had not adequately trained

            the   officers  in   non-lethal  alternatives   for  subduing

            dangerous but intoxicated persons.  

                 The  defendants  moved  for  summary judgment  based  on

            affidavits reciting the facts just set forth and their belief

            that  their  conduct  was   reasonable.    In  response,  Roy

            submitted affidavits and deposition materials of his own.  He

            did  not contradict  the events  just described  but asserted

            that he had intended and  was seeking to put the knives  down

            when  he  was shot.   He  also  proffered testimony  from two

            witnesses who had seen the event.  One, a teenager, said that

            he had  not seen the kick  or lunge; but Roy  did not dispute

            that he had made some gesture of this kind.

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The  other  eyewitness had  substantial  experience with

            drunken  prisoners as  a  corrections officer  in the  county

            jail.   He was arguably  qualified to  give an opinion  as to

            whether  unreasonable force  had been used,  and there  is an

            indication that  he harbored doubts about  the police conduct

            in  subduing Roy.    But in  his  deposition this  eyewitness

            ultimately declined to go  further than to say that  he might

            have handled the matter differently.  In  other respects, his

            testimony confirmed  a number of  the details offered  by the

            officers.

                 A  third affiant,  with qualifications  as an  expert on

            police procedure,  said that  the officers could  easily have

            arrested  Roy without  using  firearms.    He said  that  the

            officers  should have  been  equipped with  a noxious  spray,

            colloquially known  as red pepper  mace.  Because  this spray

            was not  made available  to Lewiston  police and because  the

            expert thought that the police chief placed undue emphasis on

            guns, the expert was prepared to say that the training of the

            officers was inadequate.

                 In a  thoughtful opinion rendered on  February 16, 1994,

            the district  court granted the motions  for summary judgment

            in favor of  each defendant;  as to the  officers, the  court

            said  their conduct was  objectively reasonable and protected
                                                            ___

            by qualified immunity.  Roy has now appealed, challenging the

            grant of summary judgment as to  each of the defendants.  For

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reasons to be  explained, we  are mainly  concerned with  the

            section 1983 claim against Whalen; and although we might have

            rested on the district court's  opinion, this case raises one

            important issue of general application.

                 To lay  the groundwork, we invoke  the usual boilerplate

            propositions:   summary  judgment  is proper  if there  is no

            genuine issue of material fact and the law otherwise warrants

            judgment for the moving  party; the court must assume  that a

            jury would  resolve  credibility issues  and draw  reasonable

            inferences  in  favor of  the opposing  party; and  on appeal

            review  of summary  judgment is  de novo.   Fed.  R. Civ.  P.
                                             _______

            56(c);  Rivera  v. Murphy,  979 F.2d  259  (1st Cir.  1992). 
                    ______     ______

            Qualified immunity claims, in  particular, are to be resolved

            before trial, where possible.  Hunter v. Bryant, 502 U.S. 224
                                           ______    ______

            (1991).

                 Section  1983  protects constitutional  rights,  and the

            constitutional standard for measuring Whalen's conduct has  a

            surface clarity.  The  Supreme Court has instructed that  the

            Fourth Amendment's  search and seizure provisions control and

            that the  use  of deadly  force  incident to  arrest  depends

            solely  on whether  the  officer's  conduct was  "objectively

            reasonable."   Graham  v. Connor, 490  U.S. 386,  397 (1989).
                           ______     ______

            Further, the Court has adopted  a qualified immunity test for

            section  1983 actions  that  shields a  "reasonable  officer"

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judged by an objective standard.   Anderson v. Creighton, 483
                                               ________    _________

            U.S. 635, 641 (1987). 

                 If these "reasonableness" tests were designed to  mirror

            the  standards  of  common-law  negligence,  it  is  doubtful

            whether summary  judgment would be appropriate  in this case,

            even though  the underlying facts  are fairly  clear.   After

            all, one might  think that  a hard look  was warranted  where

            three officers had to shoot  and badly injure an  intoxicated

            man who, although armed  with two small knives, was  flailing

            and stumbling  about rather ineffectually.   Further, Roy was

            prepared to offer an  expert to say that the  police conduct,

            quite apart from the lack of mace, was unreasonable.  

                 The most  plausible ground given by the  expert for this

            judgment was that  the officers had been  properly trained to
                                                      ________

            keep a considerable distance--such as 20 feet--from a suspect

            armed with a knife.  In fact, two officers were only a couple

            of feet from  Roy when he  kicked and  lunged; had they  been

            further away, shots might  not have been needed.   The expert

            was prepared to testify  that he had reviewed  a tape of  the

            scene and believed that  the officers had room to  retreat in

            three different directions.  

                 Judgments  about  reasonableness  are  usually  made  by

            juries in arguable cases,  even if there is no  dispute about

            what happened (qualified immunity  is a different matter, see
                                                                      ___

            Hall v. Ochs, 817 F.2d 920, 924 (1st Cir. 1987)).  Of course,
            ____    ____

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the facts  might point so clearly  toward reasonableness that

            no  reasonable jury could decide  for the plaintiff.   But if

            this  case  were treated  exactly  like  a case  of  careless

            driving by a postman, it might well seem to be one suited for

            trial.  Most  drunks with knives are  disarmed without anyone

            shooting  them, and here an expert was prepared to opine that

            the officers had been negligent and to explain why.

                 But the Supreme  Court's standard  of reasonableness  is

            comparatively generous to the police in cases where potential

            danger, emergency conditions  or other exigent  circumstances

            are present.   In Graham v. Connor, 490 U.S.  386 (1989), the
                              ______    ______

            Court said  that the  "calculus of reasonableness"  must make

            "allowance" for  the need of police officers  "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."   Id. at  396-97.  Cf.
                                                     ___              ___

            Daniels  v. Williams, 474  U.S. 327 (1986)  (negligence not a
            _______     ________

            due process violation).  

                 Also pertinent is the  Court's more general statement in

            Anderson v.  Creighton addressed to qualified  immunity for a
            ________     _________

            Fourth Amendment violation.   The Court used  as its standard

            the "reasonable officer" and what "could reasonably have been

            thought  lawful" by such an  officer, 483 U.S.  at 638, terms

            suggesting a  measure of deference.   The  Court then  quoted

            earlier decisions saying that  immunity protects "all but the

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plainly incompetent  or those who knowingly  violate the law"

            or  those  who act  where  "the  law  clearly proscribed  the

            actions" taken.   Id. at 638-39.  See also  Malley v. Briggs,
                              ___             ________  ______    ______

            475 U.S.  335, 343  (1986) (qualified immunity  leaves "ample

            room for mistaken judgments").

                 What  these   precedents  dictate  is  this:     whether

            substantive liability or qualified  immunity is at issue, the

            Supreme Court intends to surround  the police who make  these

            on-the-spot choices  in  dangerous situations  with a  fairly

            wide  zone of protection in close cases.  Decisions from this

            circuit and  other circuits  are consistent with  that view.1

            And  in close  cases, a  jury does  not automatically  get to

            second-guess these life and  death decisions, even though the

            plaintiff  has  an expert  and  a  plausible claim  that  the

            situation could better have been handled differently.

                 In  theory, substantive liability and qualified immunity

            are  two separate questions  and, indeed,  may be  subject to

            somewhat   different  procedural   treatment.     In   police

            misconduct  cases, however,  the Supreme  Court has  used the

            same "objectively reasonable" standard in describing both the

            constitutional  test of  liability, see  Graham, 490  U.S. at
                                                ___  ______

____________________

                 1See, e.g., Gaudreault v. Municipality  of Salem, Mass.,
                  ___  ____  __________    _____________________________
            923  F.2d 203  (1st Cir.  1990), cert.  denied, 500  U.S. 956
                                             _____  ______
            (1991);  Krueger  v. Fuhr,  991  F.2d 435  (8th  Cir.), cert.
                     _______     ____                               _____
            denied,  114 S. Ct. 386  (1993); Reese v.  Anderson, 926 F.2d
            ______                           _____     ________
            494  (5th Cir. 1991); Ryder  v. The City  of Topeka, 814 F.2d
                                  _____     ___________________
            1412 (10th Cir. 1987).

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397,  and the  Court's own  standard for  qualified immunity.

            Anderson, 483  U.S. at 639.  It seems unlikely that this case
            ________

            would  deserve  a different  outcome  even  if the  qualified

            immunity defense had not been raised.

                 As a matter  of legislative policy, one  could argue for

            less latitude for  armed officers,  at least in  the case  of

            fleeing  suspects who are not  an immediate threat.   But the

            Supreme  Court's decisions make  the objective reasonableness

            test  a  minimum  constitutional  standard  for liability;  a
                     _______  ______________

            legislature  cannot  afford  less  protection  for  citizens.
                                         ____

            Tennessee v. Garner,  471 U.S.  1 (1985).   There is  nothing
            _________    ______

            that prevents a legislature from  being tougher on its police

            (e.g.,   by  adopting   stringent   and   specific   firearms
             ____

            regulations),  or being  more  generous  to victims  (through

            compensation), or both.       Against  this   background,  we

            think  that  the  district  court  properly  granted  summary

            judgment  on  the  section  1983 claim  in  favor  of Whalen.

            Perhaps a  jury could rationally have found that Whalen could

            have done a better job; but in our view a jury could not find

            that  his conduct was so deficient that no reasonable officer

            could have  made the same choice  as Whalen--in circumstances

            that were assuredly "tense, uncertain, and rapidly evolving .

            . . ."  Graham,  490 U.S. at 397.  Put  differently, Whalen's
                    ______

            actions, even if mistaken, were not unconstitutional.  

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Roy was armed; he apparently tried to kick and strike at

            the officers; he disobeyed  repeated instructions to put down

            the  weapons; and  the  officers had  other reasons,  already

            described, for  thinking him capable of assault.   Apart from

            the suggestion that mace should  be carried by all policemen,

            Roy's expert nowhere explains in his affidavit how the police

            could have subdued  Roy; and it is not  obvious that it would

            have  been a better solution (as the expert seems to suggest)

            for the police to  retreat, leaving an intoxicated armed  man

            on the premises--one who  had just now committed  an apparent

            felony in the presence of the police.

                 Nor is it at all plain that the police could, or should,

            have kept their distance.  Leaving aside the indications that

            Roy moved toward them, one might easily suppose that the best

            chance the police had  to subdue him without shooting  was to

            get close enough to push him  over or wrest the weapons  from

            him.   The police may have done the wrong thing but they were

            not "plainly  incompetent" nor  were  their actions  "clearly

            proscribed."  Anderson,  483 U.S.  at 638-39.   Cf. Floyd  v.
                          ________                          ___ _____

            Farrell, 765 F.2d  1, 5  (1st Cir. 1985)  (conduct "at  least
            _______

            arguabl[y]" justified).

                 We  have  labored over  this  single  point--the Supreme

            Court's objective reasonableness  standard--without any  hope

            of  articulating a  more  concrete or  precise  gloss of  the

            Court's  language.   What  can  be  said  is  that  the  term

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reasonableness  is  used  in  different   ways  in  different

            contexts; and in  this one--the  use of deadly  force by  the

            police in dangerous situations--the Supreme Court has allowed

            more latitude than might  be customary in a simple  tort case

            involving careless driving.  Terms like "plainly incompetent"

            or  concepts  like  what  "a reasonable  officer  could  have

            believed"  are inherently  general, but  they add  nuance and

            provide a sense of direction.

                 These  phrases do not  automatically lend  themselves to

            effective jury instructions.  On the contrary, this court has

            held  that it  would be  unsuitable to  instruct a  jury that

            excessive  force  must  be "clearly"  established  to justify

            liability; we  reasoned that the term could  confuse the jury

            into thinking  that the  burden of  proof was  something more

            than preponderance of the evidence, as in the  formula "clear

            and convincing evidence" often used to heighten the burden of

            proof in fraud cases.   Tatro v. Kervin, 1994 WL  663805 (1st
                                    _____    ______

            Cir. 1994).  But we are  concerned here not with proof of raw

            facts but whether, on known or assumed facts, police behavior

            can  be deemed  egregious enough  to submit  the matter  to a

            jury.

                 The  remaining  defendants  and  the state  claims  were

            carefully addressed in the  district court's decision, and we

            have little  to add.  The  other officers did  not use deadly

            force  or  encourage Whalen  to  do so.    Compare Gutierrez-
                                                       _______ __________

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Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989).  As for
            _________    _________

            the  police  chief and  the  town,  nothing  in the  expert's

            affidavit would make anyone think that the failure to provide

            mace  was so  unusual  or  patently  improper as  to  reflect

            "deliberate indifference"  under  the demanding  standard  of

            Canton  v. Harris, 489 U.S. 378 (1989).  The Eleventh Circuit
            ______     ______

            so held on  essentially similar facts  in McKinney v.  DeKalb
                                                      ________     ______

            County, Georgia, 997 F.2d 1440 (11th Cir. 1993).
            _______________

                 As for the claims  under Maine law, Roy points  out that

            14  Maine Rev.  Stat. Ann.    8104-A  says that  a government

            entity, with  certain exceptions,  is  liable for  "negligent

            acts" involving  unspecified "machinery or  equipment whether

            mobile  or stationary."   Roy asserts that this language must

            include the  police use  of firearms  and establishes  a bare

            negligence  standard  for  this  case.    This  is perhaps  a

            literally permissible reading of an ambiguous statute but one

            that  strikes the reader as  a trifle unlikely.   Roy's brief

            offers no  precedent for  reading this  statute  to apply  to

            police weaponry.

                 At  the  same  time,   another  Maine  statute  provides

            explicit immunity for official discretionary action, 14 Maine

            Rev.  Stat.  Ann.     8111(1)(c),  and  Maine  case  law  has

            construed this latter statute to apply to claims of excessive

            force.  Leach v. Betters,  599 A.2d 424, 426 (Me.  1991) ("At
                    _____    _______

            best, the  records support  the conclusion that  the officers

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may have used more  force than was necessary but  it contains

            no  suggestion that they used more force than they reasonably

            thought to be necessary.").   Given Leach, we have  no reason
                                                _____

            to think  that Maine  imposes  more stringent  limits on  the

            police  than does  federal law;  indeed, the  reverse may  be

            true.  See  Leach, 599  A.2d at 426  (possible exception  for
                   ___  _____                     ________

            "wanton" conduct).

                 Affirmed. 
                 ________

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