December 22, 1995 United States Court of Appeals For the First Circuit
No. 95-1463
KATHY ST. HILAIRE, ETC.
Plaintiff, Appellant,
v.
CITY OF LACONIA, ET AL.
Defendants, Appellees.
ERRATA SHEET ERRATA SHEET
The opinion of this Court issued on December 1, 1995, is amended as follows:
On page 22, the first paragraph should be deleted and the following paragraph inserted in its place:
Summary judgment in favor of the municipalities, the City of Laconia, the Town of Belmont and the County of Belknap, is affirmed because there is no evidence, even had plaintiff shown a deprivation of St. Hilaire's constitutional rights, that it was as a result of official action taken pursuant to a "custom or usage" of the municipality. See Monell v. New York City Dep't. of Social Servs. 436
U.S. 658, 691 (1978). Other than this single incident, there is no evidence even proffered to show such a municipal "custom and usage." Evidence of a single incident is usually insufficient to establish a "custom or usage." Mahan v. Plymouth County House of Corrections, 64
F.3d 14, 16-17 (1st Cir. 1995).
United States Court of Appeals For the First Circuit
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Circuit Judge,
Aldrich and Campbell, Senior Circuit Judges.
David H. Bownes, with whom A. G. O'Neil, Jr. and Normandin,
Cheney & O'Neil were on brief, for appellant.
Wayne C. Beyer, with whom Wayne C. Beyer and Associates, P.C. was
on brief, for appellees City of Laconia, Town of Belmont, David A. Gunter, David Nielsen, and Brian Loanes. Donald J. Perrault, with whom Christine Desmarais-Gordon and
Wadleigh, Starr, Peters, Dunn & Chiesa were on brief, for appellees
County of Belknap, Robert Dupuis, Jr., and Daniel Collis.
December 1, 1995
LYNCH, Circuit Judge. A tragic sequence of events LYNCH, Circuit Judge.
leaving Philip St. Hilaire dead from wounds from a police
bullet and leaving law enforcement officers and their
municipal employers sued by his widow brings this case before
us. The district court entered summary judgment against the
widow's action under 42 U.S.C. 1983, finding that the
officers were protected by qualified immunity. Mrs. St.
Hilaire appeals, saying there are genuine disputes of
material fact and that the officers abrogated clearly
established constitutional rights. We hold that while there
are disputes of fact, those disputes are not material. We
affirm because the defendants are entitled to qualified
immunity in that they did not violate any constitutional law
that was clearly established at the time of the shooting and
they could reasonably have believed their search warrant was
supported by probable cause.
FACTS
Armed with some evidence (the sufficiency of which
plaintiff challenges), Deputy Robert Dupuis of the Belknap
County Sheriff's Office applied for a search warrant from the
local district court to search both the person of Philip St.
Hilaire and his place of business, Laconia Auto Wrecking.
Based on information from a confidential informant, the
police believed St. Hilaire was selling cocaine at Laconia
Auto Wrecking and that he had just travelled to New York to
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"score" a load of cocaine. The warrant issued and the police
planned their operation to execute the search warrant.
It was a joint operation between the Belknap
Sheriff's Office, the Belknap Police and the Laconia Police.
The participants -- defendants Deputy Dupuis, Deputy Daniel
Collis, Sgt. David Nielsen, Sgt. Brian Loanes, and Detective
David Gunter -- met in the early evening of April 27, 1990.
The police believed St. Hilaire to be armed and possibly
dangerous. They knew that St. Hilaire carried a .357 caliber
revolver or a .25 caliber semi-automatic pistol, or both, and
that he had a shotgun and a crossbow on the premises. They
also had information that St. Hilaire had, a few days
earlier, pointed a gun at the head of a person who had
stooped to pick up St. Hilaire's dropped money bag. The
police had also received complaints some time earlier about
the sounds of shooting from the auto yard.
The police were concerned about the reflective
glass on the front of Laconia Auto Wrecking, which made it
difficult for people outside to see in but easy for people
inside to see out. They felt it would be a danger to the
police to approach the front of the building abruptly.
They decided that Deputy Dupuis and Sergeants
Nielsen and Loanes would execute the search warrant.
Detective Gunter, stationed across the street to help with
surveillance, would then come in with his drug dog, Lux.
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Deputy Sheriff Collis was also stationed across the street,
monitoring the auto yard, in radio communication with Dupuis.
Sergeant Nielsen was in uniform; the remaining four defendant
officers were in plain clothes. The search team waited at
the rear of the building. Patrolmen in two marked cruisers
were stationed on the road on either side of the business.
The plan was as follows. The team, led by Sgt.
Nielsen would enter the building and then search St. Hilaire
and the building. If the building was closed, the officers
would find a way to enter or would wait for St. Hilaire to
emerge and then reach him outside. They planned to identify
themselves as law enforcement officers and state their
purpose. Sergeant Nielsen was to lead because he was in
uniform and St. Hilaire knew him from prior encounters. The
officers thought this would be the safest way to proceed.
Detective Gunter testified that, in execution of a search
warrant, the best policy is to make sure the subject
understands that he is dealing with a police officer.
Things did not go according to plan. After
watching someone else unsuccessfully trying to get in to the
building, Collis concluded that the front door was likely
locked and radioed so to Dupuis. Dupuis decided on more
manpower and called Detective Gunter over to join the team
waiting behind the building. Collis then saw St. Hilaire
leave the building with his dog, lock up, and walk toward his
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car in the parking lot. Collis radioed this information to
Dupuis.
The team, waiting behind the auto-wrecking
building, decided to move in. Detective Gunter, who was
closest to the parking lot, ran in front, ahead of the
others. The police rounded the corner of the building and
travelled the roughly 125 feet to the car in a period of
seconds, hoping to reach St. Hilaire before he got into his
car. It was not to be. St. Hilaire had already put his dog
in the back seat, gotten into the driver's seat of his car
and turned on the engine. Detective Gunter, who was dressed
in jeans and a t-shirt, ran up to the car.
St. Hilaire, at that moment, looked up and saw a
stranger dressed in jeans and a t-shirt, approach his open
car passenger window, pointing a .357 magnum revolver toward
him. St. Hilaire's eyes widened. St. Hilaire reached for
his own gun, or so it appeared to Detective Gunter.
Detective Gunter fired a bullet, hitting St. Hilaire in the
neck. The bullet lodged in St. Hilaire's vertebra,
paralyzing him from the neck down.
Sergeant Nielsen, in uniform, reached the car next.
He saw that St. Hilaire's right hand was on top of a gun on
the car seat. Sergeant Nielsen told St. Hilaire to let go of
the gun. St. Hilaire replied that he could not, that he
could not move. The police removed the gun.
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St. Hilaire said to Sgt. Nielsen, "I didn't know
you guys were the cops. Why didn't he identify himself? Why
didn't he say he was a cop?" Later, at the hospital
emergency room, St. Hilaire repeatedly told his nurse, "He
didn't identify himself." St. Hilaire made the same
statements to his wife.
The police testified, at deposition, that they did
identify themselves. Detective Gunter testified that when he
was halfway to the car he yelled, "Phil, police, Phil" and
then, at the side of the car, he yelled "Hold it." He also
testified, "I'm sure I yelled 'police,' but I don't
remember." Sergeant Nielsen said that he heard Detective
Gunter say, "Hold it Phil, police. Hold it, police," as
Detective Gunter was about a foot away from the passenger
side of the car. Deputy Dupuis said he was just behind
Detective Gunter and heard Detective Gunter yell "Phil,
police." Deputy Dupuis said he also yelled, "Police" as he
rounded the building, some 58 feet from the car. Sergeant
Loanes said he heard someone say something like "Police,
freeze." Two other officers, who had been stationed across
the street, heard someone yell, "Police." One of them,
Collis, heard "Police" within two seconds of the gunshot. A
passing motorist heard "Freeze," just before seeing the flash
of a gun. Detective Gunter also said he had his police badge
held in his extended left hand as he approached the car.
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Dupuis saw the badge in Detective Gunter's left hand
immediately after the shooting.
Some currency and a bag containing three-fourths of
an ounce of cocaine, worth about $2,200, were recovered from
St. Hilaire's jacket. St. Hilaire died in October 1991 as a
result of complications from his injuries. He was forty
years old.
LEGAL CLAIMS
Kathy St. Hilaire brought suit individually and as
executrix of the estate under 42 U.S.C. 1983 asserting that
defendants had violated the Fourth Amendment. She also
brought pendent state law claims for negligence and negligent
and intentional infliction of emotional distress.
Plaintiff's Fourth Amendment theories were that the search
warrant was obtained without probable cause and that the
defendants "used unreasonable force in executing a search
warrant upon her husband in that they failed to identify
themselves as police officers and then shot her husband when
he failed to yield."
The district court entered summary judgment based
on qualified immunity. That decision is reviewed de novo.
Hegarty v. Somerset County, 53 F.3d 1367, 1372 (1st Cir.
1995)(citing Jirau-Bernal v. Agrait, 37 F.3d 1, 3 (1st Cir.
1994)), petition for cert. filed (U.S. Oct. 17, 1995) (No.
-7- 7
95-629). All facts are reviewed in the light most favorable
to the party opposing summary judgment. Id.
The ultimate question of qualified immunity should
ordinarily be decided by the court.1 Hunter v. Bryant, 502
U.S. 224, 228 (1991). In determining whether there is a
qualified immunity defense "the court should ask whether the
agents acted reasonably under settled law in the
circumstances." Id. This court has identified two prongs to
1. While this court has not had the occasion to explore fully the allocation of functions between judge and jury where facts relevant to the immunity defense are in dispute, we have said that "we doubt the Supreme Court intended this dispute to be resolved from the bench by fiat." Prokey v.
Watkins, 942 F.2d 67, 72 (1st Cir. 1991). The ultimate
question of whether a reasonable police officer, on the basis of information known to him, could have believed his actions were in accord with constitutional rights is "a question of law, subject to resolution by the judge not the jury." Id.
at 73. But if there is a factual dispute, "that factual dispute must be resolved by a fact finder." Id. The precise
question of whether the judge may intercede and play that fact finder role appears not to have been clearly decided by the Supreme Court. Some courts, consonant with the Seventh Amendment, have preserved the fact finding function of the jury through special interrogatories to the jury as to the disputes of fact, reserving the ultimate law question to the judge. See King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993);
Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied, 498
U.S. 967 (1990); Lubcke v. Boise City/Ada Cty. Housing Auth.,
124 Idaho 450, 860 P.2d 653, 667 (1993); see also Oliveira
v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994) (when material
facts were disputed, issue of qualified immunity was for the jury), cert. denied, 115 S. Ct. 721 (1995); Karnes v.
Skrutski, 62 F.3d 485, 491 (3d Cir. 1995)(same); Presley v.
City of Benbrook, 4 F.3d 405, 410 (5th Cir. 1993) (if there
remain disputed issues of material fact, jury, properly instructed, may decide issue of qualified immunity); Brandenburg v. Cureton, 882 F.2d 211, 216 (6th Cir. 1989)
(jury is final arbiter of qualified immunity when issue depends upon which version of the facts the jury finds).
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the basic qualified immunity analysis. Hegarty, 53 F.3d at
1373 (quoting Burns v. Loranger, 907 F.2d 233, 235-36 (1st
Cir. 1990)). First, the court must establish whether the
constitutional right asserted by the plaintiff was "clearly
established" at the time of the alleged violation. Id.
Second, the court must ask whether "a reasonable official
situated in the same circumstances should have understood
that the challenged conduct violated that established right."
Id. (quoting Burns, 907 F.2d at 236).
Whether the rights alleged are "clearly
established" is a question of law for the court. Elder v.
Holloway, 114 S. Ct. 1019, 1023 (1994). For purposes of
determining qualified immunity, the officer's actions are
measured by a standard of "objective legal reasonableness . .
. in light of the legal rules that were clearly established
at the time [they] were taken."2 Anderson v. Creighton, 483
U.S. 635, 639 (1987) (internal quotation omitted).
The Supreme Court, recognizing that the use of
summary judgment in qualified immunity cases could be
undermined, has held that a very broad articulation of the
2. This court has noted that, at least in police misconduct cases, the objective reasonableness standard for liability is most likely the same as that for a qualified immunity defense. Roy v. Inhabitants of the City of Lewiston, 42 F.3d
691, 694 (1st Cir. 1994). But see Oliveira, 23 F.3d at 648-
49 (maintaining that the two standards are distinct). In any event, we draw on the cases decided in the liability context for guidance in deciding the qualified immunity question. See, e.g., Graham v. Connor, 490 U.S. 386, 397 (1989).
-9- 9
"clearly" established law at the time of the alleged
violation is inappropriate:
[T]he right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.
Anderson, 483 U.S. at 640. Without such a rule, the Court
said, "[a] passably clever plaintiff would always be able to
identify an abstract clearly established right that the
defendant could be alleged to have violated," id. at 640 n.2,
and so defeat summary judgment.3
The Court has also warned against requiring too
great a specificity in the "clearly established law" such
that the officer would be granted qualified immunity "unless
the very action in question ha[d] previously been held
unlawful." Anderson, 483 U.S. at 640. An earlier warning
against exactly such a misapplication of the qualified
immunity doctrine was given in Mitchell v. Forsyth, 472 U.S.
511 (1985), a warning cited in Anderson. In Mitchell the
court noted:
We do not intend to suggest that an official is always immune from liability
3. Similarly, we note, a "passably clever" defendant might characterize the right involved in such broad terms as to say such a broad articulation could not permit a reasonable official to understand that what he is doing violates that right and so the right was not "clearly established."
-10- 10
or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances.
472 U.S. at 535 n.12. The proper characterization of the
"clearly established law" is implicated in this case.
The Shooting
Plaintiff asserts two Fourth Amendment theories as
to the shooting, both independent of her Fourth Amendment
claim as to the warrant. Plaintiff argues that "[n]o
reasonable law enforcement agent could believe that in
executing a search warrant the law allowed him to surprise a
suspect on a dead run, in plain clothes, with gun drawn at
close range, and not provide that individual with adequate
and reasonable notice of his identity and his lawful
purpose." Plaintiff also argues that the facts of record
"are sufficient to raise a material and genuine issue as to
whether [Detective] Gunter had a reasonable belief he was
acting in self defense." She claims that the "resolution of
these issues is an inherently fact-based matter for the jury
as no other officers observed the alleged conduct of St.
Hilaire in reaching for the weapon." The latter claim is, we
believe, without merit. The first claim, that the police
were required to identify themselves and their lawful
purpose, however, raises difficult issues.
Plaintiff argues that summary judgment was improper
because there were material facts in dispute. We agree that
-11- 11
there is, on the record, a dispute of fact as to whether the
police did identify themselves. St. Hilaire's first words,
as he sat with a bullet hole in his neck, were to ask why the
police had not identified themselves. He repeated this
question at the hospital and told his nurses and his wife
that the police did not identify themselves. While an
inference can be drawn from the deposition testimony of the
officers that St. Hilaire simply did not hear the
identifications given by the police, another plausible
inference could be drawn that the police did not identify
themselves. A passing motorist who heard the police say
"freeze" did not hear the word "police" mentioned, although
the police testimony is that the two words were uttered
together. Where "inferences to be drawn from the web of
facts are disputed and unclear -- and are likely to depend on
credibility judgments," there is a dispute of fact. Prokey
v. Watkins, 942 F.2d 67, 73 (1st Cir. 1991).
The existence of a factual dispute does not end the
inquiry. In summary judgment terms, the disputed fact must
be material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In the context of a qualified immunity defense,
the legal questions for the court to decide may well
determine if the dispute is material. Here, the district
court acknowledged that the plaintiff's argument raised "more
troubling questions." The court also assumed, without
-12- 12
deciding, that plaintiff had raised a genuine factual dispute
as to whether defendants identified themselves as they
approached St. Hilaire's vehicle. St. Hilaire v. City of
Laconia, 885 F. Supp. 349, 357 n.2 (D.N.H. 1995).
The court nonetheless entered summary judgment for
defendants, on the grounds that defendants did not violate
any "clearly established" law. It reasoned that St.
Hilaire's Fourth Amendment rights did not attach until the
seizure actually occurred and that the shooting constituted
the seizure. Id. at 357 n.3. It reasoned that the issue
before it was whether there was a clearly established
obligation under the Fourth Amendment for police not
unreasonably to create circumstances where the use of deadly
force becomes necessary and if so, whether any such
obligation was "clearly established." Id. at 356-57. It
said there was no such clearly established obligation.
The district court analysis was reasoned and
grounded on law from other Circuits. See id. at 357-58
(citing Drewitt v. Pratt, 999 F.2d 774, 780 (4th Cir. 1993)
(look only to whether it was reasonable for police officer to
shoot in the circumstances as they existed at that moment);
Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) ("we
scrutinize only the seizure itself, not the events leading to
the seizure"); Carter v. Buscher, 973 F.2d 1328, 1332 (7th
Cir. 1992) ("[P]re-seizure conduct is not subject to Fourth
-13- 13
Amendment scrutiny.")). We believe that reasoning to be in
error and to create some of the difficulties warned against
in Mitchell and Anderson. We nonetheless affirm on the
ground that the factual dispute as to whether the defendant
officers identified themselves as they approached St. Hilaire
is immaterial as a matter of law.
We first reject defendants' analysis that the
police officers' actions need be examined for
"reasonableness" under the Fourth Amendment only at the
moment of the shooting. We believe that view is inconsistent
with Supreme Court decisions and with the law of this
Circuit. The Supreme Court in Brower v. Inyo, 489 U.S. 593
(1989), held that once it has been established that a seizure
has occurred, the court should examine the actions of the
government officials leading up to the seizure.4 The Court
held that petitioners' decedent was "seized" when he crashed
into a police roadblock set up in order to stop his flight.
4. The district court's citation of California v. Hodari D.,
499 U.S. 621 (1991), is inapposite. The question before the Supreme Court in Hodari was whether the defendant, who
discarded cocaine while being pursued by police, had been "seized" at the time he dropped the drugs, for the purpose of determining whether the drugs were the fruit of an illegal seizure. Id. at 623. Thus, the question was not whether the
seizure was reasonable, which requires an examination of the
totality of the circumstances, but whether there had been a seizure at all. We do not read this case as forbidding courts from examining circumstances leading up to a seizure, once it is established that there has been a seizure. We
understand Hodari to hold that the Fourth Amendment does not
come into play unless there has been a seizure, not that it
does not come into play until there has been a seizure.
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"We think it enough for a seizure that a person be stopped by
the very instrumentality set in motion or put in place in
order to achieve that result." Id. at 599. The Court
remanded the cause for a determination of whether the seizure
was "unreasonable" in light of petitioners' allegations that
the roadblock had been set up in such a manner as to be
likely to kill the decedent. Id.; see also Plakas v.
Drinski, 19 F.3d 1143, 1150 (7th Cir.) ("[W]e carve up the
incident into segments and judge each on its own terms to see
if the officer was reasonable at each stage."), cert. denied,
115 S. Ct. 81 (1994).
This court has recently followed a similar
approach. In Hegarty, this court examined each of the
actions leading up to the mortal wounding of a woman whom
police officers were attempting to arrest for recklessly
endangering the safety of four campers. 53 F.3d 1367.
Instead of focusing solely on whether the officer who shot
Hegarty was acting in self-defense at the moment of the
shooting (Hegarty had picked up a rifle and raised it in the
direction of the officers and ignored their demands to drop
it), the court examined all of the actions of the officers to
determine whether there was probable cause to arrest Hegarty
and whether there were exigent circumstances to allow a
forcible, warrantless, nighttime entry into her dwelling.
Id. at 1374-79. Similarly, in Roy v. Lewiston, this court
-15- 15
examined all of the surrounding circumstances in determining
whether the police acted reasonably: "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 . . . for thinking him capable
of assault." 42 F.3d at 695.
This focus on the moment of the shooting led the
district court to conclude that the issue was whether there
was any clearly established constitutional duty on the part
of police to avoid creating situations which increased the
risk of use of deadly force. The district court concluded
there was no such generalized duty. Cf. Carter v. Buscher,
973 F.2d 1328, 1331-33 (7th Cir. 1992) (reading Brower to
mean that courts should consider reasonableness of seizure in
totality of circumstances, but should not consider whether it
was reasonable for the police to create the circumstances).
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. Such a contention itself creates a risk that the
"duty" is so broadly defined that it gives inadequate notice
of what would violate the duty and thus would fall back on
whether those specific facts have occurred in the case law
before. Plaintiff instead makes a narrower, more specific
claim.
-16- 16
Plaintiff contends that in executing a search
warrant, the Fourth Amendment's prohibition against
"unreasonable searches" requires the police to identify
themselves as police and state their purpose.5 Plaintiff's
theory is that if the police had properly identified
themselves, St. Hilaire would have known they were police,
would not have himself felt endangered when he saw a stranger
approach with a gun in his hand, and that St. Hilaire would
not have made a movement in the direction of his gun. It is
that movement which led Detective Gunter to fire his own
weapon. There is some additional support in the record for
plaintiff's theory. St. Hilaire and the police had had prior
dealings. In each, the police identified themselves and St.
Hilaire did not threaten them.
It falls to the court to determine whether this
right allegedly violated was "clearly established" at the
time of the incident. "Whether an asserted federal right was
clearly established at a particular time, so that a public
5. Plaintiff relies on Tennessee v. Garner, 471 U.S. 1
(1985), which held that the Fourth Amendment prohibits use of deadly force to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Garner indeed
establishes that "apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Id. at 6. But Garner, while helpful, did
not resolve immunity issues in that case, nor does it do so here.
-17- 17
official who allegedly violated the right has no qualified
immunity from suit, presents a question of law." Elder, 114
S. Ct. at 1022.
Plaintiff relies on the Supreme Court's recent
decision in Wilson v. Arkansas, 115 S. Ct. 1914 (1995), which
held that the reasonableness of the search of a dwelling
depended in part on whether law enforcement officers
announced their presence and authority prior to entering,
thus incorporating the common law "knock and announce" rule
into the Fourth Amendment.
Assuming arguendo that the Wilson rule supports
plaintiff's case,6 plaintiff's argument succeeds only if
Wilson merely restated what was already clearly established
constitutional law at the time of the shooting in 1990. See
Davis v. Scherer, 468 U.S. 183 (1984) (constitutional right
to a pretermination or prompt post-termination hearing was
6. Fourth Amendment law in some contexts recognizes a distinction between a person's home and a person's car. For example, the Fourth Amendment permits a slightly broader search pursuant to the arrest of the occupant of a vehicle and some warrantless searches of vehicles are permitted even if there are not emergency circumstances. See generally 1
Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 3.7
(1984). One explanation for the different protection of items found in vehicles is that "[o]ne has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects . . . . It travels public thoroughfares where both its occupants and its contents are in plain view." United States v. Chadwick,
433 U.S. 1, 12 (1977) (quoting Cardwell v. Lewis, 417 U.S.
583, 590 (1974)).
-18- 18
not yet clearly established at time of discharge and it
availed plaintiff not that defendant state officials violated
state administrative regulations requiring such hearing
because 1983 protects constitutional rights); Elder, 114 S.
Ct. at 1023 ("[T]he clearly established right [must] be [a]
federal right."); Harlow, 457 U.S. at 818. Thus, in order
for the plaintiff to prevail, the notice requirement must
have been clearly rooted in the Fourth Amendment
jurisprudence in 1990. Plaintiff's argument fails because at
the time of the shooting the notice requirement was not
clearly of constitutional dimension.
The Court in Wilson noted that it had "never
squarely held that this [common law] principle [of
announcement] is an element of the reasonableness inquiry
under the Fourth Amendment." 115 S. Ct. at 1918. The
Supreme Court granted certiorari in Wilson precisely in order
to resolve a conflict among state courts as to whether the
common-law notice requirement was a part of the
reasonableness inquiry under the Fourth Amendment. Id. at
1916. The Court noted that in California and Illinois, it
had been so held, but in Massachusetts, it had been held
merely a rule of common law, not constitutionally compelled.
Id. at 1916 n.1. The highest court in New Hampshire had held
only that there was a common law rule that "police officers,
before forcibly entering a dwelling, should knock, identify
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themselves and their purpose, and demand admittance." State
v. Jones, 127 N.H. 515, 503 A.2d 802, 805 (1985). The court
in Jones further held that this rule "ha[d] its basis in the
common law" but did not foreclose the possibility that a
failure to knock and announce may be so flagrant that a
subsequent entry could violate the state constitution's
prohibition against unreasonable searches and seizures. Id.
at 805-06. The issue of whether the search at issue violated
the federal constitution was not before the New Hampshire
court. Id. at 805. Cf. Prokey, 942 F.2d at 72 n.5 (looking
to Maine law definition of probable cause as to immunity
question).
The First Circuit has not decided whether a search
in violation of the "knock and announce" rule violated the
Fourth Amendment, although it has considered alleged
violations of the federal "knock and announce" statute
applicable to federal officers, 18 U.S.C. 3109. See,
e.g., United States v. One Parcel of Real Property, 873 F.2d
7, 9 (1st Cir.), cert. denied sub nom. Latraverse v. United
States, 493 U.S. 891 (1989); United States v. DeLutis, 722
F.2d 902, 908-09 (1st Cir. 1983). Thus, the established law
at the time of the shooting was that the notice requirement
was embodied in New Hampshire's common law. It was not,
though, clearly established in this Circuit as a
constitutional requirement until Wilson. In a 1983 action,
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plaintiffs must show the constitutional right involved was
clearly established. Davis, 468 U.S. at 194. Accordingly,
under Harlow the defendants are entitled to qualified
immunity on this theory.
As to the plaintiff's theory that there were
disputed facts as to whether Detective Gunter had a
reasonable belief he was acting in self-defense when he shot
St. Hilaire, we, like the district court, see no such
dispute. See 885 F. Supp. at 356-57. The judgment Detective
Gunter made in that split second was at the very least
reasonable, and it is not the role of the court to second-
guess the decision. See, e.g., Hegarty, 53 F.3d at 1377; see
also Hunter, 502 U.S. at 229; Anderson, 483 U.S. at 641.
The Search Warrant.
Whether or not there was probable cause for the
warrant, defendants are entitled to qualified immunity unless
"the warrant application is so lacking in indicia of probable
cause as to render official belief in its existence
unreasonable." Malley v. Briggs, 475 U.S. 335, 344-345
(1986).
The facts presented in the warrant application are
not disputed. We are thus left with the question of whether
defendants are entitled to qualified immunity as a matter of
law. Fed. R. Civ. P. 56(c). Recognizing that the police may
not obtain immunity by relying on the judgment of the
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judicial officer issuing the warrant under Malley, the
defendants argue that there were reasonable indicia of
probable cause and their belief they had probable cause can
not be called unreasonable. That is, indeed, what the
undisputed record demonstrates. A confidential informant
told Deputy Dupuis that St. Hilaire was selling cocaine from
Laconia Auto Wrecking, which was owned and operated by St.
Hilaire. Dupuis consulted with detectives at the Laconia and
Belmont Police Departments who had worked with the
confidential informant on prior occasions. These detectives
told Dupuis that the informant had twice previously provided
information that led to seizures of contraband and the
arrests and convictions of several persons. The informant
then met with Dupuis and Detective Gunter in order to make a
controlled purchase at Laconia Auto Wrecking. The substance
purchased tested positive for cocaine. A second controlled
purchase was made; the substance obtained also tested
positive for cocaine. The informant also told Dupuis that
St. Hilaire was going to New York to "score" a load of
cocaine. Airline records confirmed that St. Hilaire had made
a reservation to fly to New York around the same time as the
informant's report.
Summary judgment in favor of the municipalities,
the City of Laconia, the Town of Belmont and the County of
Belknap, is affirmed because there is no evidence, even had
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plaintiff shown a deprivation of St. Hilaire's constitutional
rights, that it was as a result of official action taken
pursuant to a "custom or usage" of the municipality. See
Monell v. New York City Dep't. of Social Servs. 436 U.S. 658,
691 (1978). Other than this single incident, there is no
evidence even proffered to show such a municipal "custom and
usage." Evidence of a single incident is usually
insufficient to establish a "custom or usage." Mahan v.
Plymouth County House of Corrections, 64 F.3d 14, 16-17 (1st
Cir. 1995).
Municipal Defendants
The claims against the municipal defendants
necessarily fail because we find there was no deprivation of
St. Hilaire's clearly established rights and there was
reasonable ground to believe the warrant supported by
probable cause.
The judgment of the district court is affirmed. No
costs are awarded.
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