MCKENNEY v. MANGINO et al

Filing 69

ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT granting 43 Motion for Summary Judgment; granting in part and denying in part 45 Motion for Summary Judgment By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
VICKI MCKENNEY, individually,
and as Next Friend of Stephen
McKenney, and as Personal
Representative of the Estate of
Stephen McKenney,
Plaintiff,
v.
NICHOLAS MANGINO,
CUMBERLAND COUNTY, and
TOWN OF WINDHAM,
Defendants.

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ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Vicki McKenney brings this action against Defendants Nicholas
Mangino, Cumberland County, and the Town of Windham alleging claims arising out
of the fatal shooting of her late husband, Stephen McKenney, by Mangino, a Deputy
Sheriff employed by the Cumberland County Sheriff’s Office. 1 ECF No. 3-2 at 1.
Defendants have moved for summary judgment on all claims. ECF No. 43; ECF No.
45. For the reasons explained below, I grant the Town of Windham’s motion to
dismiss, and grant in part and deny in part Deputy Mangino and Cumberland
County’s motion to dismiss.

1

For the sake of clarity, this opinion will refer to the Plaintiff as “Mrs. McKenney” or “McKenney”
and to her deceased husband as “Stephen.”

I. FACTUAL BACKGROUND
On April 12, 2014, Windham Police Officers James Cook and Seth Fournier
were dispatched to the McKenney residence in Windham, in response to Mrs.
McKenney’s call to the police indicating that her husband was possibly suicidal.
Officers Cook and Fournier were advised by dispatch that Stephen wanted to shoot
himself, that the residence contained multiple firearms that were not locked up, and
that Stephen had become increasingly “physical” or “aggressive” with Mrs.
McKenney.
Officers Cook and Fournier arrived at the McKenney residence at
approximately 6:20 a.m. and parked their cruisers in the driveway. Cumberland
County Sheriff’s Deputy Nicholas Mangino also responded to the residence to serve
as backup to the Windham officers, arriving shortly after Cook and Fournier. Deputy
Mangino had a civilian riding along with him in his cruiser at the time he responded
to the call, though he did not advise the Windham officers of that fact. The civilian
remained in Mangino’s cruiser throughout the incident.
Officers Cook and Fournier met Mrs. McKenney in the driveway and she
informed them that her husband was emotionally disturbed and had “snapped” that
morning after months of dealing with severe back pain. She also told the officers that
the guns were located in a back bedroom, while her husband was in the front room,
and that there was no one else in the house. There are two doors leading into the
house: a front door and a door leading from the house into the garage. The overhead
garage door was open when the officers arrived. The house is part of a condominium
development, and is connected to an adjacent home.
2 

Approximately one minute after arriving at the house and speaking with Mrs.
McKenney, the officers entered the house to make contact with Stephen. Officers
Cook and Fournier entered through the door to the garage, while Deputy Mangino
entered through the front door. Fournier was armed with a Taser, while Cook and
Mangino carried their drawn service pistols. The officers announced their presence
to Stephen by saying “police department” and requested him to “come out.”
Approximately 30 seconds later, Stephen appeared on the far side of the living room
from where the officers were taking cover behind a wall in the front hallway,
approximately 12 or more feet from the officers. Stephen was holding an object in his
right hand, and when asked by the officers what the object was, he replied “.357
Magnum.” The officers told Stephen to put the gun down, and told him that they
wished to get him help. At this point, Officer Fournier holstered his Taser and drew
his handgun, based on his belief that a Taser was not an appropriate response to the
threat posed by Stephen’s firearm. McKenney contends that the Taser would have
been an appropriate response to the threat. Throughout the encounter inside the
house, Officers Cook and Fournier kept their service pistols by their sides at the “low
ready” position, and never aimed their firearms at Stephen. Stephen likewise never
pointed his gun at any of the officers while inside the house.
The officers decided to back out of the house, and Officer Cook told Stephen
that they were “going to go outside” and would call him. The officers left the house
through the door to the garage and met Mrs. McKenney, who was waiting outside.
As the officers left the house, Deputy Mangino headed down the driveway to his

3 

cruiser and advised the others that he was going to get his long gun. Cook directed
Officer Fournier to put Mrs. McKenney in his cruiser and take her away for her
safety. Mrs. McKenney was distraught and in tears. Approximately 10 seconds after
the officers left the house, Officer Fournier was escorting Mrs. McKenney to his
cruiser when he observed Stephen in the doorway leading from the house to the
garage and alerted the other officers to Stephen’s presence. Fournier then put Mrs.
McKenney in his cruiser, backed out of the driveway, and drove to a cul-de-sac at the
end of the street, a few hundred yards from the McKenney residence. From this
location, Fournier was the only officer on the scene who had a view into the
McKenneys’ garage.
At this point, Officer Cook had retreated behind the McKenneys’ house and
Deputy Mangino had taken cover behind his cruiser, which was parked at the end of
the driveway away from the house. Officer Fournier could see Stephen throughout
the incident.

From his position behind his cruiser, Deputy Mangino could see

Stephen at times, but also relied on Fournier to relay information about Stephen’s
location. The civilian in Mangino’s cruiser remained crouched down in the front seat
throughout the incident.

Officer Cook was dependent upon Fournier to relay

information about Stephen’s location and activities. Shortly after the officers left the
house, Sergeant James Boudreau of the Windham Police was dispatched to the scene,
in response to a request from Officer Cook. Cook also informed Fournier that he was
to transport Mrs. McKenney away from the scene as soon as another unit arrived to
replace him.

4 

Approximately two minutes after the officers left the inside of the McKenney
residence, Officer Fournier saw Stephen, who was still holding his handgun, come
out of the house and head in the direction of Officer Cook, who was at the rear of the
building. Fournier radioed to Cook and told him that Stephen was “heading right
toward you.” At this time Officer Cook, who was behind the building, did not know
the exact location of either Deputy Mangino or Stephen, but heard Mangino yell three
times at Stephen to “drop the gun.” The parties agree that Stephen had a vacant
stare and acted as though he had not received or acknowledged the commands to drop
the gun. ECF No. 61 at 12, ¶ 62. For the next two to three minutes, Stephen walked
around in the driveway in the vicinity of Officer Cook’s cruiser and the garage area,
and he entered and exited the house several times. It is disputed whether, as the
Town of Windham claims, this forced Officer Cook to retreat further to the rear of the
building to avoid being seen by Stephen. During this time, Officer Fournier kept
Mangino and Cook apprised of Stephen’s location and activities, including at one
point telling Deputy Mangino to “stay down, he’s looking right at you.” At one point,
Stephen pointed his gun up into the air, and Deputy Mangino asserts that he thought
Stephen was pointing the gun at him. Mangino said he wanted to move his cruiser
from its position on the street in front of the residence, but Fournier advised him to
“hold tight, he’s back at the front of the garage.”
Officer Cook retreated further along the back of the house to the adjacent
street, where he met with Sergeant Boudreau and Sergeant Marc Marion of the
Cumberland County Sheriff’s Office, who arrived at the scene approximately five

5 

minutes after the officers had first exited the house. Their position on the adjacent
street did not afford them a view of Deputy Mangino, Officer Fournier, or Stephen,
so Cook explained where each person was located. Shortly thereafter, Windham
Police Officer Ernest MacVane arrived at the scene, and was directed by Sergeant
Boudreau to block traffic on the adjacent street to prevent any vehicle from accessing
the street where the McKenney house was located.
Officer Fournier continued to apprise the other officers of Stephen’s location
and activities. He also spoke with Mrs. McKenney, who was still in his cruiser, about
the police wanting to make phone contact with Stephen, and conveyed the phone
number she provided to Officer Cook. Approximately one and a half minutes after
Cook met with Sergeants Boudreau and Marion on the adjacent street, Officer
Fournier reported that Stephen was right inside the front of the garage. Thirty
seconds later, Fournier radioed to Deputy Mangino and said “I can’t tell, but he might
be pointing that,” and told Mangino to be careful. Thirty seconds after that, Fournier
observed Stephen walking down the driveway in the direction of Deputy Mangino’s
cruiser, as Mangino continued to crouch on the opposite side of his vehicle and the
civilian continued to crouch in the front seat. Throughout this time, Deputy Mangino
had his rifle aimed at Stephen.
Officer Fournier radioed Deputy Mangino that Stephen was “walking toward
your car right now.” As Stephen was walking down the driveway, he had a vacant
stare and appeared to be “not at home” mentally. ECF No. 61 at 15, ¶ 75. He walked
down the driveway in a nonchalant manner, and held his handgun dangling at his

6 

side. Id. at 15, ¶ 77. Stephen did not raise his gun or point it in the direction of
Mangino’s cruiser; nor did he make any sudden or evasive movements. Id. at 15, ¶¶
78-80. Approximately six minutes had elapsed since Stephen raised the gun above
his head by the garage, and Deputy Mangino thought that Stephen pointed the gun
at him. It had also been approximately six minutes since Deputy Mangino ordered
Stephen three times to drop his gun. ECF No. 61 at 16-17, ¶¶ 86, 88.2
Officer MacVane, who had parked his cruiser on the adjacent street to block
traffic, took his patrol rifle and began walking between houses toward Deputy
Mangino’s cruiser. As he approached, Officer MacVane saw Stephen walking from
his home and down the driveway in the direction of Mangino’s cruiser. MacVane was
approximately 100 feet from Stephen at this time. Because Stephen continued to
walk in the direction of the cruiser, Officer MacVane believed that Stephen was going
to kill Deputy Mangino. McKenney contends that this belief was not reasonable.
When Stephen was approximately halfway down the driveway, Officer MacVane
stopped walking and aimed his patrol rifle at Stephen. At the same time, Deputy
Mangino came around to the front of his vehicle and fired his rifle two times in quick
succession at Stephen, who fell to the ground. The first shot missed Stephen, but the
second shot struck him in the head and killed him. Stephen’s gun remained at his
side at the time he was shot.

2

The Defendants assert that there is evidence that Deputy Mangino gave additional commands to
Stephen to drop his gun. The Defendants concede, however, that this fact is disputed, and recognize
that it is therefore not part of the summary judgment record of undisputed facts. ECF No. 45 at 11
n.7.

7 

To summarize the events leading up to the shooting, after the officers spoke
with Stephen inside and then left the McKenney residence, they first saw Stephen in
the doorway leading to the garage at approximately 6:24 a.m. They observed Stephen
walk in and out of his house and around the driveway for approximately seven and a
half minutes, between 6:24 a.m. and 6:32 a.m. At approximately 6:26 a.m., Deputy
Mangino yelled at Stephen three times and ordered him to drop his gun. A few
seconds later, Mangino observed Stephen raise the gun over his head, and thought
Stephen was pointing the gun at him. Approximately five minutes later, at 6:31 a.m.,
Officer Fournier radioed to Deputy Mangino and said “I can’t tell, but he might be
pointing that.” At 6:31:30 a.m., Stephen began walking down the driveway in the
direction of Deputy Mangino’s cruiser. Deputy Mangino testified that Stephen was
walking nonchalantly, and held his gun dangling down by his side. Stephen did not
make any sudden movements or point the gun in the direction of Mangino’s cruiser.
At 6:31:41 a.m., Deputy Mangino fired two shots at Stephen, hitting him once and
killing him. At the moment he was shot and killed, Stephen was 69 feet away from
Deputy Mangino.
Officer MacVane approached Stephen as he lay on the ground and observed
that he had a firearm in his right hand. MacVane asserts that the gun was cocked
and loaded, but McKenney contends that the gun was not cocked. Stephen was in
lawful possession of his gun at all times leading up to the shooting. Officer MacVane
removed the gun from Stephen’s hand, handcuffed him, and then rolled him over so
he could begin resuscitative efforts, but quickly realized the shooting was fatal.

8 

Approximately ten minutes elapsed between the time the officers first arrived on the
scene, and when Deputy Mangino shot Stephen.
II. LEGAL ANALYSIS
The Complaint3 asserts a total of ten claims against Defendants: (1) violation
of the Fourth Amendment’s prohibition on use of excessive force, under 42 U.S.C. §
1983; (2) violation of the Maine Civil Rights Act, 5 M.R.S.A. § 4682; (3) violation of
the Fourteenth Amendment’s due process guarantee, under § 1983;4 (4) negligence,
based on violation of the duty to protect; (5) violation of the Fourth Amendment for
failure to train law enforcement officers, under § 1983; (6) violation of the Americans
with Disabilities Act;5 (7) assault; (8) intentional infliction of emotional distress; (9)
negligent infliction of emotional distress; and (10) wrongful death under 18-A
M.R.S.A. § 2-804. ECF No. 3-2. Defendants have moved for summary judgment on
all claims. ECF No. 43; ECF No. 45.
A.

Summary Judgment Standard
Summary judgment is appropriate only 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); see Ahmed v. Johnson, 752 F.3d 490, 495 (1st
Cir. 2014). In making that determination, a court must view the evidence in the light

The Plaintiff amended her complaint once in state court before the Defendants removed the case
to federal court. For simplicity’s sake, this opinion refers to the operative First Amended Complaint
as “the Complaint.”
3

McKenney confirmed at oral argument that she is not pressing her Fourteenth Amendment claim
against the Defendants stated in Count III of the Complaint. This claim is therefore waived, and this
opinion will not address it.
4

Plaintiff’s ADA claim is asserted against the Town of Windham and Cumberland County, but not
against Deputy Mangino. ECF No. 39 at 2.
5

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most favorable to the non-moving party. Johnson v. Univ. of P.R., 714 F.3d 48, 52
(1st Cir. 2013). “[A] judge’s function at summary judgment is not to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (citations and
quotations omitted).
Local Rule 56 defines the evidence that this court may consider in deciding
whether genuine issues of material fact exist for purposes of summary judgment.
First, the moving party must file a statement of material facts that it claims are not
in dispute, with each fact presented in a numbered paragraph and supported by a
specific citation to the record. See Loc. R. 56(b). Second, the non-moving party must
submit its own short and concise statement of material facts in which it admits,
denies, or qualifies the facts alleged by the moving party, making sure to reference
each numbered paragraph of the moving party’s statement and to support each denial
or qualification with a specific citation to the record. Loc. R. 56(c). The non-moving
party may also include its own additional statement of facts that it contends are not
in dispute.

Id.

These additional facts must also be presented in a numbered

paragraph and be supported by a specific citation to the record. Id.
Third, the moving party must then submit a reply statement of material facts
in which it admits, denies, or qualifies the non-moving party’s additional facts, if any.
Loc. R. 56(d). The reply statement must reference each numbered paragraph of the
non-moving party’s statement of additional facts and each denial or qualification
must be supported by a specific citation to the record. Id.

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The court may disregard any statement of fact that is not supported by a
specific citation to the record, Loc. R. 56(f), and the court has “no independent duty
to search or consider any part of the record not specifically referenced in the parties’
separate statement of facts.” Id.; see also, e.g., Packgen v. BP Exploration, Inc., 754
F.3d 61, 70 (1st Cir. 2014); Fed. R. Civ. P. 56(e)(2). Properly supported facts that are
contained in a statement of material or additional fact are deemed admitted unless
properly controverted. Loc. R. 56(f).
B.

Claims against the Town of Windham
1. Claims under § 1983 and the Maine Civil Rights Act
McKenney asserts that the Town of Windham’s conduct during the incident

that led to her husband’s death violated the Fourth Amendment to the United States
Constitution, as well as the Maine Civil Rights Act, 5 M.R.S.A. § 4682 et seq. ECF
No. 3-2 at 6-12. Windham asserts that there is no basis for liability on the part of the
Town in the evidentiary record and that it is entitled to summary judgment in its
favor.
As an initial matter, I note that the outcome of McKenney’s claim under the
Maine Civil Rights Act will follow from the disposition of the federal constitutional
claims under 42 U.S.C.A. § 1983. Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007)
(“The disposition of a 42 U.S.C. § 1983 claim also controls a claim under the MCRA.”).
I therefore address the § 1983 claims first.
Count I of McKenney’s Complaint alleges that the Defendants violated
Stephen’s Fourth Amendment rights by using excessive force against him. It is

11 

undisputed that the only physical force applied to Stephen by any Windham officer
occurred after the shooting, when Officer MacVane handcuffed Stephen and removed
the gun from his hand. See ECF No. 51 at 7, ¶¶ 74-75. For liability to attach to
Windham, McKenney must show that one of the Windham officers violated Stephen’s
constitutional rights. See Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002) (“If,
however, the officer has inflicted no constitutional harm, neither the municipality nor
the supervisor can be held liable.”).
Viewed in the light most favorable to the Plaintiff, there is no factual basis in
the record for finding that any of the Windham officers used excessive or
unreasonable force against Stephen. The only force used by a Windham officer was
when Officer MacVane handcuffed Stephen, removed his gun from his hand, and
turned him over to begin resuscitative efforts. ECF No. 51 at 7, ¶ 75. The actions
taken by Officer MacVane do not rise to the level of excessive force required to violate
the Fourth Amendment. See Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d 312,
327 (1st Cir. 2015) (finding no excessive force where officer, pursuant to “standard
police practice,” shoved suspect against wall and handcuffed her).
Based on the foregoing, the Town of Windham is entitled to summary judgment
on Count I of the Complaint.
Count V of the Complaint asserts a failure to train claim against Windham
under the Fourth Amendment. ECF No. 3-2 at 10-12. McKenney contends that
Windham’s failure to adequately train its officers amounted to deliberate indifference
to the rights of the persons with whom the officers came into contact. ECF No. 52 at

12 

8. It is established, however, that “the inadequate training of a police officer cannot
be a basis for municipal liability under section 1983 unless a constitutional injury has
been inflicted by the officer or officers whose training was allegedly inferior.” Calvi,
470 F.3d at 429. As discussed above, the undisputed facts establish that none of the
Windham officers violated Stephen’s constitutional rights. Thus, because the Town
of Windham cannot be liable on a failure-to-train theory, it is entitled to summary
judgment on Count V of the Complaint.
As mentioned above, McKenney’s claim asserted in Count II under the Maine
Civil Rights Act is controlled by the outcome of her § 1983 claims. See Berube, 506
F.3d at 85. Because I conclude that the Town of Windham is entitled to summary
judgment on the § 1983 claims asserted against it, the Town is also entitled to
summary judgment on Count II of the Complaint.
2. Americans with Disabilities Act Claim
Count VI of the Complaint alleges that Windham discriminated against
Stephen and denied him benefits and services due to his status as a disabled
individual. ECF No. 3-2 at 12-13. Windham responds that there is no evidence that
Stephen’s disability played a role in any denial of benefits, and that the emergency
circumstances exception to the duty to accommodate applies in this case. ECF No.
43 at 16-18.
To make out a claim under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12131 et seq., McKenney must show that Stephen was discriminated against
or not provided services “by reason of his disability.” Buchanan v. Maine, 469 F.3d

13 

158, 176 (1st Cir. 2006) (quotation marks omitted); see also Higgins v. Reed, 2012 WL
3150813, at *12 (D. Me. Aug. 2, 2012) (granting summary judgment where plaintiff
failed to show that challenged actions were motivated by animus on account of
plaintiff’s mental illness). McKenney does not point to any specific facts in the record
that suggest that the Windham officers treated Stephen as they did because he was
disabled. See ECF No. 52 at 8-10; cf. Vincent v. Town of Scarborough, 2003 WL
22757940, at *24 (D. Me. Nov. 20, 2003) (“While one could speculate that the standoff
might have been resolved differently [had officers taken further steps to accommodate
suspect’s disability], one can only reasonably conclude that the officers trained their
weapons on [the suspect] because he was carrying a high-powered rifle in a crowded
shopping plaza—not because of misperceptions stemming from his disability.”).
Moreover, any duty the officers might have had to accommodate Stephen’s
disability did not arise until after the emergency the officers faced had ended. See
Buchanan ex rel. Estate of Buchanan v. Maine, 417 F. Supp. 2d 45, 73 (D. Me. 2006)
(“[T]he duty to reasonably accommodate does not come into play until the area is
secure and there is no threat to human safety”). The area in question was not secure
in this case, as Stephen was carrying a gun and had ignored commands to drop his
weapon. Therefore, a duty to accommodate Stephen’s disability did not arise before
he was fatally shot.
For the foregoing reasons, the Town of Windham is entitled to summary
judgment on Count VI of the Complaint.

14 

3. State Law Tort Claims
Counts IV and VII to X of the Complaint assert state law tort claims, including
negligence, assault, intentional infliction of emotional distress, negligent infliction of
emotional distress, and wrongful death. Windham asserts that it is immune from all
of these claims due to the protections of the Maine Tort Claims Act, 14 M.R.S.A. §
8103. ECF No. 43 at 19.
The Maine Tort Claims Act provides that “all governmental entities shall be
immune from suit on any and all tort claims seeking recovery of damages.” 14
M.R.S.A. § 8103 (2016). “Governmental entities” are defined by the statute to include
political subdivisions, such as cities and towns. 14 M.R.S.A. § 8102(3) (2016). The
Maine Tort Claims Act contains a limited number of exceptions to immunity, which
are to be “strictly construed.” New Orleans Tanker Corp. v. Dep’t of Transp., 1999
ME 67, ¶ 5, 728 A.2d 673. These exceptions are for torts related to: (1) the use of
vehicles, machinery, and equipment; (2) public buildings; (3) discharge of pollutants;
and (4) road construction and street cleaning or repair. 14 M.R.S.A. § 8104-A(1)-(4)
(2016). McKenney does not explain how the claims she asserts fit within any of the
exceptions to immunity, and the record does not provide a basis for inferring that any
exception applies. 6 Windham also has not waived its tort immunity through the
purchase of liability insurance. Windham is a member of the Maine Municipal

Although Officer Fournier used a car to transport Mrs. McKenney away from the scene prior to her
husband’s shooting, such incidental use of a vehicle does not implicate the vehicle exception to
immunity under 14 M.R.S.A. § 8104-A(1). See Day’s Auto Body, Inc. v. Town of Medway, 2016 ME 121,
¶ 9, 145 A.3d 1030 (“we have made clear that the mere fact that a vehicle or piece of equipment or
machinery is involved in the conduct that allegedly caused harm does not, in itself, implicate the
exception to immunity”).
6

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Association Property and Casualty Pool, and its liability insurance coverage is limited
to areas where it is not immune from tort liability. ECF No. 43 at 21-22. The parties
agree that this insurance does not provide coverage for the instant suit. ECF No. 51
at 7, ¶ 71. Windham’s immunity under the Maine Tort Claims Act is therefore
preserved. See Doucette v. City of Lewiston, 1997 ME 157, ¶ 10, 697 A.2d 1292. The
Town of Windham is therefore entitled to summary judgment on Counts IV and VII
to X of the Complaint.
C.

Claims against Deputy Nicholas Mangino
1. Claims Under § 1983 and the Maine Civil Rights Act
As discussed above with respect to the claims against the Town of Windham,

the outcome of McKenney’s Maine Civil Rights Act claim, asserted in Count II of the
Complaint, will be determined by the disposition of her claims asserted in Count I
under § 1983.7 See Berube, 506 F.3d at 85.
Count I alleges that Deputy Mangino violated Stephen’s rights under the
Fourth Amendment by using excessive force against him.

ECF No. 3-2 at 6-7.

Mangino argues that he is entitled to qualified immunity on this claim. ECF No. 45
at 5.
A law enforcement officer is entitled to qualified immunity from claims brought
under § 1983 unless the plaintiff can show: (1) that the officer violated the plaintiff’s
constitutional rights; and (2) “that these rights were so clearly established that a

Count V of the Complaint, which asserts a claim for failure to train, does not, by its terms, apply
to Deputy Mangino. Count III, which asserts a claim under the Fourteenth Amendment’s due process
guarantee, has been waived.
7

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reasonable officer should have known how they applied to the situation at hand.”
Belsito Commc’ns, Inc. v. Decker, 845 F.3d 13, 23 (1st Cir. 2016).

Courts have

discretion “in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236 (2009). Deputy Mangino focuses his argument
on the second, “clearly established” prong. ECF No. 45 at 7-8. The clearly established
prong itself encompasses two questions: (1) whether the contours of the right were
sufficiently clear; and (2) whether a reasonable defendant, acting under the specific
facts of the case, would have understood that he was violating the right. Hunt v.
Massi, 773 F.3d 361, 368 (1st Cir. 2014). The Supreme Court recently stated that “it
is again necessary to reiterate the longstanding principle that clearly established law
should not be defined at a high level of generality.” White v. Pauly, 137 S. Ct. 548,
552 (2017) (quotation omitted).

Instead, the “clearly established law must be

‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). Furthermore, courts are only to consider facts that were “knowable
to the defendant officers.” Id. at 550.
Thus, the question presented here is whether a reasonable officer in Deputy
Mangino’s position would have understood that it violated the Fourth Amendment to
use deadly force against an apparently disturbed and suicidal individual who was
walking in the direction of the officer while carrying a loaded gun dangling at his side,
was approximately 70 feet away from the officer, had been warned approximately six
minutes earlier to drop his gun, and who the officer believed had briefly pointed his

17 

gun at the officer approximately six minutes earlier. To answer this question, it is
necessary to survey the case law and determine the contours of Stephen’s Fourth
Amendment right to be free from the excessive use of force. Clearly establishing the
existence of the right does “not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question beyond debate.” Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011); see also Pauly, 137 S. Ct. at 551.
Deputy Mangino asserted at oral argument that the Supreme Court’s recent
decision in Pauly stands for the proposition that in order to demonstrate that the law
was “clearly established,” a plaintiff must identify a published opinion addressing
nearly identical facts that concludes that an officer violated the Constitution. In
Pauly, the Supreme Court stated:
The panel majority [of the court below] misunderstood the “clearly
established” analysis: It failed to identify a case where an officer acting
under similar circumstances as Officer White was held to have violated
the Fourth Amendment. Instead, the majority relied on Graham,
Garner, and their Court of Appeals progeny, which—as noted above—
lay out excessive-force principles at only a general level. Of course,
general statements of the law are not inherently incapable of giving fair
and clear warning to officers, but in the light of pre-existing law the
unlawfulness must be apparent. For that reason, we have held that
Garner and Graham do not by themselves create clearly established law
outside an obvious case.
This is not a case where it is obvious that there was a violation of clearly
established law under Garner and Graham. Of note, the majority did
not conclude that White’s conduct—such as his failure to shout a
warning—constituted a run-of-the-mill Fourth Amendment violation.
Indeed, it recognized that this case presents a unique set of facts and
circumstances in light of White’s late arrival on the scene. This alone
should have been an important indication to the majority that White’s
conduct did not violate a “clearly established” right. Clearly established
18 

federal law does not prohibit a reasonable officer who arrives late to an
ongoing police action in circumstances like this from assuming that
proper procedures, such as officer identification, have already been
followed.
Pauly, 137 S. Ct. at 552 (quotations and citations omitted). The Supreme Court
faulted the lower court for failing to identify a case with similar factual circumstances,
but did so in the context of discussing the “unique set of facts and circumstances”
presented by the case. Id. Because Officer White’s conduct did not amount to a “runof-the-mill” constitutional violation, a case with similar facts would be required to put
the officer on notice that his conduct violated clearly established law. Id. Moreover,
the “similar circumstances” language used by the Supreme Court does not support
Mangino’s assertion that a case with “nearly identical” facts is required. According
to Merriam-Webster, “similar” means “having characteristics in common.” Similar,
Merriam-Webster

Dictionary

(online

edition

2017),

https://www.merriam-

webster.com/dictionary/similar. The Oxford English Dictionary defines “similar” as
“[h]aving a marked resemblance or likeness; of a like nature or kind.” Similar, Oxford
English Dictionary (online edition 2017), http://www.oed.com/view/Entry/179
873?redirectedFrom=similar#eid.

It is possible for a case to analyze similar

circumstances without presenting a nearly identical factual scenario. And cases
analyzing similar circumstances can clearly establish a right even without addressing
a nearly identical factual scenario. Indeed, the Supreme Court gave no indication
that its decision in Pauly was intended to repudiate the proposition that “officials can
still be on notice that their conduct violates established law even in novel factual
circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
19 

As a practical matter, the standard advanced by Deputy Mangino fails to
account for the reality that the factual circumstances of each case are, by their nature,
unique, and two cases seldom involve nearly identical facts. Courts should therefore
look to cases that analyze similar circumstances, such as whether a suspect is armed,
the suspect’s conduct and proximity to the officer, and warnings given by the officer,
to determine whether a reasonable officer would be on notice that his or her actions
in a particular factual scenario would fall outside the bounds of the Constitution. A
case presenting a nearly identical alignment of facts is not required so long as the
existing cases would enable an officer, as a matter of reason and common sense, to
understand that his or her conduct in a specific situation crossed the constitutional
line. Accordingly, I turn to consider the relevant precedent.
a. Case Law
In Tennessee v. Garner, 471 U.S. 1, 11 (1985), the Supreme Court held that the
use of deadly force was constitutionally unreasonable where the suspect poses no
immediate threat to officers or others. See also Estate of Bennett v. Wainwright, 548
F.3d 155, 175 (1st Cir. 2008) (noting deadly force only justified in cases where “an
individual posed a threat of serious physical harm either to the officer or others”)
(internal quotations omitted). Starting from this baseline, the question becomes
whether a reasonable officer would have understood that the circumstances facing
Deputy Mangino did not justify the use of deadly force, such that the use of that force
was unconstitutional. The application of Garner’s general rule to specific factual
situations by the courts helps to illuminate this inquiry.

20 

In White v. Pauly, the Supreme Court held that an officer was entitled to
qualified immunity after shooting the plaintiff’s decedent, Pauly. 137 S. Ct. at 552.
Two officers responded to Pauly’s house late one evening following a report that
Pauly’s brother had been engaged in a road rage incident and was intoxicated. Id. at
549. The officers demanded that Pauly and his brother come outside, but failed to
identify themselves as police officers. Id. at 550. The two men instead armed
themselves, and shouted “[w]e have guns.” Id. A third officer, who was not aware
that the men had not been told that they were confronting police officers, arrived on
the scene at the moment when one of the men yelled that they had guns, and took
shelter behind a stone wall. Id. A few seconds later, Pauly’s brother stepped out the
back door of the house and fired two shotgun blasts, while screaming loudly. Id. A
few seconds after that, Pauly opened a front window and pointed a handgun in the
direction of the third officer. Id. One of the first officers to arrive shot at Pauly but
missed, and then the third officer shot and killed Pauly. Id. The Court held that the
third officer’s conduct did not violate clearly established law, despite his failure to
shout a warning before using deadly force, in light of the “unique” circumstances
surrounding the officer’s late arrival on the scene. Id. at 552. The Court went on to
say that clearly established law does not prohibit a reasonable officer who arrives late
to an ongoing police action from assuming that proper procedures were followed
before his arrival. Id. The Court expressed no opinion on whether the other two
officers on the scene were entitled to qualified immunity. Id. at 552-53.

21 

The First Circuit held that officers who used deadly force against the plaintiff
in Berube v. Conley were entitled to qualified immunity. 506 F.3d at 85. The plaintiff
in that case, Berube, attempted to commit suicide while parked in his truck in a
vacant lot. Id. at 81. After being interrupted, he drove to the local police station and
began smashing the windows of police cruisers with a large hammer, while yelling
and screaming. Id. A female officer confronted Berube and yelled at him to put the
hammer down, an order which he ignored. Id. Believing that Berube was about to
attack her with the hammer, the officer fired her gun at him until he fell to the ground.
Id. At the time she fired the shots, Berube was approximately ten feet from her, and
had the hammer raised. Id. Two other officers, hearing the first officer’s yell and the
gunshots, arrived on the scene. Id. They did not know which person had fired the
shots. Id. Berube was lying on the ground with his back to the officers, his hands
not visible. Id. The officers ordered him to stay down and show his hands, but Berube
instead rolled toward them and attempted to rise, still holding the hammer. Id. The
officers thought that the metallic object they saw in his hands was a gun, and that
Berube was positioning himself to fire at them. Id. The officers ordered him again
to stop moving, and when he did not comply, they fired on him until he stopped trying
to get up. Id. The incident took place in the dark on a rainy night, and approximately
ten seconds elapsed between when the first officer called for help and when the
officers stopped firing. Id. The court determined that the officers were entitled to
qualified immunity because their actions were reasonable given their need to “mak[e]
a split-second judgment on a rainy night” in response to the “tense and uncertain

22 

situation” and the need to “neutralize the threat they perceived from Berube.” Id. at
85.
In Roy v. Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994),
officers were determined to be entitled to qualified immunity following the shooting
of a man armed with two knives. At 9:00 p.m., two officers were sent to investigate a
domestic violence report at the home of the plaintiff, Roy. Id. at 693. Roy’s wife
advised the officers when they arrived that Roy had been drinking and was armed
with two knives which he threatened to use against any police officer who approached
him. Id. A third officer arrived on the scene intending to serve Roy with a summons
stemming from an unrelated complaint by another woman who Roy had struck earlier
in the day. Id. When the third officer attempted to serve the summons and advise
Roy of his Miranda rights, Roy became upset, said “I’ll show you,” and went into his
home and retrieved two steak knives. Id. The officers drew their weapons and
ordered Roy to put down the knives, but Roy continued to advance on them with the
knives in his hands while flailing his arms. Id. The officers retreated, attempting to
distract Roy and repeating their warnings that he drop the knives. Id. Roy then
made a “kicking-lunging motion” toward two of the officers, one of whom shot him
twice, seriously injuring him. Id.
The court found that the officer’s decision to shoot Roy rather than retreat
further or use non-lethal means to subdue him, while possibly “mistaken” or “wrong,”
was nonetheless constitutional under the qualified immunity doctrine. Id. at 696.
The court noted that the officers had good reasons for thinking Roy capable of assault;

23 

in addition to his attempt to lunge at the officers with the knives, Roy had been
implicated in two separate assaults that day, and his wife had warned the officers
that he had threatened to use his knives against the police. Id. at 693, 696.
In Partlow v. Stadler, 774 F.3d 497, 503 (8th Cir. 2014), a divided panel of the
Eighth Circuit held that officers were entitled to qualified immunity after shooting
and severely injuring the plaintiff, Partlow. At the end of a night of drinking, Partlow
locked himself in his apartment with a shotgun, having decided to end his life. Id. at
499. His aunt contacted the police, who responded to the scene and positioned
themselves outside the apartment building. Id. at 500. As the officers prepared to
make contact with Partlow, he came out of the front door of the building, carrying the
shotgun. Id. The officers yelled at him to drop the gun. Id. In response, Partlow
made a quick motion with the gun, which all four officers interpreted to be Partlow
raising the gun and aiming it at the officers. Id. The officers opened fire, shooting
Partlow multiple times. Id. Partlow and a witness claimed that he was attempting
to put the gun down in response to the order from the officers when they opened fire.
Id. The court held that even if the officers were mistaken about Partlow’s intention
when he quickly moved the gun, any such mistake was objectively reasonable in light
of the circumstances, including the fact that “[m]ere seconds” had passed between the
moment Partlow “forcefully pushed open the door” and the moment the officers
believed he aimed the gun at them. Id. at 502-503.
In Weinmann v. McClone, 787 F.3d 444, 450 (7th Cir. 2015), the Seventh
Circuit ruled that a police officer was not entitled to qualified immunity following the

24 

shooting of the plaintiff, Weinmann.

Following an argument with his wife,

Weinmann went to his garage, drank half a bottle of vodka, and threatened to kill
himself with a shotgun. Id. at 446. His wife called the police, and a deputy sheriff
responded to the call. Id. The officer, who had been told that Weinmann had access
to a long gun, looked in through the windows of the garage, but did not see Weinmann.
Id. He then knocked on the door to the garage, but received no answer. Id. The
officer did not try to speak with Weinmann, but instead kicked in the door and
entered the garage. Id. According to Weinmann, he was sitting in a lawn chair with
the shotgun lying across his lap. Id. at 447. The officer contended that he perceived
the shotgun as being pointed in his direction. Id. The officer then opened fire on
Weinmann, hitting him four times. Id. The court rejected the officer’s argument that
he had an objectively reasonable belief that he was in imminent danger, holding that
any such belief on the officer’s part was unreasonable under the circumstances. Id.
at 449. The court further held that a suicidal person’s right to be free from the use of
deadly force unless they threaten to harm others was clearly established by existing
precedent. Id. at 451.
In Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005), the
Eleventh Circuit held that an officer was not entitled to qualified immunity following
the use of deadly force against the plaintiff, Mercado. Mercado became suicidal after
an argument with his wife, tied a telephone cord around his neck, and cut himself
with a kitchen knife. Id. at 1154. His wife called the police, and later told the two
officers who responded to the apartment that Mercado had a knife. Id. The officers

25 

attempted to talk to Mercado through the door to the apartment, but after twenty
minutes entered the apartment with Mercado’s wife’s permission. Id. Mercado was
sitting on the floor, holding the knife. Id. The officers ordered Mercado to drop the
knife at least two times, in both English and Spanish, but did not warn him that they
would use force if he refused to drop the knife. Id. Less than a minute after Mercado
ignored the order to drop the knife, one of the officers fired a “less-lethal”
polyurethane baton launcher at Mercado’s head, a use of force that the court deemed
to be deadly. Id. at 1155, 1160. Mercado suffered serious head injuries as a result.
Id. at 1155.

The court determined that the officer’s use of deadly force was

unconstitutional and “violated the clearly established principle that deadly force
cannot be used in non-deadly situations.” Id. at 1160. The court also held that the
use of deadly force in this situation was so obviously unlawful that the constitutional
violation should have been obvious to the officer, notwithstanding a lack of case law.
Id.
In Cooper v. Sheehan, 735 F.3d 153, 160 (4th Cir. 2013), the Fourth Circuit
held that officers were not entitled to qualified immunity following the shooting of
the plaintiff, Cooper. Cooper was at home with his cousin late one evening, and after
a long afternoon of drinking and using drugs, the two men got into a heated argument.
Id. at 155. A neighbor called the police, and two officers arrived at the house around
11:30 p.m. Id. The officers did not have any information about whether Cooper was
armed or otherwise dangerous. Id. They arrived at the house without engaging their
sirens, and saw Cooper’s cousin, who had been standing on the back porch, enter the

26 

home. Id. They approached the home on foot, and heard an argument inside. Id.
One of the officers tapped on a window with his flashlight, but did not identify himself
as a police officer. Id. In response to the tap on the window, Cooper uttered an
obscenity and peered out the back door, but saw nothing. Id. Cooper called out for
anyone in the yard to identify themselves, but the officers did not respond. Id. The
officers had approached the yard behind the house, and were advancing toward the
porch when Cooper came out the back door carrying a shotgun, which was pointed
toward the ground. Id. When the officers saw Cooper with the gun, they opened fire
on him, without giving any warning. Id. at 156. The officers claimed that Cooper
burst out of the door with the gun raised and fired a shot, but the court accepted
Cooper’s version of the events for purposes of resolving the qualified immunity
question. Id. at 156 n.4. The court held that the officers, by firing on Cooper without
warning while his gun was pointed at the ground, had violated his clearly established
“right to be free from deadly force when posing no threat.” Id. at 160. The court
stated that “the mere possession of a firearm by a suspect is not enough to permit the
use of deadly force,” id. at 159, but also noted that “an armed suspect need not engage
in some specific action—such as pointing, aiming, or firing his weapon—to pose a
threat,” id. at 159 n.9. The court also found it significant that the officers never
identified themselves, and that no reasonable officer could have believed that Cooper
was aware the police were present when he stepped outside with his gun. Id. at 15960.

27 

In Glenn v. Washington Cty., 673 F.3d 864, 878 (9th Cir. 2011), the Ninth
Circuit reversed a grant of summary judgment in favor of officers who shot and killed
the plaintiff’s decedent, Glenn, holding that the officers’ use of force had violated the
Constitution, though the court did not reach the “clearly established” prong of the
qualified immunity analysis. Glenn, an 18-year-old male, returned home late one
night from a football game, obviously intoxicated and agitated. Id. at 867. After
getting into an argument with his parents, Glenn became violent, damaging property
in the house and the driveway. Id. Glenn then took out a knife and held it to his own
neck, threatening to kill himself. Id. His parents called the police, informing them
that Glenn was very drunk and threatening to kill himself with a knife. Id. The first
officer to arrive approached Glenn, who was standing in the driveway near his
parents and a friend, and aimed his gun at him. Id. at 868. Glenn was not acting
violently, but was standing still by the garage with his knife held to his own neck. Id.
The officer ordered Glenn to “drop the knife or I’m going to kill you,” but the court
noted that Glenn may not have heard or understood the command due to his
intoxication and the fact that many people on the scene were yelling at once. Id. A
second officer arrived on the scene and likewise ordered Glenn to drop his knife, while
aiming a gun at him. Id. The officers also ordered Glenn’s parents and friend to get
away from Glenn and either get behind the police or go into the house. Id. at 868869. A third officer arrived with a beanbag gun, a “less-lethal” weapon consisting of
a shotgun loaded with lead shot contained in small cloth sacks that are capable of
causing death or serious injury if they hit a sensitive area, and one of the other officers

28 

directed him to fire the beanbags at Glenn. Id. at 869, 871. When Glenn was hit with
the beanbag rounds, he tried to escape and take cover by moving in the direction of
the house, and the other two officers opened fire with their semiautomatic weapons,
hitting Glenn eight times and killing him.

Id.

The court rejected the officers’

argument that their use of force was justified by an objectively reasonable belief that
Glenn posed an immediate threat to his parents, who were inside the house. Id. at
879. The court held that the officers’ use of force was unreasonable because of the
lack of evidence that Glenn posed a threat to anyone but himself at the time he was
shot. Id. Despite the fact that Glenn had a weapon that he refused to drop, the court
held that it was not reasonable to think he posed a threat to the officers or any
bystanders because he had not made any threatening statements or movements. Id.
at 875. The court also found the officers’ response unreasonable in light of the fact
that Glenn was clearly emotionally disturbed. Id. at 875-76.
b. Analysis Regarding Deputy Mangino
In light of the case law described above, a reasonable officer should have
understood that using deadly force against Stephen in the particular circumstances
presented by this case would violate the Fourth Amendment. Based on Stephen’s
words and actions, it was not reasonable to believe that he posed an immediate threat
to the safety of the officer or others at the time he was shot. Compare Weinmann,
787 F.3d at 447 (force not justified where plaintiff was holding shotgun across his lap)
with Roy, 42 F.3d at 693 (force justified where plaintiff verbally threatened officers
and lunged at them with knives). Stephen was walking nonchalantly down the

29 

driveway with his gun dangling by his side. Stephen never made any threats to the
officers, and although Deputy Mangino believed that Stephen had briefly pointed his
gun at him earlier, Stephen did not point his gun at Deputy Mangino or any of the
officers in the minutes immediately preceding the shooting.

Crediting Deputy

Mangino’s assertion that he reasonably believed Stephen had pointed his gun at him
when Stephen was standing in front of the garage, that fact would not justify the use
of deadly force approximately six minutes later. See Ellis v. Wynalda, 999 F.2d 243,
247 (7th Cir. 1993) (noting that an officer who is faced with a threat that may justify
use of deadly force “does not retain the right to shoot at any time thereafter”).
Furthermore, Stephen was approximately 69 feet away from Deputy Mangino’s
cruiser at the time he was shot.

The lack of close physical proximity further

undermines the immediacy of the perceived threat posed by Stephen. Compare
Berube, 506 F.3d at 81, 85 (use of force reasonable where plaintiff was “charging” at
officer from ten feet away).
In addition, Deputy Mangino was not forced to make a split-second decision on
less than perfect information in a rapidly changing situation at the time he shot
Stephen, ECF No. 61 at 20, ¶ 110, unlike several of the officers that were found to be
entitled to qualified immunity. See, e.g., Pauly, 137 S. Ct. at 550; Berube, 506 F.3d
at 83-84; Partlow, 774 F.3d at 502. This incident took place in the morning on a
sunny day.

The officers had briefly spoken with Stephen inside his home, and

observed him walk around his driveway and enter and leave his house numerous
times over the course of approximately seven minutes leading up to the shooting.

30 

Unlike the officers in Berube, who were confronting an unknown situation on a dark
and rainy night, and were forced to act within seconds without complete information
about whether the plaintiff was armed and posing an immediate threat, see Berube,
506 F.3d at 83-84, Deputy Mangino had ample opportunity to observe Stephen’s
actions and movements over the course of several minutes, and acted with knowledge
of all of the relevant circumstances.
Furthermore, as he walked down the driveway in the direction of Deputy
Mangino, Stephen was not warned that he would face deadly force if he failed to drop
his gun. While Stephen was told by the officers to drop his gun inside the house, and
Mangino yelled three times at Stephen to drop his gun when Stephen was standing
outside by the garage, the last order was given approximately six minutes prior to
the use of force. The Cumberland County Sheriff’s Office’s Standard Operating
Procedure on the use of deadly force states that “[i]f feasible, the deputy must give
some warning prior to the use of deadly force.” ECF No. 41-54 at 5. Yet at no time
did the officers warn Stephen that they would use force if he did not comply with their
orders. See Mercado, 407 F.3d at 1154 (noting that officers failed to warn plaintiff
that they would use force if he did not drop weapon, in context of finding use of force
unreasonable); see also Irish v. Maine, 849 F.3d 521, 527-28 (1st Cir. 2017)
(emphasizing the importance of police protocols and standard practices in evaluating
whether an officer is entitled to qualified immunity).
Stephen’s apparent emotional and mental distress is also a factor that
militates against the reasonableness of Deputy Mangino’s use of force. See Glenn,

31 

673 F.3d at 875-76 (noting that government’s interest in using force is diminished
when dealing with a mentally ill individual). Mangino knew that Stephen was
suicidal, Mrs. McKenney had informed the officers that Stephen had “snapped” after
months of dealing with back pain, and the officers acknowledge that Stephen
appeared to be “not at home mentally.” See ECF No. 61 at 15, ¶ 75. Deputy Mangino
also acknowledges that when he had yelled at Stephen to drop his gun, Stephen had
a vacant stare, “and it was like he was not receiving Mangino’s message.” ECF No.
61 at 12, ¶ 62; see Glenn, 673 F.3d at 875 (finding significant the fact that plaintiff’s
decedent may not have heard or understood command to drop weapon).
Finally, Deputy Mangino’s use of deadly force was unreasonably precipitous
when viewed in context with the officers’ prior attempts to gain Stephen’s compliance.
Deputy Mangino yelled three times at Stephen to drop his gun as Stephen stood by
the garage. Over the course of the next six minutes, no attempts were made, verbally
or otherwise, to persuade Stephen to drop his gun.

There is no Constitutional

requirement that the police use the least intrusive means available to respond to a
situation, but the availability and feasibility of non-lethal force options is a factor
that courts consider in assessing the reasonableness of a use of deadly force. Cf. Roy,
42 F.3d at 696; Glenn, 673 F.3d at 876.

Here, the fact that Deputy Mangino

progressed from a verbal command shouted from a distance to the use of deadly force
six minutes later, without any intervening attempt to gain Stephen’s compliance,
militates against finding that his use of deadly force was reasonable.

32 

The established case law discussed above demonstrates that Stephen had a
right to be free from the use of deadly force at the time he was shot by Deputy
Mangino. As Stephen walked down his driveway, holding his gun down at his side,
he did not present a sufficiently serious and immediate threat to justify the use of
deadly force. He had made no threats or threatening movements, was not pointing
his gun at anyone, was approximately 69 feet from an officer crouched behind his
cruiser, and did not fail to heed any warnings or orders immediately before the
shooting. Viewing the summary judgment record in the light most favorable to
McKenney, Stephen’s clearly established rights under the Fourth Amendment were
violated.
This conclusion does not diminish the danger associated with the situation
confronting Deputy Mangino. Stephen appeared mentally unstable and was carrying
a firearm that he had refused to drop. On this record, there is no question that the
potential threat posed by Stephen was serious.

At the time Stephen was shot,

however, that threat was not immediate. The clearly established law on this point is
such that a reasonable officer would have understood that the threat posed by
Stephen did not justify deadly force.

Deputy Mangino’s subjective belief to the

contrary does not alter this analysis. See Weinmann, 787 F.3d at 449 (“It does not
matter for purposes of the Fourth Amendment that [the officer] subjectively believed
that his life was in danger. The test is an objective one, and taking the facts as [the
plaintiff] presents them, it is not met.”). Deputy Mangino is therefore not entitled to
qualified immunity.

33 

Based on the foregoing, Deputy Mangino is not entitled to summary judgment
on Count I of the Complaint.

Accordingly, he is also not entitled to summary

judgment on Count II, which alleges a violation of the Maine Civil Rights Act.
2. State Law Tort Claims
Deputy Mangino argues that he is entitled to discretionary function and
intentional act immunity from McKenney’s state law tort claims (Counts IV and VII
to X) under the Maine Tort Claims Act. ECF No. 45 at 13-14. A law enforcement
officer’s use of force is a discretionary act, but immunity under the Maine Tort Claims
Act is inapplicable to the extent that an officer’s conduct is so egregious that it exceeds
the scope of his or her authority. Steeves v. City of Rockland, 600 F. Supp. 2d 143,
183 (D. Me. 2009). “The Law Court has clarified that the standard for deciding
whether an officer accused of use of excessive force is entitled to MTCA immunity is
the same as that for analyzing whether he or she is entitled to qualified immunity
with respect to a parallel federal Fourth Amendment claim.” Id. (citing Richards v.
Town of Eliot, 2001 ME 132, ¶ 32, 780 A.2d 281). Therefore, because Deputy Mangino
is not entitled to summary judgment based on qualified immunity from McKenney’s
Fourth Amendment claims, he is also not entitled to immunity from her state law
claims under the Maine Tort Claims Act.
D.

Claims against Cumberland County
1. Claims under § 1983 and the Maine Civil Rights Act
Count I, which alleges excessive force in violation of the Fourth Amendment,

does not apply to Cumberland County. A municipality is not vicariously liable for its

34 

employees’ actions; it can only be held responsible for its own illegal acts. Connick v.
Thompson, 563 U.S. 51, 60 (2011). McKenney does not argue that Cumberland
County itself somehow used excessive force against Stephen. See ECF No. 50 at 2122. Therefore, Cumberland County is entitled to summary judgment on Count I of
the Complaint.
Count II asserts a violation of the Maine Civil Rights Act. The outcome of this
claim is governed by the disposition of McKenney’s claims under § 1983, and therefore
will be determined by the viability of her federal claims. See Berube, 506 F.3d at 85.
As noted earlier, Count III, which alleges a violation of the Fourteenth
Amendment, has been waived by the Plaintiff and summary judgment will therefore
be granted in favor of Cumberland County.
Count V alleges a violation of the Fourth Amendment under § 1983 for failure
to train police officers.

Cumberland County asserts that McKenney must

demonstrate a pattern of similar past violations in order to sustain a failure-to-train
claim. ECF No. 45 at 20; ECF No. 60 at 9 n.7. But this assertion is contradicted by
the precedent Cumberland County relies on. See Thompson, 563 U.S. at 63-64 (noting
that a single incident may be enough to support liability where that incident is an
obvious consequence of a failure to train). Indeed, the hypothetical situation posited
by the Court in Thompson as an example where a single incident could support
liability for a failure to train involved a city arming its police officers but failing to
properly train them regarding the constitutional limitations on the use of deadly force.
Id.

35 

In order to impose § 1983 liability on a municipality, a plaintiff must show that
the municipality’s deliberate conduct was the moving force behind a constitutional
violation. Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997).
As noted above, liability cannot be imposed on a municipality under a respondeat
superior theory. Id. at 403. To be successful, therefore, a claim that a municipality
has violated the Constitution through its failure to train its employees requires a
showing that the failure to provide training demonstrated “deliberate indifference to
the rights of persons with whom the untrained employees come into contact.”
Thompson, 563 U.S. at 61 (quotation omitted). Deliberate indifference is a “stringent
standard of fault,” which requires proof that the municipality disregarded a known
or obvious consequence of its actions. Id.
Here, McKenney argues that Deputy Mangino’s “action beats reaction”
training, his training to “stop and eliminate the threat,” and his alleged lack of
training on dealing with suicidal individuals evinced a deliberate indifference on the
part of Cumberland County because it created an obvious risk that Deputy Mangino
would violate a citizen’s Fourth Amendment rights. ECF No. 50 at 21. McKenney
also suggests that Cumberland County’s custom of allowing deputies to decide for
themselves whether to bring civilian ride-alongs to a potentially dangerous scene
contributed to Deputy Mangino’s decision to shoot Stephen. Id. at 21-22.
As an initial matter, the record does not support McKenney’s assertion that
Deputy Mangino did not have training on dealing with suicidal individuals. In his
deposition testimony, Mangino stated that he had received crisis intervention

36 

training, which included training on how to handle suicidal individuals. ECF No. 4135 at 61-62, 235:10-236:18.

While Deputy Mangino apparently did not follow

Cumberland County’s Sheriff’s Office policy that a “CIT deputy,” if available, be called
in to all situations involving subjects suspected to be mentally ill, ECF No. 61 at 26,
¶ 137, Deputy Mangino’s failure to follow a policy that Cumberland County had in
place cannot be a basis for liability on the part of the County, see City of Canton, Ohio
v. Harris, 489 U.S. 378, 391 (1989) (noting that a mistake made by an adequately
trained officer does not provide a basis for holding a municipality liable).
The record also does not support McKenney’s assertion that Cumberland
County’s policy or custom regarding civilian ride-alongs amounts to deliberate
indifference to Stephen’s constitutional rights.

While it is undisputed that the

presence of the civilian ride-along contributed to Deputy Mangino’s decision to shoot
Stephen, the causal connection between the custom and the constitutional harm is
too attenuated to support liability on the part of Cumberland County. See Canton,
489 U.S. at 391 (“the identified deficiency . . . must be closely related to the ultimate
injury”). It was not foreseeable that the custom regarding ride-alongs would result
in an exercise of deadly force against a person who did not pose a threat to the officers,
the civilian, or anyone else. To hold otherwise would require too much prescience
from the County. Stephen’s death was far from the sort of “highly predictable”
consequence of the ride-along policy that is needed to show deliberate indifference on
the part of the County. See Thompson, 563 U.S. at 71.

37 

Cumberland County argues that it did not provide the “action beats reaction”
training that McKenney objects to, contending that this training was provided by the
Maine Criminal Justice Academy. ECF No. 60 at 10. In support of this argument,
Cumberland County cites to Deputy Mangino’s deposition testimony, where he stated
that “[g]iven my training and experience that I’ve had at the academy, et cetera, I’ve
been trained that action beats reaction.” ECF No. 41-35 at 28, 102:25-103:2. Deputy
Mangino was not asked, and did not explain, what his use of the phrase “et cetera”
refers to. See id. Given that the facts must be viewed in the light most favorable to
the plaintiff at this stage, I find that this statement does not establish that
Cumberland County had no involvement in Deputy Mangino’s “action beats reaction”
training. Especially in light of Deputy Mangino’s use of the word “experience,” it is
plausible to infer from this evidence that the “training and experience” that Mangino
referenced in his testimony includes his training and experience with the
Cumberland County Sheriff’s Office, and does not simply refer to the training he
received at the Academy.
The question, then, is whether the training Deputy Mangino received on
“action beats reaction” and “stop and eliminate the threat” was a moving force behind
the alleged constitutional violation, and demonstrates deliberate indifference on the
part of Cumberland County to Stephen’s constitutional rights. See Brown, 520 U.S.
at 403-04; Thompson, 563 U.S. at 61. McKenney argues that Deputy Mangino was
trained to use deadly force in situations where such force was not justified by an
immediate threat, and to that extent the training created an obvious risk of

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constitutional violations. ECF No. 50 at 21. In his deposition testimony, Deputy
Mangino explained that his decision to shoot Stephen when he did stemmed from his
training that action beats reaction, and that it was proper for him to try to stop and
eliminate the threat. ECF No. 41-35 at 28, 102:25-103:2; 29, 104:9-20; 29, 106:5-11;
30, 108:24-109:6; ECF No. 41-36 at 17, 56:13-17. This testimony provides evidence of
the causal connection needed to establish municipal liability under a failure-to-train
theory. See Canton, 489 U.S. at 391 (noting that plaintiff “must still prove that the
deficiency in training actually caused” the constitutional violation). Deputy Mangino
himself identified his training as the reason behind his decision to use deadly force
against Stephen at the moment he did. Drawing all inferences from the evidence in
favor of the Plaintiff, as I must at this stage, there is adequate support in the record
for the conclusion that Deputy Mangino’s inadequate training caused the violation of
Stephen’s constitutional rights.
It is important to note that it is quite possible that the training provided by
Cumberland County was in fact appropriate and adequate, and that Deputy Mangino
simply misunderstood or misapplied his training. The record includes Cumberland
County’s policy regarding the use of deadly force.

See ECF No. 41-54.

But

Cumberland County has not made this argument, and does not point the Court to
any evidence in the record suggesting that Deputy Mangino incorrectly applied his
training. At the summary judgment stage, where I must view the evidence in the
light most favorable to the Plaintiff and draw all reasonable inferences in her favor,
it would not be appropriate to draw this inference in favor of the County. Given the

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record and the arguments made by the parties, I instead must assume, for purposes
of this motion, that Deputy Mangino’s training was inadequate, rather than
misapplied.
If, as discussed above, Deputy Mangino violated Stephen’s Fourth Amendment
rights when he shot him, it is plausible to infer from the evidence that his training
was the moving force behind his decision to employ deadly force at a time when
Stephen did not pose a sufficient threat to justify that force. Furthermore, a failure
to adequately train police officers on the situations that justify the use of deadly force
creates an obvious risk that an officer will violate the Constitution. See Canton, 489
U.S. at 390 n.10 (suggesting that failing to train police officers on the use of deadly
force could be characterized as deliberate indifference to a highly predictable violation
of constitutional rights); see also Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 796 (9th
Cir. 2016) (reversing grant of summary judgment to county on single-incident failure
to train claim because inadequacy in training of social workers was so likely to result
in constitutional violation as to constitute deliberate indifference);

Shadrick v.

Hopkins Cty., Ky., 805 F.3d 724, 739-40 (6th Cir. 2015) (reversing grant of summary
judgment to county on single-incident failure to train claim because risk of
constitutional harm arising from allegedly deficient training of prison medical staff
was “obvious”); Thomas v. Cumberland Cty., 749 F.3d 217, 225 (3d Cir. 2014)
(reversing grant of summary judgment to county on single-incident failure to train
claim because alleged deficiency in prison staff’s training created high likelihood of
constitutional violation). Therefore, there is sufficient evidence in the record to

40 

support the inference that Cumberland County may be liable for failing to adequately
train Deputy Mangino.
Based on the foregoing, Cumberland County is not entitled to summary
judgment on Count V of the Complaint. Cumberland County is accordingly not
entitled to summary judgment on Count II. See Berube, 506 F.3d at 85.
2. Americans with Disabilities Act Claim
As discussed above with respect to the claims against Windham, McKenney’s
claims under the ADA must fail, both because the undisputed facts do not support an
inference that Stephen was discriminated against or denied any service “by reason
of” his disability, see Buchanan, 469 F.3d at 176, and because the emergency
circumstances exception to ADA liability applies in this case, see Estate of Buchanan,
417 F. Supp. 2d at 73.

Cumberland County is therefore entitled to summary

judgment on Count VI of the Complaint.
3. State Law Tort Claims
Finally, as discussed with respect to Windham, the state law tort claims
alleged by McKenney do not fit within any of the narrowly-construed exceptions to
the tort immunity granted to municipalities by the Maine Tort Claims Act. See 14
M.R.S.A. § 8104-A(1)-(4). Cumberland County has not waived this immunity through
the purchase of liability insurance; the parties agree that its insurance coverage
specifically excludes from coverage tort claims from which the county is immune.
ECF No. 49 at 3, ¶¶ 26-29. Therefore, Cumberland County is entitled to summary
judgment on Counts IV and VII to X of the Complaint.

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III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that:


Defendant Town of Windham’s motion for summary judgment (ECF No. 43) is
GRANTED.



Defendant Nicholas Mangino’s motion for summary judgment (ECF No. 45) is
GRANTED with respect to Counts III and V, and DENIED with respect to
Counts I, II, IV, VII, VIII, IX, and X.



Defendant Cumberland County’s motion for summary judgment (ECF No. 45)
is GRANTED with respect to Counts I, III, IV, VI, VII, VIII, IX, and X, and
DENIED with respect to Counts II and V.

SO ORDERED.
Dated this 12th day of April 2017.

/s/ Jon D. Levy
U.S. DISTRICT JUDGE

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