BEGIN v. DROUIN et al
Filing
32
MEMORANDUM OF DECISION granting in part and denying in part 23 Motion for Summary Judgment. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JASON BEGIN,
Plaintiff
v.
LAURA DROUIN, et al.,
Defendants
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1:16-cv-00092-JCN
MEMORANDUM OF DECISION ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff Jason Begin alleges that Defendant Laura Drouin, an officer
with Defendant City of Augusta’s Police Department, used excessive force against him
when she shot and injured him on January 12, 2015. Plaintiff also asserts state law claims,
including a vicarious liability negligence claim against the City of Augusta.
The matter is before the Court on Defendants’ Motion for Summary Judgment.
(ECF No. 23.) Through the motion, Defendants argue that Defendant Drouin’s use of force
was reasonable, that any debate as to the reasonableness of the force used is insufficient to
overcome qualified immunity, that state law immunity doctrines shield Defendant Drouin
from liability on the state tort claims, and that the City of Augusta is immune on Plaintiff’s
vicarious liability claim. (Id.)
Following a review of the record, and after consideration of the parties’ arguments,
the Court grants in part and denies in part the motion.
I.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant 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). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
A court reviews the record in the light most favorable to the non-moving party,
resolving evidentiary conflicts and drawing reasonable inferences in the non-movant’s
favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If the court’s review of the record
reveals evidence sufficient to support findings in favor of the non-moving party, a trial
worthy controversy exists and summary judgment must be denied. Id. (“The district
court’s role is limited to assessing whether there exists evidence such that a reasonable jury
could return a verdict for the nonmoving party.” (internal quotation marks omitted)).
II.
SUMMARY JUDGMENT FACTS 1
Prior to January 2015, Plaintiff had a history of mental illness and treatment,
including inpatient treatment at Riverview Psychiatric Center in Augusta (Riverview) for
over nine years. (Plaintiff’s Statement of Additional Material Facts (PSAMF) ¶¶ 75 – 76,
ECF No. 25.) On August 2, 2004, Plaintiff was found not criminally responsible by reason
The facts set forth herein are derived from the parties’ Local Rule 56 statements of material facts and the
parties’ stipulation.
1
2
of insanity on a felony theft charge and a misdemeanor violation of conditions of release
charge. (Stipulation ¶ 1, ECF No. 20.) Based on the finding, the Superior Court committed
Plaintiff to the custody of the Commissioner of the Department of Behavioral and
Developmental Services, and Plaintiff was subsequently placed in Riverview. (Id. ¶¶ 2 –
3.)
On or about October 3, 2013, the Superior Court granted Plaintiff a modified
release, which permitted him to leave Riverview subject to certain conditions. (Id. ¶ 5.)
Pursuant to the modified release order, Plaintiff was required to reside in a group residential
program. (Id. ¶ 6.) In January 2014, Plaintiff was released from Riverview and began
residing in a group residential program. (Id. ¶ 7.)
On January 12, 2015, members of Riverview’s Assertive Community Treatment
Team (the ACT Team) met with Plaintiff at their office in Augusta; the purpose of the
meeting was to inform Plaintiff that the ACT Team had information which suggested he
was in violation of the terms of his community placement. (Stipulation ¶¶ 14, 23.) After
an initial discussion with Plaintiff, the ACT Team determined they would recommit
Plaintiff. (Id. ¶¶ 26, 29.) The ACT Team anticipated that Plaintiff would be upset by the
news, and called the Augusta Police Department to request the presence of an officer when
the ACT Team informed Plaintiff of the decision. (Id. ¶¶ 30, 32; PSAMF ¶¶ 62, 64.)
Defendant Drouin was dispatched to the office, where she met Greg Smith, a
member of the ACT Team. (PSAMF ¶ 56.) Mr. Smith informed Defendant Drouin that
Plaintiff was to be recommitted to Riverview and that Plaintiff might become
3
uncooperative.2 (Id. ¶ 62; Stipulation ¶ 39.) Mr. Smith was the only member of the ACT
Team with whom Defendant Drouin spoke when she arrived at the ACT Team office.
(PSAMF ¶ 59.) When Defendant Drouin asked Mr. Smith if Plaintiff had a history of
violence, Mr. Smith answered yes, but did not elaborate further. (Id. ¶ 40.)
Prior to speaking with Mr. Smith, Defendant Drouin was aware of Plaintiff’s name
and that she would be escorting him to Riverview. She had no prior knowledge about
Plaintiff. (Id. ¶¶ 43 – 44, 50; Stipulation ¶ 38.) Defendant Drouin had been to Riverview
previously, and understood that Riverview was a locked psychiatric hospital. (PSAMF ¶
52.)
Defendant Drouin entered the building with Mr. Smith, and waited out of view while
the ACT Team delivered the news to Plaintiff. (Defendants’ Statement of Material Facts
(DSMF) ¶ 1, ECF No. 24.) Defendant Drouin waited and listened in a hallway adjacent to
the relatively small room in which Plaintiff received the news. (Photographs of scene, ECF
Nos. 21-15, 21-16, 21-17, 21-18, 21-19, 21-20.) While she waited in the hallway of the
ACT Team offices, Defendant Drouin could hear some, but not all, of the conversation
between the ACT Team and Plaintiff. (Stipulation ¶ 42.)
During the meeting, Russell Kimball, a member of the ACT Team, told Plaintiff
that he would be returning to Riverview. (Stipulation ¶ 49.) Several other members of the
team stood or sat nearby, with at least three of the members standing in the short, narrow
entry to the office space. (Id. ¶¶ 45, 47, 48.) In response to the news, Plaintiff stated that
2
Defendant Drouin did not learn from dispatch the reason for the recommitment. (PSAMF ¶ 60.) Mr.
Smith explained briefly to Defendant Drouin the reason for her presence. (Id. ¶ 61.)
4
he was not going back to Riverview. (Id. ¶ 50; DSMF ¶ 2.) Mr. Kimball told Plaintiff the
decision was made, and Brian Charette, another member of the ACT Team, informed
Plaintiff that he had no choice in the matter and that a police officer was present to take
him to Riverview. (Stipulation ¶ 52; DSMF ¶ 3.) A member of the ACT Team then
motioned to Defendant Drouin to approach, which she did. (Stipulation ¶ 53.)
As she approached, Defendant Drouin saw a man seated in a chair along the wall to
her right, and then saw Plaintiff seated in one of the two chairs against the opposite wall.3
(Stipulation ¶ 54; Photo, ECF No. 21-18.) Plaintiff stood up and, as he stood, reached into
his pocket and said, “I should have done this moons ago.” (Stipulation ¶ 55; DSMF ¶ 4.)
When Plaintiff raised his right arm to approximately shoulder height, Defendant Drouin
saw that Plaintiff had a black folding knife in his hand that he quickly snapped into the
open position. (Stipulation ¶¶ 56 – 57; DSMF ¶ 13.)
When Plaintiff stood up, Philip Hunt, a mental health worker who was employed by
Motivational Services and who transported Plaintiff from his group home to the ACT
Team’s office, was the closest to Plaintiff. (Stipulation ¶¶ 15, 58.) Mr. Hunt did not make
any movements toward Plaintiff, and backed out of the way when he observed Defendant
Drouin approach. (Id. ¶ 59.)
Based on Plaintiff’s statement that he was not returning to Riverview, and his
sudden display of a knife he had concealed in his clothing, Defendant Drouin feared
3
In her answers to interrogatories, Defendant Drouin stated that Plaintiff was seated when he first came
into her view. (PSAMF ¶ 65, citing ECF No. 21-22, PageID # 317.)
5
Plaintiff would use the knife against the ACT team members or her.4 (DSMF ¶ 15.) When
Plaintiff raised the knife in his right hand, ACT Team members were in close proximity to
Plaintiff and Defendant Drouin. (Id. ¶ 16.) There was no one between Defendant Drouin
and Plaintiff. (Plaintiff’s Opposing Statement of Material Facts ¶¶ 16, 19, ECF No. 25.)
Defendant Drouin drew her firearm. As she did, she observed Plaintiff slash his
arms with the knife. (DSMF ¶¶ 17, 30.) Because Plaintiff inflicted severe wounds to
himself without any hesitation, Defendant Drouin feared he would not hesitate to use his
knife on her or the ACT Team members who were near him. (Id. ¶ 18.) Defendant Drouin
determined that if she did not disable Plaintiff with her firearm, Plaintiff could very quickly
use his knife against someone other than himself. (Id. ¶¶ 20, 27, 31.)
Approximately one second after Plaintiff pulled out his knife and opened it, as she
was drawing her firearm, Defendant Drouin yelled “hey, hey, hey” at Plaintiff. (Id. ¶ 21.)
Defendant Drouin gave Mr. Begin no verbal commands. (PSAMF ¶ 70.) She then fired
three shots, striking Plaintiff twice in the chest and once in the left shoulder; she stopped
shooting when Plaintiff fell to the floor. (Id. ¶¶ 22, 23; Stipulation ¶ 60.)
According to Defendant Drouin, the approximate distance between Defendant and
Plaintiff was 15 to 20 feet. (PSAMF ¶ 72.) Defendant Drouin estimates that the time from
when she first saw Plaintiff to the time she discharged her weapon was approximately four
to six seconds. (Stipulation ¶ 64.) Before discharging her weapon, Defendant Drouin did
4
At her deposition, Defendant Drouin testified that she saw Plaintiff withdraw a knife, open it at
approximately the level of his head, and use it to cut his arm(s). (Drouin Dep. at 24 – 27.)
6
not see Plaintiff take any steps toward anyone else after he stood up and took the knife
from his pocket. (PSAMF ¶ 69.) Plaintiff remained stationary. (Id.)
Defendant Drouin was certified to use an expandable baton and a Taser, and had
each available to her. (Stipulation ¶ 68.) She also had OC spray. (Id.) Defendant Drouin
did not use the OC spray, baton or Taser against Plaintiff. (Id. ¶ 69.) Defendant Drouin
was not attempting to arrest Plaintiff when she shot him. (Id. ¶ 70.)
Defendant Drouin was a member of the Augusta Police Department’s Crisis
Intervention Team (CIT). To become a member of the CIT, Defendant Drouin received
training and education as to the ways to communicate effectively with and otherwise
manage individuals with mental health issues. (Stipulation ¶¶ 71 – 73.) She also received
related training at the Maine Criminal Justice Academy. (Id. ¶ 74.) Although the Augusta
Police Department’s computer files contained information about Plaintiff, including that
caution should be used when interacting with him because he is suicidal, 5 Defendant
Drouin was unaware of the information at the time because she did not access the
information before she arrived at the ACT Team offices. (PSAMF ¶¶ 45, 46, 51.)
Mr. Charette, a vocational rehabilitation specialist, Mr. Hunt, a mental health
worker, and Mr. Kimball, a physician’s assistant, believed Plaintiff’s actions were
unpredictable.6 (DSMF ¶¶ 32 – 36.) Mr. Kimball, in particular, believed that Plaintiff
might use the knife against anyone who tried to stop him. (Id. ¶ 37.)
The information also includes a description of Plaintiff and states that he was “released from Riverview.”
(PSAMF ¶¶ 47 – 48.)
5
Plaintiff objects to Defendants’ statements regarding the impressions of others present at the time because
their subjective interpretation of events was unknowable to Defendant Drouin. Additionally, Mr. Hunt
6
7
The Augusta Police Department had in place Standard Operation Procedures for
“Situational Use of Force” (the Use of Force SOP) (ECF No. 21-12), in effect on January
12, 2015. (Stipulation ¶ 76.) The Use of Force SOP provides: “It is the policy of [the
Department] that an officer’s responsibility is to use only that amount of physical force that
reasonably appears necessary to affect an arrest, control a situation, or to defend the officer
or a third party from harm.” (ECF No. 21-12, § I.) Thus, “an officer may use only that
physical force that the officer reasonably and actually believes is necessary to effectively
bring an incident under control while protecting the officer and another, including the use
of an electronic weapon and less-than-lethal munitions, if applicable.” (Id. § I.C.)
The Use of Force SOP explains that the appropriate use of force is “situational.”
(ECF No. 21-12, § III.S.) It defines situational use of force as follows:
A dynamic process by which an officer assesses, plans, and responds to
situations that threaten public and officer safety. The assessment process
begins with the situation immediately confronting the officer, and moves to
the suspect’s behavior and the officer’s perceptions and tactical
considerations. Based on this assessment, the officer selects from the
available response options while continuing to evaluate the evolving
situation and adapt a plan and actions that are reasonable and effective for
the particular situation.
(Id.) Pursuant to the SOP, deadly force is justified when the officer “reasonably believes
such force is necessary … [f]or self-defense or to defend a third person from what the
officer reasonably believes is the imminent use of unlawful deadly force.”
(Id.
testified that he did not feel concerned for his own safety, and none of the people present testified that
Plaintiff ever made a move toward another person. Plaintiff’s objections are credited as qualifications.
8
§ VII.B.1.a.)7 The SOP defines “imminent” as “[i]mpending, immediate or appearing as
if about to happen.” (Id. § III.K.) The continuum of force set forth in the SOP is as follows:
A. Officer Presence: Officers in uniform or officers identifying themselves
as police officers are the lowest form of force used in the continuum of force.
B. Verbal Commands: The use of verbal directions to control or dictate an
individual’s actions.
C. Passive Control: Light, physical touching to guide a subject’s movements
and overcome low levels of resistance.
D. Compliance Techniques: Actual, physical bodily contact with a subject
and forcibly controlling a subject until resistance is overcome. This includes
control and defensive tactics, striking a subject with your body, using OC
spray, using electronic control devices or taking a subject to the ground.
These tactics are the use of non-deadly force.
E. Defensive Tactics: The use of impact weapons to gain compliance and
control. This also includes the pointing of a firearm at a person.
F. Deadly Force: Force that may cause death or serious bodily injury
including; the dispatch of a firearm or the delivery of a stroke or blow to a
subject’s head.
(Id. § IV.)
III.
A.
SUMMARY JUDGMENT ANALYSIS
Section 1983 – Excessive Force
Defendants contend they are entitled to summary judgment because the undisputed
facts demonstrate that Plaintiff cannot establish that, under the circumstances, Defendant
Drouin’s conduct was objectively unreasonable. Alternatively, Defendants argue that even
7
See also 17-A M.R.S. § 107 (physical force in law enforcement).
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if a factual issue exists as to the reasonableness of Defendant Drouin’s conduct, summary
judgment is warranted based on the qualified immunity doctrine.
Pursuant to the federal civil rights statute:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage ... subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law ....
42 U.S.C. § 1983.
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a
method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S.
266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To maintain
a claim under section 1983, a plaintiff must establish: “1) that the conduct complained of
has been committed under color of state law, and 2) that this conduct worked a denial of
rights secured by the Constitution or laws of the United States.” Barreto-Rivera v. MedinaVargas, 168 F.3d 42, 45 (1st Cir. 1999).
1.
Objective reasonableness
Excessive force claims are evaluated under the Fourth Amendment’s “objective
reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). “Determining
whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth
Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the countervailing governmental
interests at stake.” Id. at 396 (some internal quotation marks omitted) (quoting United
States v. Place, 462 U.S. 696, 703 (1983)). Relevant factors for consideration include “the
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severity of the crime at issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Id. (the so-called Graham factors).8
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. A court’s assessment must also account for the fact 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.” Id. at 396 – 97. The test is an objective test: “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Id. at 397.
To assess the “objective reasonableness” of Defendant Drouin’s conduct, the Court
must consider the conduct in light of the Graham factors. First, while Plaintiff’s conduct
was not necessarily criminal, the conduct was nevertheless serious. Given that Defendant
Drouin was present because the ACT Team believed Plaintiff might react in a way that
would require police assistance, and given the nature of Plaintiff’s conduct upon receipt of
the news that he was returning to Riverview, Defendant Drouin’s intervention was
understandable. The severity or seriousness of Plaintiff’s conduct, however, does not end
8
See also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (listing the following non-exhaustive
factors: “the relationship between the need for the use of force and the amount of force used; the extent of
the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity
of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff
was actively resisting”). The Graham factors are listed in the definition of excessive force supplied in the
Augusta Police Department’s Use of Force SOP. (ECF No. 21-12, § III.I.)
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the reasonableness analysis. The facts and circumstances also include Defendant Drouin’s
knowledge that Plaintiff could react emotionally to the news he was to receive, the fact
Plaintiff did not make a threatening move or gesture to any other person, and the fact that
other than yelling “hey, hey, hey,” Defendant Drouin did not provide Plaintiff with a
warning or directive before she discharged her firearm. The second Graham factor (i.e.,
whether Plaintiff posed an immediate threat to the safety of the officers or others),
therefore, is, in this case, an important consideration.
On this record, viewing the evidence most favorably to Plaintiff, a fact finder could
reasonably conclude that Plaintiff did not make a move toward any other person when he
displayed the knife,9 that the person closest to Plaintiff in the room (Philip Hunt) backed
away as Defendant Drouin approached, that Plaintiff made no verbal threats to any of the
individuals in the room, that Plaintiff did not refuse to comply with any commands made
by Defendant Drouin, and, therefore, that Plaintiff did not pose an immediate threat to
Defendant Drouin and the others who were present.
In their statement of material facts, Defendants assert that Plaintiff pointed the knife in Mr. Kimball’s
direction before and after Plaintiff slashed himself. (DSMF ¶ 35.) At his deposition, Mr. Kimball testified
as follows:
9
He made no lunges at me. He didn’t waive it threateningly. He didn’t do anything with
that knife, but immediately upon opening it this arm went up like that and … the knife
immediately went down like that across close to the antecubital area on his left arm.
(Kimball Dep. at 37 – 38, ECF No. 21-4.) After Plaintiff slashed himself, the knife, which he held in his
right hand, was pointed in Mr. Kimball’s “general direction.” (Id. at 38.) Based on the testimony, a fact
finder could conclude that given Plaintiff’s location in relation to Mr. Kimball and because Plaintiff was
holding the knife in his right hand, the knife was oriented in Mr. Kimball’s general direction, but Plaintiff
made no move or gesture suggesting an intention to use the knife on anyone other than himself.
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The third Graham factor asks whether the person actively resisted arrest or
attempted to evade arrest by flight. A fact finder could conclude that before discharging
her firearm, Defendant Drouin did not give Plaintiff any verbal commands. Although
Defendants contend Plaintiff’s statement that he was not going back to Riverview is
material to the resistance issue, under the circumstances presented in this case, the
significance of the statement would be for the fact finder to assess.
A review of the Graham factors and the record thus reveals that while Plaintiff
plainly posed a threat to himself,10 disputed material factual issues, including whether
Plaintiff presented an immediate threat to Defendant Drouin or others in the room, preclude
the entry of summary judgment based on the objective reasonableness of the conduct.
2.
Qualified immunity
Government officers are entitled to qualified immunity unless they violate a
constitutional right that was “clearly established” when they engaged in the conduct at
issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014). “Qualified immunity shields an
officer from suit when she makes a decision that, even if constitutionally deficient,
reasonably misapprehends the law governing the circumstances she confronted.” Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)).
“This strain of immunity aspires to ‘balance [the] desire to compensate those whose rights
10
In Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011), the Ninth Circuit, when assessing the
second Graham factor in a case involving suicidal behavior, observed that “Graham does not specifically
identify as a relevant factor whether the suspect poses a threat to himself.” Id. at 872 (emphasis in original).
The court assumed proper intervention could include “some reasonable level of force to try to prevent … a
suicidal act,” but also stated that it was “aware of no published cases holding it reasonable to use a
significant amount of force to try to stop someone from attempting suicide.” Id. (emphasis in original).
13
are infringed by state actors with an equally compelling desire to shield public servants
from undue interference with the performance of their duties and from threats of liability
which, though unfounded, may nevertheless be unbearably disruptive.’” Cox v. Hainey,
391 F.3d 25, 29 (1st Cir. 2004) (quoting Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.
1992)).
Defendant Drouin’s assertion of qualified immunity requires the Court to assess:
(1) “whether the facts, taken most favorably to the party opposing summary judgment,
make out a constitutional violation” and (2) “whether the violated right was clearly
established at the time that the offending conduct occurred.” Ford v. Bender, 768 F.3d 15,
23 (1st Cir. 2014). When the Court considers whether the constitutional right was clearly
established at the time, the Court must determine (a) “whether the contours of the right, in
general, were sufficiently clear,” and (b) “whether, under the specific facts of the case, a
reasonable defendant would have understood that he was violating the right.” Id.
The constitutional prohibition against the use of excessive force has long been
clearly established. See, e.g., Morelli, 552 F.3d 12, 23 – 24 (1st Cir. 2009) (describing the
law in this area as “crystal clear”). The qualified immunity analysis, however, requires a
consideration of the particularized facts of the case, not broad general propositions. Hunt,
773 F.3d at 368. Thus, “the relevant question is not whether the Fourth Amendment
generally prohibited excessive force.”
Id.
“[T]he clearly established law must be
‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017). “Such
specificity is especially important in the Fourth Amendment context, where the Court has
recognized that ‘[i]t is sometimes difficult for an officer to determine how the relevant legal
14
doctrine, here excessive force, will apply to the factual situation the officer confronts.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Saucier v. Katz, 533
U.S. 194, 205 (2001)). “To be clearly established, the contours of this right must have been
‘sufficiently definite that any reasonable official in the defendant’s shoes would have
understood that he was violating it.’” Id. (quoting Plumhoff v. Rickard, 134 S. Ct. 2012,
2023 (2014)). “In other words, ‘existing precedent must have placed the ... constitutional
question beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
“[I]munity protects all but the plainly incompetent or those who knowingly violate the
law.” White, 137 S. Ct. at 551 (citation and internal quotation marks omitted).
The issue in this case is whether at the time of the incident, the law was clearly
established such that Defendant Drouin would have understood that she was violating
Plaintiff’s rights when she used deadly force without any warning or directive to Plaintiff,
as Plaintiff was inflicting harm to himself with a knife with other people in the same room,
but where Plaintiff made no verbal threats to or threatening moves toward Defendant
Drouin or the others who were in the room. Decisions of the Supreme Court, circuit courts,
including the First Circuit,11 and this Court, clearly established, before Defendant Drouin’s
encounter with Plaintiff in January 2015, that use of deadly force by a law enforcement
While “‘the salient question ... is whether the state of the law’ at the time of an incident provided ‘fair
warning’ to the defendants ‘that their alleged [conduct] was unconstitutional,’” Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)), Plaintiff is not required to identify
a First Circuit case with the same or similar facts to provide notice to Defendants of Plaintiff’s rights.
McCue v. City of Bangor, Maine, 838 F.3d 55, 64 (1st Cir. 2016) (“We have also looked to the case law of
sister circuits in determining whether a right was clearly established.”); Mlodzinski v. Lewis, 648 F.3d 24,
38 (1st Cir. 2011) (“Even without a First Circuit case presenting the same set of facts, defendants would
have had fair warning that given the circumstances, the force they are alleged to have used was
constitutionally excessive.”).
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officer is reserved for circumstances where a subject presents an immediate threat to the
safety of the officer or others, and where the officer, when feasible, has provided the subject
with a warning or instruction to cease the threatening conduct, but the subject persists in
the conduct.
In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court, assessing the use of
deadly force to stop a person fleeing the scene of a burglary, wrote:
[I]f the suspect threatens the officer with a weapon or there is probable cause
to believe that he has committed a crime involving the infliction of serious
physical harm, deadly force may be used if necessary to prevent escape, and
if, where feasible, some warning has been given.
471 U.S. at 11 – 12 (emphasis supplied).
The Tenth Circuit, when identifying several “non-exclusive” factors relevant to the
assessment of the degree of the threat, reinforced the need for the threat to be immediate,
and the significance of a command, when feasible, to a suspect to drop a weapon before
deadly force is used. See Estate of Larsen ex rel. Surdivan v. Murr, 511 F.3d 1255 (10th
Cir. 2008). The court identified the following factors: “(1) whether the officers ordered
the suspect to drop his weapon, and the suspect’s compliance with police commands; (2)
whether any hostile motions were made with the weapon towards the officers; (3) the
distance separating the officers and the suspect; and (4) the manifest intentions of the
suspect.” Id. at 1260.12 Similarly, the Ninth Circuit determined, “officers may not shoot
12
Relying in part on Larsen, the court in Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015), upheld the
denial of a summary judgment motion based on qualified immunity where the trial court determined that a
law enforcement officer shot an intoxicated individual with mental health issues who had threatened
suicide, was holding a knife by his thigh, made no threatening gestures, and had not refused to drop the
knife because he had not been given sufficient time to drop it.
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to kill unless, at a minimum, the suspect presents an immediate threat to the officer or
others,” and, “whenever practicable, a warning must be given before deadly force is
employed.” Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997) (citing Garner, 471
U.S. at 11 – 12).
First Circuit precedent suggests that whether a verbal warning or instruction was
feasible and given are important considerations even when assessing the reasonableness of
the use of non-deadly, but serious force. In Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008),
the First Circuit affirmed a jury verdict for a plaintiff who was shot with a Taser where the
record could support findings that the plaintiff made no threatening move and did not resist
arrest. Id. at 5, 11. When distinguishing a case, Draper v. Reynolds, 369 F.3d 1270 (11th
Cir. 2004), in which summary judgment was entered in favor of the defendant where a law
enforcement officer used a Taser to subdue the plaintiff, the Court noted that in Draper,
among other factors, the plaintiff repeatedly refused to comply with the officer’s verbal
directives. Parker, 547 F.3d at 11.13
13
First Circuit precedent also instructs that excessive force claims involving persons with mental illness
generally follow the same analysis as claims involving suspects apprehended for criminal conduct. See,
e.g., Davis v. Rennie, 264 F.3d 86, 111 (1st Cir. 2001) (“[T]he state’s duty to protect those it confines
because of mental illness requires that force be used as sparingly as possible.”). Depending on its
assessment of the circumstances, a finder of fact could regard mental illness as a factor that reduces the
governmental interest in applying force. See, e.g., Abdullahi v. City of Madison, 423 F.3d 763, 772 (7th
Cir. 2005); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004); Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003); Ludwig v. Anderson, 54 F.3d 465, 472
(8th Cir. 1995); Herrera v. Las Vegas Metro. Police Dep’t, 298 F. Supp. 2d 1043, 1051 (D. Nev. 2004).
For instance, the Augusta Police Department SOP for Responses to Behavior of Person in Mental Health
Crisis emphasizes as a priority the need “to de-escalate a subject in mental health crisis.” (ECF No. 21-11,
§ VII.E.)
17
A review of relevant case law thus reveals that at the time of the 2015 incident
involving Plaintiff and Defendant Drouin, the contours of the constitutional protection
from the use of excessive force were sufficiently clear such that a reasonable law
enforcement officer would have understood that when a subject displays and uses a knife14
to inflict self-harm in the presence of others, the use of deadly force is reasonable only
when there is an immediate threat of harm to the officer or the others, and only after, if
feasible, the officer provides a warning or instruction to the subject and the subject persists
in threatening conduct. In short, this legal principle was not “at a level of generality so
high that officials [could not] fairly anticipate the legal consequences of specific action.”
Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc).
Here, when viewed most favorably to Plaintiff, the record could support the
following findings: (1) within a few seconds of entering the room in which Plaintiff was
meeting with members of the ACT Team, Defendant Drouin shouted “hey, hey, hey” and
shot Plaintiff three times; (2) as Defendant Drouin approached, the person in the room
closest to Plaintiff backed out of the way, and there was no one between Defendant Drouin
and Plaintiff; (3) prior to discharging her weapon, Defendant Drouin did not instruct
Plaintiff to drop the knife or otherwise warn him of the possible use of deadly force; and
14
The presence of a potentially dangerous weapon, such as a knife, is but a factor in assessing the
immediacy of any threat. This point was reinforced by the Tenth Circuit in Mercado v. City of Orlando,
407 F.3d 1152 (11th Cir. 2005). The court vacated the grant of summary judgment on the issue of qualified
immunity where a law enforcement officer used deadly force (a “Sage Launcher”) against the plaintiff, who
was distraught, holding a knife pointed at his heart, but had not made a threatening move toward police,
was not actively resisting arrest, and arguably did not have time to comply with the police order to drop the
knife.
18
(4) before Defendant Drouin discharged her weapon, Plaintiff made no movement toward
any other person and made no verbal threats to any other person. Given the findings that
are supportable when the record is viewed most favorably to Plaintiff, whether Plaintiff
posed an immediate threat to Defendant Drouin or others, and whether a warning or
instruction to Plaintiff was feasible under the circumstances are material factual issues in
dispute.15 Accordingly, Defendants are not entitled to summary judgment based on
qualified immunity.16
B.
State Law Immunity Doctrines
In addition to his civil rights claim, Plaintiff alleges that Defendant Drouin is liable
in tort (negligence and battery), and that the City of Augusta is vicariously liable for the
harm caused by Defendant Drouin. Defendants argue that state law immunity doctrines
preclude a recovery.
1.
Personal immunity for governmental employees
Defendant Drouin contends that she is immune from Plaintiff’s tort claim under the
Maine Tort Claims Act, 14 M.R.S. § 8111(1)(C), (E). (Motion at 11 – 15.) Because the
To the extent Defendants contend that the “hey, hey, hey” Defendant Drouin yelled at Plaintiff just before
she discharged her weapon constitutes a command to stop, whether the directive was a command to stop
and, if so, whether Plaintiff had the opportunity to stop between the time of Defendant Drouin’s statement
and the discharge of her weapon, are factual issues for the fact finder to decide.
15
16
The facts of this case are in contrast to the facts in Norton v. City of South Portland, 831 F. Supp. 2d 340,
365 – 64 (D. Me. 2011), where this Court determined that qualified immunity applied. In Norton, law
enforcement shot and killed an individual with mental health issues who had threatened suicide, who exited
a home carrying two knives after a four-hour standoff with law enforcement, was approximately 15 to 20
feet from a law enforcement officer, and was continuing to move toward the officer, after having been
instructed to drop the knives. In other words, in Norton, law enforcement were confronted with an
immediate threat to their safety (i.e., subject was coming toward them with two knives in his hands) and a
subject who refused to drop the weapon upon law enforcement’s command to do so.
19
record generates a genuine factual issue as to whether Defendant Drouin applied excessive
force, Defendant Drouin is not entitled to summary judgment under the Maine Tort Claims
Act. Cote v. Town of Millinocket, 901 F. Supp. 2d 200, 248 (D. Me. 2012); Blackstone v.
Quirino, 309 F. Supp. 2d 117, 130 (D. Me. 2004); Richards v. Town of Eliot, 2001 ME
132, ¶ 32, 780 A.2d 281, 292.
2.
Municipal immunity
Municipal immunity is absolute under the Maine Tort Claims Act, subject only to
limited exceptions. 14 M.R.S. §§ 8103, 8104-A, 8116. Based on the undisputed facts,
including the scope of the City of Augusta’s liability insurance coverage,17 none of the
limited exceptions to sovereign immunity applies and the City is entitled to summary
judgment on Plaintiff’s vicarious liability tort claim.
IV.
CONCLUSION
Based on the foregoing analysis, the Court grants in part and denies in part
Defendants’ Motion for Summary Judgment. (ECF No. 23.) The Court grants Defendants’
motion as to Plaintiff’s claim against the City of Augusta (Count IV) and enters judgment
in favor of the City of Augusta. The Court denies Defendants’ motion as to Plaintiff’s
claim of excessive force and Plaintiff’s related tort claims (Counts I – III).
SO ORDERED.
th
Dated this 20 day of April, 2017.
/s/ John C. Nivison
U.S. Magistrate Judge
17
Aff. of William Bridgeo, ECF No. 21-2; Me. Mun. Assoc. Prop. & Cas. Pool Coverage Cert., ECF No.
21-3.
20
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