Campos v. Van Ness, et al

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; David H. Souter, Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Published. [12-1109]

Case: 12-1109

Document: 00116511332

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Date Filed: 04/01/2013

Entry ID: 5722768

United States Court of Appeals
For the First Circuit

No. 12-1109
CAMILA M. CAMPOS, Individually, and as
Administratrix of the Estate of Andre Martins,
Plaintiff, Appellee,
v.
CHRISTOPHER VAN NESS, Yarmouth Police Officer;
TOWN OF YARMOUTH, MA,
Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellants.
Paul F. Leavis, with whom Deborah M. Santello and Leavis &
Rest, P.C. were on brief, for appellee.

April 1, 2013

*

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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STAHL, Circuit Judge. After a vehicle pursuit during the
early morning hours of July 27, 2008, Officer Christopher Van Ness
of the Yarmouth, Massachusetts Police Department shot and killed
Andre Martins.

Plaintiff-appellee Camila Campos, individually and

as administratrix of Martins's estate, brought this civil rights
action against defendants-appellants Van Ness and the Town of
Yarmouth under 42 U.S.C. § 1983 and Mass. Gen. Laws ch. 12, § 11I.
Defendants-appellants filed a motion for summary judgment, arguing
that Campos had not established that Van Ness's use of force
violated Martins's constitutional rights and that, in any event,
Van Ness was entitled to qualified immunity.

The district court

denied the motion without opinion.
We have jurisdiction to entertain an interlocutory appeal
from a denial of summary judgment on qualified immunity grounds
"only if the material facts are taken as undisputed and the issue
on appeal is one of law."
(1st Cir. 2011).

Mlodzinski v. Lewis, 648 F.3d 24, 27

Thus, when the parties tell two different

stories, as is the case here, we typically must view the facts and
draw all reasonable inferences in the non-movant's favor.
28.

Id. at

In Scott v. Harris, 550 U.S. 372 (2007), however, the Supreme

Court carved out an exception to that rule, concluding that where
the non-movant's account "is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion

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for summary judgment," id. at 380; see also Statchen v. Palmer, 623
F.3d 15, 18 (1st Cir. 2010) (noting that a court need not accept
"incredible assertions" by the non-moving party).

Defendants-

appellants attempt to fit this case within the Scott framework,
claiming

that

Campos's

description

of

the

shooting

is

"so

discredited by the record that no reasonable jury could believe
her" and urging us to decide the legal question of immunity based
largely on Van Ness's account.
The district court here unfortunately exercised its right
not to explain the basis for its denial of summary judgment.

See

Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998).

We

therefore "must perform the equivalent of an archeological dig and
endeavor to reconstruct the probable basis for the district court's
decision."

Id.

As we explain below, that process leads us to

conclude that this case is distinguishable from Scott and to assume
that the district court denied the motion on the ground that there
remains

a

genuine

dispute

of

material

fact

as

to

the

exact

circumstances of the shooting, which must be resolved by a jury.
On the night in question, at around 1:00 a.m., Martins
was driving through Yarmouth in a black Lincoln with Campos in the
passenger seat.

Van Ness, who claims to have observed the Lincoln

traveling "at a high rate of speed," began following the car in his
police cruiser.

Campos maintains that Martins did not begin

speeding until he noticed the cruiser behind him and, even then,

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was driving "fast but not really fast."

Entry ID: 5722768

With Van Ness in pursuit,

Martins ended up on Baxter Avenue and pulled onto the front lawn of
a house, in an attempt to make a u-turn and avoid a second officer,
whose cruiser was blocking both lanes of Baxter Avenue ahead of
Martins. Van Ness followed Martins onto the Baxter Avenue lawn and
made contact with the left rear quarter panel of the Lincoln with
his cruiser. The Lincoln slid across the grass and came to a stop.
According

to

an

accident

reconstruction

report

that

Campos

commissioned,1 the two vehicles wound up almost parallel, facing
each other, on the lawn.

The Lincoln's front end was pointed

toward Baxter Avenue and slightly toward the driver's side door of
the cruiser, and the cars' A-pillars2 were about 8.8 feet apart.
Van Ness got out of his cruiser and aimed his gun at the Lincoln.
What happened next is hotly contested and was witnessed
only by Martins, Campos, and Van Ness.

Campos claims that Van Ness

positioned himself beside the Lincoln and shot Martins through the
driver's side window.

She maintains that Martins was trying to

back up the car when Van Ness fired, but the car was not actually
moving.3

According to Campos, after Van Ness fired, the Lincoln

1

The report was prepared using measurements of the scene
taken by professional surveyors, observations of gouges in the
lawn, and post-incident photographs and video footage.
2

The A-pillars are the frontmost pillars on a car; they
separate the windshield from the front doors.
3

We do not agree with defendants-appellants that Campos's
initial statement to the police, when read in its entirety,
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began traveling forward but was not "anywhere close" to Van Ness
and did not strike him.
Van

Ness,

on

the

other

hand,

says

he

immediately

positioned himself behind the open driver's side door of his
cruiser, pointed his gun at Martins, and ordered Martins to show
his hands. Within seconds, Martins began accelerating toward him.
Out of what Van Ness describes as a belief that his life was in
danger, he fired at the Lincoln as it passed by him.

Van Ness also

claimed, both in a statement prepared after the accident and during
his deposition, that the Lincoln's driver's side mirror struck the
left side of his body as the car moved past him, though he has not
mentioned that fact on appeal.
A ballistics report, which Campos also commissioned,
states that "Van Ness was positioned to the side of the open
driver's window of the Martins vehicle" when he fired his first
shot.

The bullet struck Martins on the left side of his back and

exited through his chest.

Van Ness fired two more shots through

the Lincoln's rear window.
The accident reconstruction report does not specify when
those shots occurred or where Van Ness was positioned in relation
to the Lincoln when he fired them, but it does chart the Lincoln's
movement and likely speed from when it first stopped on the lawn

suggests that the Lincoln was actively backing up when Van Ness
fired, and we therefore do not find that it contradicts her
deposition testimony on this point.
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until it reached its final position on Baxter Avenue after the
shooting.

According to the report, from its stopped position

facing Baxter Avenue and the cruiser, the Lincoln drove past the
cruiser,

with

the

Lincoln's

driver's

side

door

passing

the

cruiser's (open) driver's side door, at a speed of no more than
seven to thirteen miles per hour.4

The expert found no damage to

the cruiser door, and the report therefore concludes that, because
Van Ness claimed to have been standing behind that door when the
Lincoln passed by him, his testimony that the Lincoln struck his
left side was "inconsistent with the collected physical evidence."
The Lincoln ended up on Baxter Avenue, where it came to
a stop.

Campos exited the car screaming.

Officers at the scene

administered first aid to Martins, but he was pronounced dead at
Cape Cod Hospital at 1:50 a.m.

The cause of death was a gunshot

wound to Martins's torso, which perforated his heart and lung.
While defendants-appellants dispute several aspects of
Campos's story, they are primarily asking us to set aside two
claims she has made that are relevant to the issue of qualified
immunity: (1) that Martins's car was not moving when Van Ness fired

4

As noted above, the accident reconstruction report states
that the cars began in a stopped position on the lawn, with their
A-pillars 8.8 feet apart. When the front bumper of the Lincoln
passed the leading edge of the open cruiser door, the distance
between the A-pillars was 6.9 feet, and the Lincoln was traveling
no more than 7 miles per hour. When the driver's side mirror of
the Lincoln passed the leading edge of the open cruiser door, the
distance between the cars' A-pillars was 4.6 feet, and the
Lincoln's speed was no more than 13 miles per hour.
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the fatal shot; and (2) that the car began moving only after that
point and did not move near Van Ness.

Her testimony on those two

points, in defendants-appellants' view, contradicts the opinions of
her own accident reconstruction and ballistics experts.
But the accident reconstruction report only charts the
Lincoln's speed and path of travel as it moved from a stopped
position on the lawn, past the police cruiser, and onto Baxter
Avenue; it does not establish when, within that movement sequence,
Van Ness fired.

The reconstruction expert was apparently asked to

determine whether the Lincoln could have hit Van Ness, as Van Ness
claimed, and for that purpose, the expert explicitly used Van
Ness's testimony that he was standing behind the cruiser's open
driver's side door when the Lincoln traveled past him.

Nowhere,

however, does the report mention Campos's account or attempt to
reconcile her story with Van Ness's to determine where Van Ness was
positioned

when

he

took

the

fatal

shot,

or

when

within

the

Lincoln's movement sequence he took it.5
At first glance, the ballistics report seems to pose more
of a problem for Campos, since it states that "at the time that
Officer Van Ness fired his service pistol, Mr. Martin's [sic]

5

The report does appear to contradict Campos's deposition
claim that the cruiser was positioned to "the side rear" of the
Lincoln when the cars came to a stop on the lawn, but that does not
necessarily undermine the rest of her testimony, since the
operative question is where Van Ness was standing, and whether the
Lincoln was moving toward him, when he fired the fatal shot.
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vehicle was traveling past the position of Officer Van Ness at a
rate of travel between 7 and 13 miles per hour."

But that

conclusion is, according to the report itself, "[b]ased upon the
accident reconstruction" report (which accepted Van Ness's claim
that he was standing behind the cruiser door when the Lincoln drove
past him) and "Officer Van Ness's direct testimony that the vehicle
was traveling past him at the time he fired his service pistol."
The ballistics expert thus seems to have assumed the truth of Van
Ness's account and, under that set of facts, analyzed whether Van
Ness's use of force was reasonable (concluding that it was not).
The report does not address Campos's version of events, nor does it
indicate that Van Ness's telling is the only one corroborated by
the ballistics findings.6
We are therefore a long way from the videotape in Scott
that

captured

the

car

chase

in

question

contradict[ed]" the plaintiff's account.

and

"quite

clearly

550 U.S. at 378.

Campos's story does beg two questions, neither of which
we

need

answer

today,

because

properly put them before us.

defendants-appellants

have

not

The first is how the bullet entered

6

That the ballistics and accident reconstruction experts
both list Campos's interview with the Yarmouth Police Department as
one of the many pieces of information they relied on in forming
their opinions does not change our analysis. Viewing the reports
in the light most favorable to Campos, see Mlodzinski, 648 F.3d at
28, it is reasonable to infer from the absence of any discussion of
her account that the experts were not asked to compare it with Van
Ness's and determine which one was supported by the evidence.
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Martins's back if Van Ness was standing next to the driver's side
window of the Lincoln and the car was not moving when Van Ness took
the fatal shot.

Defendants-appellants did not raise this issue

below or on appeal and thus have not satisfied their "initial
responsibility of informing the district court of the basis for
[their] motion, and identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,' which . . . demonstrate the
absence of a genuine issue of material fact."

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56).
That failure, in turn, deprived Campos of the opportunity to
demonstrate, "through submissions of evidentiary quality, that a
trialworthy issue persists."

Iverson v. City of Boston, 452 F.3d

94, 98 (1st Cir. 2006) (citing Celotex Corp., 477 U.S. at 322-24).7
The second question is how two bullets ended up going
through the rear window of the car, given Campos's deposition
testimony that Van Ness fired all "[f]our or five shots" before the
Lincoln began moving.

Once again, however, the burden was on

defendants-appellants to make this point before the district court,
and their failure to do so left Campos with no opportunity to

7

Though we need not decide the issue, we do note that Campos
said in her statement to the police that Martins was trying to back
up the car when Van Ness fired the fatal bullet. Martins might
therefore have been turned away from the driver's side window when
Van Ness shot, which could explain how the bullet entered the left
side of his back under Campos's version of the events.
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See Celotex Corp., 477 U.S. at 322-24.

Entry ID: 5722768

Defendants-

appellants' belated invocation of the issue for the first time at
oral argument was insufficient, particularly given that their brief
describes Campos as having testified that Martins's car was stuck
only when Van Ness fired the fatal shot and "began moving . . .
after that first shot" (emphasis added).

See Constructora Andrade

Gutiérrez, S.A. v. Am. Int'l Ins. Co. of P.R., 467 F.3d 38, 47 (1st
Cir. 2006) ("We generally do not address arguments made for the
first time during oral argument, especially when the arguments are
contrary to the arguments made in the briefs.").
In short, defendants-appellants have not convinced us
that Campos's story is so "blatantly contradicted by the record
. . . that no reasonable jury could believe it."

Scott, 550 U.S.

at 380. Nor have they attempted, in the alternative, to accept all
of Campos's facts and inferences as true and "argue that even on
[Campos's] best case, they are entitled to immunity."
648 F.3d at 28.8
jurisdiction.

Mlodzinski,

We therefore dismiss the appeal for lack of

See id.

8

Defendants-appellants have suggested that "[w]hether the
[Lincoln] was moving before or shortly after the shot was fired is
immaterial for purposes of qualified immunity." They have not,
however, elaborated on that statement or explained why this case
(on the facts as Campos has presented them) is analogous to the
Eleventh Circuit and Supreme Court cases they cite. "It is not
enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel's work, create the ossature
for the argument, and put flesh on its bones." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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