Stamps et al v. Framingham et al

Filing 114

Judge F. Dennis Saylor, IV: ORDER entered granting in part and denying in part 86 Motion for Summary Judgment. (Pezzarossi, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
EURIE A. STAMPS, JR. and NORMA
)
BUSHFAN-STAMPS, Co-Administrators of )
the Estate of Eurie A. Stamps, Sr.,
)
)
Plaintiffs,
)
)
v.
)
)
TOWN OF FRAMINGHAM and PAUL K. )
DUNCAN,
)
)
Defendants.
)
)
_______________________________________)

Civil No.
12-11908-FDS

MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
SAYLOR, J.
This is a civil rights action arising out of the shooting of an individual during the
execution of a search warrant. On January 25, 2011, Eurie Stamps, Sr., was shot and killed in
his home by defendant Paul Duncan, an officer of the Framingham Police Department. Plaintiffs
Eurie Stamps, Jr., and Norma Stamps are the co-administrators of the elder Stamps’s estate.
They have brought suit on behalf of the estate against Duncan and the Town of Framingham,
alleging violations of the constitutional rights of the elder Stamps under 42 U.S.C. § 1983, and
wrongful death under the Massachusetts Torts Claims Act, Mass. Gen. Laws ch. 258, § 2.
Defendants have moved for partial summary judgment. For the following reasons, the
motion will be granted in part and denied in part.

I.

Background
A.

Factual Background

The following facts are undisputed unless otherwise noted.
On January 5, 2011, the Framingham police department executed a search warrant on a
first-floor apartment at 26 Fountain Street. (Def. SMF ¶ 7). Eurie Stamps, Sr., a 68-year-old
retired MBTA maintenance worker, resided in the apartment with his wife Norma and his
stepson Joseph Bushfan. (Def. SMF ¶ 5; Pl. SMF ¶ 1).
The search arose out of a report that Bushfan and others were selling crack cocaine from
the apartment. (Def. SMF ¶ 2). Framingham police detectives believed that Bushfan and two
other males in the apartment had violent criminal histories and affiliations with Boston gangs.
(Def. SMF ¶ 3; Pl. SMF ¶ 2; Duncan Dep. 19-21).
The Framingham police did not suspect Stamps of any crime. He did not have a history
of violence. The SWAT team was specifically informed “that he posed no known threat to the
police during the execution of the warrant.” (Pl. SMF ¶¶ 2, 6-7; Duncan Dep. 21-25).
Officer Paul Duncan was one of approximately eleven SWAT team members that raided
the apartment. (Def. SMF ¶ 1; Pl. SMF ¶ 4). He entered the apartment through the front door.
(Def. SMF ¶ 8). He was carrying a loaded M-4 rifle. After entering the apartment, he moved the
selector switch of his rifle from “safe” to “semi-automatic.” (Def. SMF ¶ 9).1
During the search of the apartment, two officers encountered Stamps in a hallway that
connected the kitchen to the bathroom and a rear bedroom. They ordered him to “get down.”
(Def. SMF ¶ 14; Pl. SMF ¶ 20). Stamps complied with the order and lay on his stomach with his

1

When the gun is in “safe” mode, it cannot be fired. (Pl. SMF ¶ 36).

2

hands near his head. (Def. SMF ¶ 15). The officers who had ordered Stamps into this position
left him to investigate other rooms. (Def. SMF ¶¶ 18-19; Pl. SMF ¶ 21).
Duncan was ordered to go to the kitchen. Once there, he encountered Stamps lying on
the floor on his stomach in the hallway outside the kitchen. (Def. SMF ¶¶ 12-13, 20; Pl. SMF ¶¶
22-25). While the other SWAT members continued the search of the apartment, Duncan
approached Stamps and pointed his rifle at him. (Def. SMF ¶¶ 21-22). Duncan contends that he
did so, with the rifle’s selector switch still in its “semi-automatic” position, for the purpose of
protecting himself and sending a message that Stamps should not move or do anything
threatening. (Pl. SMF ¶ 28; Duncan Dep. 72-76). At some point, Duncan put his index finger
inside the trigger guard and on the trigger.
While Duncan was pointing the rifle at Stamps, he pulled the trigger. The shot hit
Stamps in the face. (Def. SMF ¶ 27; Pl. SMF ¶ 32). Stamps died as a result of the shot. (Def.
SMF ¶ 36).
At no point did Stamps do or say anything to suggest that he was a threat to the police or
anyone else, or to suggest that he was not cooperating. The parties agree that Duncan did not
intend to pull the trigger or injure Stamps.
According to plaintiffs’ expert, Duncan’s failure to keep the rifle’s safety engaged and
his placement of his finger on the trigger contravened safe firearm-handling procedures. (Def.
SMF ¶¶ 37, 39; Pl. SMF ¶ 40). Defendants concede that by placing his finger on the trigger,
Duncan did not comply with Framingham police officer training or protocols. (Def. SMF ¶¶ 38,
43).

3

B.

Procedural Background

On October 12, 2012, Eurie Stamps, Jr., and Norma Stamps filed the complaint in this
case. The amended complaint alleges section 1983 violations by Duncan predicated on Fourth
and Fourteenth Amendment violations; a section 1983 violation by the Town of Framingham
predicated on negligent training; a state law claim against Duncan for wrongful death; and two
counts of wrongful death in violation of Massachusetts law against the Town of Framingham.
Defendants have moved for partial summary judgment as to nine of the ten counts.2 They
contend that (1) Duncan’s unintentional firearm discharge cannot violate a constitutional right;
(2) that Duncan’s decision to introduce the firearm into the encounter with Mr. Stamps was
objectively reasonable; and (3) Duncan is entitled to qualified immunity because a constitutional
right to be free from unintentional shootings was not clearly established at the time of the
incident.
II.

Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when
the moving party 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). “Essentially, Rule 56[]
mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will

2

Defendants have not moved for summary judgment on Count 9 against the Town of Framingham for
wrongful death under the Massachusetts Torts Claims Act, Mass. Gen. Laws ch. 258 § 2, predicated on Duncan’s
negligence.

4

bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.
1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
determination, the court must view “the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary judgment is made, the adverse party
‘must set forth specific facts showing that there is a genuine issue for trial.’” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-moving
party may not simply “rest upon mere allegation or denials of his pleading,” but instead must
“present affirmative evidence.” Id. at 256-57.
III.

Analysis
A.

Claims Against Duncan
1.

Section 1983

Section 1983 is a vehicle for vindicating substantive rights conferred by the Constitution
or laws of the United States that have been violated by persons acting under color of state law.
See Graham v. Connor, 490 U.S. 386, 393-94 (1989); Albright v. Oliver, 510 U.S. 266, 315
(1994). Here, it is not disputed that Duncan is a state actor being sued for actions taken pursuant
to his official duties; the sole issue is whether his actions deprived Stamps of his constitutional
rights. The complaint identifies both the Fourth Amendment and the Fourteenth Amendment
Due Process Clause as the source of the substantive rights allegedly infringed by Duncan. The
constitutional claim is based on the use of excessive force.

5

a.

Fourth Amendment (Counts 1-4)

Counts 2 and 3 allege Fourth Amendment violations based on the use of excessive force.3
The Fourth Amendment guarantees the right “to be secure . . . against unreasonable searches and
seizures.” Defendants deny that Duncan’s action constitutes a violation of the Fourth
Amendment and contend that, to the extent that he did infringe Stamps’s constitutional rights, he
is entitled to qualified immunity.
The doctrine of qualified immunity protects public employees “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Qualified immunity is determined according to a two-part test. Pearson v.
Callahan, 555 U.S. 223 (2009); Maldonado v. Fontanes, 568 F.3d 263, 268-69 (1st Cir. 2009).
Under Pearson and Maldonado, the relevant inquiries are (1) whether the facts alleged or shown
by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue
was clearly established at the time of defendant’s alleged misconduct. Pearson, 555 U.S. at 224;
Maldonado, 568 F.3d at 269. Although conducting this two-step analysis in sequence is
sometimes advisable because doing so “promote[s] the development of constitutional precedent,”
courts have discretion to avoid the direct constitutional question when a matter may be resolved
at the second step. Maldonado, 568 F.3d at 269-70.

3

Count 1 relies on allegations that officer Duncan intentionally used deadly force during the course of the
seizure. However, the parties agree that Duncan’s shooting of Stamps was accidental. Summary judgment as to
Count 1 will therefore be granted. Counts 2 and 3 will be analyzed together as a claim for excessive force. Count 4
appears to be a claim for Fourth Amendment violations based on an unlawful search. However, the undisputed facts
indicate that the warrant and search were authorized by law, and plaintiffs do not appear to have put forth any facts
to create a genuine issue of material fact with respect to Count 4. Summary judgment will therefore be granted as to
Count 4.

6

(1)

Alleged Violation of a Constitutional Right

In order to establish a Fourth Amendment claim based on excessive use of force, the
plaintiff must show (1) that there was a “seizure” within the meaning of the Fourth Amendment;
and (2) that the use of force during the seizure was unreasonable under all circumstances.
Graham, 490 U.S. at 394; Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002). A “seizure”
within the meaning of the Fourth Amendment occurs “only when there is a governmental
termination of freedom of movement through means intentionally applied.” Brower v. County of
Inyo, 489 U.S. 593, 597 (1989). The governmental termination of freedom of movement can
occur “by means of physical force or show of authority.” Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968); see also United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“Examples of
circumstances that might indicate a seizure . . . would be . . . the display of a weapon by an
officer . . . .”). The relevant inquiry is whether the officer intended to acquire control over a
specific individual. See Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 794-95 (1st Cir. 1990)
(explaining that the restraint of liberty must result from an attempt to gain control over an
individual).
Here, the undisputed facts show that officer Duncan intentionally pointed his rifle at
Stamps as a show of authority in order to assume control over him. (DSMF ¶¶ 21-22). Stamps
was therefore unquestionably seized, and remained under seizure at all relevant times. The
question, then, is whether the use of force during the seizure was reasonable under the
circumstances.
All claims of excessive force must be judged by an “objective reasonableness” standard.
Graham, 490 U.S. at 397. The reasonableness of the force is determined by a “careful

7

balancing” of the level of force used with the countervailing governmental interests at stake. Id.
at 396. The reasonableness of the force may not be judged with the benefit of hindsight, but
from “the perspective of a reasonable officer on the scene.” Id. The objective reasonableness of
the force used is determined by means of a balancing test that considers, among other things, the
severity of the suspected offense, whether the suspect poses an immediate threat to the officer
and others, and whether the suspect is actively resisting arrest or attempting to evade arrest by
flight. Id.; see also Bastien, 279 F.3d at 14.
The officer’s subjective intent or motivation is not relevant to the reasonableness inquiry.
Bastien, 279 F.3d at 14 (citing Alexis v. McDonald’s Rests., 67 F.3d 341, 352 (1st Cir. 1995)).
“An officer’s evil intentions will not make a Fourth Amendment violation of an objectively
reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable
use of force constitutional.” Graham, 490 U.S. at 397.
The intentional use of deadly force during a seizure is unconstitutional unless the officer
has probable cause to believe that the suspect poses a significant threat of death or serious
physical injury. Tennessee v. Garner, 471 U.S. 1, 3 (1985). Even the unintentional or accidental
use of deadly force in the course of an intentional seizure may violate the Fourth Amendment if
the officer’s actions that resulted in the injury were objectively unreasonable. See Brower, 489
U.S. at 599; Landol-Rivera, 906 F.2d at 796 (explaining that unintentional conduct may trigger
Fourth Amendment liability “when a police officer accidentally causes more severe harm than
intended to an individual”).
Here, it is undisputed that Duncan fired his weapon by accident, not intentionally.
Multiple courts have concluded or at least suggested that the accidental firing of a weapon in the

8

course of an intentional seizure can give rise to an excessive force claim under the Fourth
Amendment. See, e.g., Henry v. Purnell (“Henry II”), 652 F.3d 524 (4th Cir. 2011) (en banc)
(fleeing suspect shot when officer mistakenly fired handgun instead of Taser); Watson v. Bryant,
532 Fed. Appx. 453 (5th Cir. 2013) (arrestee accidentally shot during attempted handcuffing);
Tallman v. Elizabethtown Police Dept., 167 Fed. Appx. 459 (6th Cir. 2006) (suspect accidentally
shot when officer reached into vehicle); Pleasant v. Zamieski, 895 F.2d 272 (6th Cir. 1990) (gun
accidentally discharged when officer grabbed suspect); McCoy v. City of Monticello, 342 F.3d
842 (8th Cir. 2003) (suspect shot when officer fell on ice and gun accidentally discharged);
Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008) (arrested suspect in patrol car shot when
officer mistakenly fired handgun instead of Taser); Speight v. Griggs, 13 F. Supp. 3d 1298 (N.D.
Ga. 2013) (suspect accidentally shot while being subdued and handcuffed), vacated in part on
other grounds, 579 Fed. Appx. 757 (11th Cir. 2014).
The relevant inquiry is not whether Duncan intended to injure Stamps, and thus whether
it was an accidental or an intentional shooting; the officer’s subjective intent is not the issue.
Instead, it is whether Duncan’s conduct leading up to the discharge of the gun was objectively
reasonable under the circumstances. See, e.g., Watson, 532 Fed. Appx. at 457-58 (finding that
an undisputedly accidental shooting can lead to Fourth Amendment liability if the officer “acted
objectively unreasonably by deciding to make an arrest, by drawing his pistol, or by not
reholstering it”); Tallman, 167 Fed. Appx. at 463-66 (focusing reasonableness inquiry on
officer’s actions leading up to unintentional discharge of the weapon); McCoy, 342 F.3d at 848
(“[T]he relevant inquiry is not whether [officer’s] act of firing his gun was ‘objectively
reasonable,’ but whether, under the totality of the circumstances, the act of drawing the gun was

9

‘objectively reasonable.’”); Pleasant, 895 F.2d at 276 (explaining that the relevant inquiry is
whether officer’s decision to draw gun at scene and decision to not return gun to holster were
reasonable).
It is undisputed that Duncan entered the apartment with his gun drawn, moved the safety
from “safe” mode to “semi-automatic,” pointed the weapon at Stamps, and placed his finger
inside the guard on the trigger. He then shot him in the head, albeit unintentionally. Although
there is apparently no issue with respect to the reasonableness of drawing the weapon, there are
substantial issues as to the reasonableness of Duncan’s conduct as a whole.
First, Stamps posed no actual threat. He was an elderly man. There was no struggle of
any kind when the police encountered him. He immediately cooperated with the police and lay
down on this stomach, with his hands visible. He made no movement or sound of any kind to
indicate any type of resistance, force, or flight.
Second, Stamps was not a suspected threat. The police were not surprised by his
presence at the scene (which was his own home). He was not a criminal suspect. He had no
history of violence. Indeed, the police officers had been specifically told that Stamps “posed no
known threat” to the police.
Third, the potential harm posed to Stamps from the form of restraint used by Duncan was
high—indeed, extremely high. Duncan did not use his hands, or a nightstick, or a chokehold.
He did not restrain Stamps with handcuffs. Instead, he pointed a semi-automatic firearm in
apparent close proximity to Stamps’s head. The likely harm to Stamps, should a misstep occur,
was not a mere bruise or broken bone, but death or serious injury.
Fourth, Duncan’s intentional actions greatly increased the risk of accidental harm. By

10

turning off the safety and putting his finger on the trigger, he created the very real possibility that
any bump or jolt—or nervous twitch—would result in Stamps’s death.4
Fifth, there was no obvious justification or need for Duncan to have turned off the safety
and put his finger on the trigger, inside the trigger guard. The placement of his finger apparently
violated police department policy, and possibly proper police practice. See Sorenson v.
McLaughlin, 2011 WL 1990143, at * 6 (D. Minn. 2011) (officer’s placement of finger inside
trigger guard that led to accidental shooting violated police training). There is no reason to
believe that Duncan could not have quickly moved the safety, and put his finger inside the guard,
had any actual threat materialized.
Under the circumstances, a reasonable jury could find that Duncan’s actions leading up to
the shooting were objectively unreasonable, and therefore that he employed excessive force in
violation of the Fourth Amendment.
(2)

Clearly Established Law

Defendants contend that even if a jury could find an unreasonable seizure giving rise to
an excessive force claim, Duncan is nonetheless entitled to qualified immunity. For purposes of
the second step of the qualified-immunity analysis, “[a] right is clearly established only if it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011). Put another way, the
court must determine “[1] whether the contours of the right, in general, were sufficiently clear,
and [2] whether, under the specific facts of the case, a reasonable defendant would have
understood that he was violating the right.” Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014)

4
Defendants concede that Duncan did not comply with police protocol by placing his finger on the trigger.
The parties dispute whether switching off the safety contravenes safe firearm-handling procedures.

11

(citing Maldonado, 568 F.3d at 269). Although a case directly on point is not required, “existing
precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2083 (2011).
The inquiry starts by “defining the right at issue at ‘an appropriate level of generality.’”
Hunt v. Massi, __ F.3d __, No. 14-1379, slip op. at 10 (1st Cir. Dec. 10, 2014). “The clearly
established inquiry must be undertaken ‘in a more particularized, and hence more relevant,
sense.’” Id., slip op. at 11 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). The court “must
analyze whether the law is clearly established ‘in light of the specific context of the case, not as a
broad general proposition.’” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).
As a starting point, it was clearly established at the time of the incident that the
unintentional or accidental use of deadly force during a seizure can give rise to a constitutional
violation if the officer has acted unreasonably in creating the danger. In Brower, the Supreme
Court made that point clear. There, the police had set up a roadblock intending to capture (but
not kill) a fleeing felon; the roadblock was situated behind a curve, at night, and a police vehicle
was positioned so that its headlights would shine at the oncoming driver. 489 U.S. at 594.
Brower drove into the roadblock at high speed and was killed. The precise issue before the court
was whether a “seizure” had occurred; the court concluded that it had. 489 U.S. at 598-99. The
court went on, however, to observe:
This is not to say that the precise character of the roadblock is irrelevant to further
issues in this case. “Seizure” alone is not enough for § 1983 liability; the seizure
must be “unreasonable.” Petitioners can claim the right to recover for Brower’s
death only because the unreasonableness they allege consists precisely of setting up
the roadblock in such a manner as to be likely to kill him. . . . Thus, the
circumstances of this roadblock, including the allegation that headlights were used
to blind the oncoming driver, may yet determine the outcome of this case.

12

Id. at 599. In other words, it was clear that the petitioners could recover—even though the death
was accidental—if they could establish that the police had acted unreasonably in creating the
danger.
That principle was reinforced in Scott v. Harris, 550 U.S. 372 (2007), a case involving a
high-speed police chase of a fleeing suspect that ended in an accident, severely injuring the
suspect. The court held that the claim of excessive force must be judged according to the
objective reasonableness standard, and that the question turned on the police officer’s actions
leading up to the accident. 550 U.S. at 381-83. “Whether or not [the officer’s] actions
constituted application of ‘deadly force,’ all that matters is whether [his] actions were
reasonable.” Id. at 383.
Since Brower, every circuit court to consider the issue has concluded or at least
suggested that the unintentional discharge of a firearm during a seizure can give rise to a Fourth
Amendment claim if the officer’s actions leading up to the shooting were objectively
unreasonable. See Henry v. Purnell (“Henry I”), 501 F.3d 374, 382-83 (4th Cir. 2007); Henry II,
652 F.3d at 531-37 (4th Cir. 2011) (en banc); Watson, 532 Fed. Appx. at 457-58 (5th Cir. 2013);
Pleasant, 895 F.2d at 276 (6th Cir. 1990); Tallman, 167 Fed. Appx. at 463-66 (6th Cir. 2006);
McCoy, 342 F.3d at 848 (8th Cir. 2003); Torres, 524 F.3d at 1056 (9th Cir. 2008); Bleck v. City
of Alamosa, 540 Fed. Appx. 866, 876-77 (10th Cir. 2013); see also Speight, 13 F. Supp. 3d at
1319 (N.D. Ga. 2013); Owl v. Robertson, 79 F.Supp. 2d 1104, 1114 (D. Neb. 2000); Johnson v.
City of Milwaukee, 41 F. Supp. 2d 917 (E.D. Wis. 1999); Sorenson, 2011 WL 1990143 (D.

13

Minn. 2011).5 The First Circuit has not considered the precise issue, but has made a similar
statement in dicta. See Landol-Rivera, 906 F.2d at 796 n.9 (noting that “unintentional conduct
triggering Fourth Amendment liability may occur when a police officer accidentally causes more
severe harm than intended to an individual” during a seizure).
Although many of those decisions resulted in summary judgment for the police officer, in
each case the court focused on the police officer’s use and handling of the weapon under the
circumstances presented. See Henry II, 652 F.3d at 534-35 (mistaken use of firearm instead of
Taser); Watson, 532 Fed. Appx. at 458 (decision not to reholster weapon before attempting
handcuffing); Pleasant, 895 F.2d at 276-77 (decision not to reholster weapon before grabbing
suspect); Tallman, 167 Fed. Appx. at 464-68 (decision to approach automobile passenger with
weapon drawn and then to reach into vehicle); McCoy, 342 F.3d at 848-49 (decision to draw
weapon); Torres, 524 F.3d at 1056-57 (mistaken use of firearm instead of Taser); Bleck, 540
Fed. Appx. at 871-73 (decision to attempt to restrain suspect with hands while holding weapon
in one hand); Speight, 13 F. Supp. 3d at 1321-23 (decision to draw gun and not reholster
weapon); Owl, 79 F. Supp. 2d at 1112-14 (decision to draw the weapon and act of forcing
suspect to the ground); Johnson, 41 F. Supp. 2d at 930 (decision to wrestle suspect to ground
with weapon in hand); Sorenson, 2011 WL 1990143 (decision to wrestle suspect to ground with
weapon in hand and finger insider trigger guard).
5
A recent one-page unpublished Ninth Circuit opinion arguably provides the only exception. See Powell v.
Slemp, 2014 WL 5139243 (9th Cir. Oct. 14, 2014). In Powell, the Ninth Circuit held that a police officer who
unintentionally discharged a gun while attempting to restrain a suspect was entitled to qualified immunity. The court
did not address whether an unintentional discharge of a firearm could lead to Fourth Amendment liability. Instead, it
jumped to the second prong of the qualified immunity analysis. In finding qualified immunity, the court ruled that
the case law must be clear that the officer’s use of a firearm in the course of the restraint violated the Fourth
Amendment, and concluded that “no such case law exists.” Id. The court did not mention any of the relevant case
law, including the prior published decision from the Ninth Circuit itself. See Torres, 524 F.3d at 1056. Accordingly,
the Powell opinion, which was issued more than three years after the events at issue here, is in any event
unpersuasive.

14

It is true that in 1987, the Second Circuit had ruled to the opposite effect, holding that an
accidental discharge of a firearm during the handcuffing of a suspect could not, as a matter of
law, lead to liability under § 1983. Dodd v. City of Norwich, 827 F.2d 1, 7-8 (2d Cir. 1987) (“It
makes little sense to apply a standard of reasonableness to an accident.”).6 But it is highly
doubtful whether Dodd remains good law. Most importantly, it was decided before both Brower
(in which the Supreme Court made clear that unreasonable conduct in the course of a seizure that
results in an accidental death can give rise to liability, 489 U.S. at 599) and Graham (in which
the Supreme Court held that all claims of excessive force in the course of a seizure should be
analyzed under the Fourth Amendment and its “reasonableness standard,” 490 U.S. at 395).7
After Graham, the law has been clear that it does not matter whether the police officer
subjectively intended no harm—that is, whether it was an “accident,” as opposed to an
intentional infliction of harm.8 Instead, the question is whether the police officer’s conduct was
objectively reasonable.
In summary, in light of the Supreme Court precedent and the overwhelming weight of
appellate authority, it was clearly established as of January 25, 2011, that an unintentional
6

The Dodd court therefore did not consider whether the officer’s actions leading up to the accident might
have been unreasonable under the Fourth Amendment (although it did find those actions reasonable for purposes of a
claim under state tort law).
7

The Dodd court also concluded that the shooting was “not for the purpose of seizing [the suspect],”
because for “all intents and purposes,” the seizure of the suspect had “already taken place” by the time the police
officer had begun to handcuff him, and before the firearm discharged. 827 F.2d at 7. While it is clearly true that the
firing of the weapon was not intended to effect the seizure, it is difficult to see how the court concluded that the
seizure was over by the time the weapon discharged.
8

Prior to the incident in this case, several district courts, mostly in the Third Circuit, had followed Dodd in
cases involving police shootings, notwithstanding the Supreme Court’s intervening opinions in Brower and Graham.
See Brice v. City of York, 528 F. Supp. 2d 504 (M.D. Pa. 2007); Clark v. Buchko, 936 F. Supp. 212 (D.N.J. 1996);
Troublefield v. City of Harrisburg, Bureau of Police, 789 F. Supp. 160 (M.D. Pa. 1992). To the extent those
decisions turn on the officer’s subjective intent (that is, whether the shooting in question was an “accident”) rather
than the objective reasonableness of the officer’s actions (that is, whether the officer’s conduct, from an objective
viewpoint, resulted in excessive force) they appear to be wrongly decided.

15

shooting during an intentional seizure can constitute excessive force if the officer’s conduct
leading to the accident was objectively unreasonable.9 Furthermore, it was well-established that
the unsafe handling of a firearm during a seizure could constitute unreasonable conduct.
The remaining question is whether the law was clearly established “in light of the
specific context of this case.” Hunt v. Massi, slip op. at 11. In particular, the question is
whether an objectively reasonable officer would know that his failure to observe safety
precautions when pointing a loaded firearm at an innocent person who posed no threat could lead
to a constitutional violation if the gun discharged as a result.
As noted, there are multiple cases holding that an officer can be found liable for an
accidental shooting in the course of a seizure where the officer acted unreasonably while
handling a firearm in the course of a seizure. Nearly all of the reported cases involve a physical
struggle with a criminal suspect who was resisting arrest, failing to comply with police orders, or
attempting to flee. See, e.g., Henry II, 652 F.3d at 524 (suspect was fleeing from police);
Watson, 532 Fed. Appx. at 455 (suspect had refused to comply with police command and was
resisting handcuffing); Speight, 13 F. Supp. 3d at 1304 (suspect had fled from police and was in
the process of being handcuffed); McCoy, 342 F.3d at 842 (suspect, who was apparently
intoxicated, had failed to stop for police); Pleasant, 895 F.2d at 273 (suspect was fleeing from
police); Torres, 524 F.3d at 1054-55 (arrestee was becoming violent in back of patrol car). Even
in the Tallman case, which involved the shooting of an apparently innocent automobile
passenger after a high speed car chase, the passenger had not responded to police commands,
leading the officer to attempt a physical seizure that resulted in an accidental discharge of the

9

While some of the opinions noted were issued after 2011, the date of the incident, there were five relevant
appellate opinions, in addition to Brower, Scott, and Landol-Rivera, by that point.

16

firearm. 167 Fed. Appx. at 461.
The parties and the Court have not found a case precisely identical to the present facts.
That does not, however, preclude a finding that qualified immunity does not apply. See Hope v.
Peltzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.”); Johnson, 41 F. Supp. 2d at 930. Here,
the target of the seizure (Stamps) was not resisting arrest, refusing to obey orders, fleeing, or
otherwise posing a threat to anyone. Duncan’s conduct was therefore, if anything, less justified
than the conduct of the officers in the other reported cases. An objectively reasonable police
officer in Duncan’s position would therefore have known that the decision to point the weapon at
Stamps’s head, with the safety off and his finger on the trigger and inside the guard, could result
in a constitutional violation if he discharged the weapon without cause.
Perhaps the most appropriate way to frame the issue is to consider the principle that the
objective reasonableness of an exercise of force is determined according to a balancing test—a
test that weighs a variety of factors, such as the level of force used, the severity of the suspected
offense, the danger posed by the subject, and whether the suspect is resisting arrest. See
Graham, 490 U.S. at 396-97. Of course, every reported case involving excessive force turns on
its own variable set of facts or circumstances, and therefore an individualized striking of the
balance. And officers making real-time decisions in the field will sometimes make honest
mistakes or miscalculations as to how that balance ought to be struck, and the law provides
considerable leeway for them to do so. Nonetheless, there are surely instances where the balance
tips so far in one direction that a reasonable police officer would clearly know that the force (or
threat of force) was excessive. Where the danger or threat posed by the subject—and as
reasonably perceived by the police officer—is virtually non-existent, and the conduct of the
17

officer in the handling of a firearm creates a very high risk of death or serious injury, an
objectively reasonable officer would know that his conduct was unreasonable. Put another way,
at the extremes—an extremely low danger posed by the subject coupled with an extremely high
risk created by the officer—any reasonable officer would know his conduct violated the Fourth
Amendment.10
This is such a case. As noted above, Stamps presented no threat, whether actual,
suspected, or perceived. He had not committed a crime, and he was not believed or suspected to
be dangerous.11 When Duncan encountered him, Stamps was in a vulnerable position, lying
down on the floor with his hands up. He made no movement, sudden or otherwise. He was not
resisting arrest or attempting to flee. Duncan nonetheless pointed a loaded firearm at his
head—with the safety off and his finger inside the guard on the surface of the trigger. By doing
so, he greatly increased the danger to Stamps with relatively little (if any) law enforcement
justification. Thus, while it is true that each case turns on its own balancing of facts, none of
those cases involved the relative extremity of factors presented here.
Under the circumstances, an objectively reasonable officer would have known that the
combination of the lack of serious threat posed by the subject, the extremely high risk of harm
from the firearm, and the unnecessary or unjustified nature of the police action rendered the
officer’s conduct unreasonable. The legal contours of the constitutional right in question had

10

Suppose, for example, a police officer at a school crossing wanted to restrain a six-year-old girl from
crossing the street when the traffic light was red. If he did so by pressing a loaded and cocked firearm against her
temple, it would be clear that the display of force was excessive under the circumstances, because the proper balance
of factors under Graham would be so obvious. That would be true even if no case had ever so held. If the police
officer were jostled or bumped by another child and accidentally shot the girl, surely no court would find the officer
immune on the ground that no case with similar facts had ever been brought.
11

Again, the Framingham police had been advised "that he posed no known threat to the police during the
execution of the warrant." (Pl. SMF ¶¶ 2, 6-7; Duncan Dep. 21-25).

18

been clearly established at the time of the episode. Therefore, the Court finds that defendant is
not entitled to qualified immunity, and the motion for summary judgment with respect to Counts
2 and 3 will be denied.
b.

Fourteenth Amendment (Count 5)

Count 5 alleges violation of the Fourteenth Amendment Due Process Clause. “[A]ll
claims that law enforcement officers have used excessive force—deadly or not—in the course of
an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the
Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due
process’ approach.” Graham, 490 U.S. at 395. Here, the excessive force claim arises in the
context of Duncan’s seizure of Stamps. Therefore, the Fourteenth Amendment Due Process
Clause does not apply, and defendant’s motion for summary judgment as to Count 5 will be
granted.
c.

Punitive Damages (Count 6)

Count 6 alleges that plaintiffs are entitled to punitive damages predicated on the Fourth
Amendment excessive-force violation. To make a claim for punitive damages, plaintiff must
show that defendant’s actions were “motivated by evil motive or intent” or involved “reckless or
callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56
(1983). “Lack of intent to cause harm” does not automatically bar a claim for punitive damages.
Hernandez-Tirado v. Artau, 874 F.2d 866, 868 (1st Cir. 1989). However, “[p]unitive damages
are reserved for instances where the defendant’s conduct is ‘of the sort that calls for deterrence
and punishment over and above that provided by compensatory awards.’” Id. at 869 (quoting
Smith, 461 U.S. at 54). “The Supreme Court, in articulating the standard for punitive damages in
§ 1983 actions, also referred to common law standards using such terms as ‘injury . . . inflicted
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maliciously or wantonly,’ ‘criminal indifference to civil obligations,’ ‘willful misconduct’ or
‘conscious indifference to consequences,’ and ‘outrageous conduct.’” Id. (citations omitted).
Several courts have required a showing of “bad faith” by defendant or “ill will” or “malice”
toward plaintiff. Id. (collecting cases).
Plaintiffs concede that Duncan accidentally fired his weapon. Therefore, his actions were
not “motivated by evil motive or intent.” In addition, plaintiff has presented no evidence that
defendant acted outrageously, in bad faith, or with criminal indifference to civil obligations.
Therefore, plaintiffs cannot prove that defendant acted with “reckless or callous indifference to
the federally protected rights of others.” Accordingly, defendant’s motion for summary
judgment with respect to Count 6 will be granted.
2.

Wrongful Death (Count 8)

Count 8 alleges wrongful death under Mass. Gen. Laws ch. 229 § 2 on the basis that
“[o]fficer Paul Duncan’s shooting of Mr. Stamps was intentional in that he intended to pull the
trigger and intended to cause physical harm to Mr. Stamps.” (Am. Compl. ¶ 171).
Mass. Gen. Laws ch. 229 § 2 provides that a “person who (1) by his negligence causes
the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under
such circumstances that the deceased could have recovered damages for personal injuries if his
death had not resulted, . . . shall be liable in damages.” As noted, Count 8 alleges intentional
conduct on the part of defendant. However, that count fails because the undisputed evidence
shows that defendant did not intend to shoot Stamps. (Def. SMF ¶ 27; Pl. SMF ¶ 32).
If Count 8 were construed to be a claim for negligence or recklessness instead, it would
be barred because Duncan was a public employee. Under Mass. Gen. Laws. Ch. 258 § 2, “public
employees are immune from suit based on allegedly negligent conduct. Rather, liability for the
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negligent acts of a public employee committed within the scope of employment is visited upon
the public employer, and not the employee.” Farrah ex rel. Estate of Santana v. Gondella, 725
F. Supp. 2d 238, 246 n. 9 (D. Mass. 2010). For the purposes of this statute, “recklessness is
considered negligent, rather than intentional conduct.” Id. (quoting Parker v. Chief Justice for
Admin & Mgmt. of the Trial Court, 67 Mass. App. Ct. 174, 180 (2006)). Count 9 alleges
wrongful death against the City of Framingham based on Duncan’s negligence. Therefore,
defendant’s motion for summary judgment with respect to Count 8 will be granted.
B.

Claims Against City of Framingham

Defendants have moved for summary judgment on plaintiffs’ claims against the City of
Framingham for negligent training.
1.

Section 1983 Failure To Train (Count 7)

Count 7 alleges that the Town of Framingham is liable under section 1983 for failing to
train and supervise its officers. To establish municipal liability, a plaintiff must show that “the
municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious
liability will not attach under § 1983.” City of Canton v. Harris, 489 U.S. 378, 387 (1989);
Monell v. Department of Soc. Servs., 436 U.S. 658, 694-95 (1978). Thus, plaintiffs are required
to demonstrate both the existence of a policy or custom and a “direct causal link” between that
policy and the alleged constitutional deprivation. City of Canton, 489 U.S. at 385; see also
Monell, 436 U.S. at 694 (policy must be the “moving force [behind] the constitutional
violation”); Santiago v. Fenton, 891 F.2d 373, 381-82 (1st Cir. 1989). “Official municipal policy
includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force of law.” Connick v.
Thompson, 131 S. Ct. 1350, 1359 (2011).
21

It is uncontested that the City of Framingham is a municipal entity subject to potential
liability under section 1983. The claim for municipal liability rests principally on the city’s
alleged failure to train Duncan. A claim against a municipality under § 1983 is “most tenuous
where [it] turns on a failure to train.” Id. at 1359. To give rise to liability in such an action, “a
municipality’s failure to train its employees in a relevant respect must amount to ‘deliberate
indifference to the rights of persons with whom the [untrained employees] come into contact.’”
Id. (quoting Canton, 489 U.S. at 388); see also Young v. City of Providence, 404 F.3d 4, 26-27
(1st Cir. 2005) (holding that, under Monell, “any proper allegation of failure to train . . . must
allege that [the officer’s] lack of training caused him to take actions that were objectively
unreasonable and constituted excessive force” and that “the identified deficiency in [the training
program was] closely related to the ultimate injury”). “[D]eliberate indifference is a stringent
standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.” Id. at 1360 (quoting Board of County Commissioners of Bryan
County, Okl. v. Brown, 520 U.S. 397, 410 (1997)). As a result, in order for plaintiff to
demonstrate deliberate indifference for purposes of a failure to train claim, a “pattern of similar
constitutional violations by untrained employees is ordinarily necessary.” Id.
Plaintiffs contend that the Framingham Police Department’s policies with respect to the
use of a weapon’s safety were grossly deficient and caused the fatal shooting of Stamps. (Pl.
Opp. 30). Plaintiffs contend that “modern, up-to-date, and established law enforcement
procedures require police departments to train their officers that weapons are to remain on safe
until the officer is ready to fire at an object.” (Id.). Framingham Police Department policy
required that Duncan keep his weapon on safe unless he perceived a threat or was actively
clearing a room. (PSMF ¶¶ 38, 78). Plaintiffs further contend that the policy was inadequate
22

because officers were not trained as to what constitutes a perceived threat. (Id. at ¶ 78).
Plaintiffs contend that Stamps was not a threat, perceived or otherwise, and thus the failure to
properly train Duncan caused him to turn his gun off safe mode. (Id. at ¶¶ 38-39, 78-80).
The bar for establishing “deliberate indifference” in connection with a failure-to-train
claim is quite high, and plaintiffs have not met it here. Plaintiffs have put forth no evidence of
any other incidents of police misconduct. Absent such evidence, the Court cannot find that
failure to have a written policy as to what constitutes a perceived threat amounts to deliberate
indifference. There is no evidence that the police department was on notice of the possible flaws
in its policy. The issue is not whether the Framingham Police Department’s policy is wise or
sensible, or whether the Court might adopt something different. It is whether the policy, under
the circumstances, amounted to deliberate indifference, and therefore a constitutional violation.
With only one reported incident of misconduct related to the policy, any flaws do not rise to that
level. Accordingly, defendant’s motion for summary judgment with respect to Count 7 will be
granted.
2.

Mass. Gen. Laws ch. 258 § 2 (Count 10)

Count 10 alleges that the Town of Framingham is liable under Mass. Gen. Laws. ch. 258
§ 2 for negligent training and supervision of Duncan. The Massachusetts Torts Claims Act
provides that “[p]ublic employers shall be liable for injury or loss of property or personal injury
or death caused by the negligent or wrongful act or omission of any public employee while
acting within the scope of his office or employment.” Mass. Gen. Laws. ch. 258 § 2.
“Massachusetts cases have only allowed supervisory negligence claims against municipalities
where the municipality knew or should have known about an underlying, identifiable tort, which
was committed by named or unnamed public employees.” Kennedy v. Town of Billerica, 617
23

F.3d 520, 533 (1st Cir. 2010). As noted, there is no evidence that the City of Framingham knew
or should have known that Duncan was committing any kind of tort. Furthermore, the
Massachusetts Torts Claims Act creates a cause of action based on the negligence of public
employees. In Count 9, plaintiffs base a claim under this statute on Duncan’s negligence. Here,
there are no facts supporting a finding of negligence of public employees other than Duncan that
can be imputed upon the City of Framingham.
Accordingly, defendant’s motion for summary judgment with respect to Count 10 will be
granted.
IV.

Conclusion
For the foregoing reasons, defendant’s motion for summary judgment is:
1.

GRANTED with respect to Counts 1, 4, 5, 6, 7, 8, and 10.

2.

DENIED with respects to Counts 2 and 3.

So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: December 24, 2014

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