Mlodzinski v. Lewis

United States Court of Appeals
For the First Circuit

Nos. 10-1966
10-1967

THOMAS MLODZINSKI; TINA MLODZINSKI, individually
and as mother and next friend of J.M.,

Plaintiffs, Appellees,

v.

MICHAEL F. LEWIS, in his individual and official capacities as
Bristol Police Department Sergeant; TIMOTHY J. WOODWARD, in his
individual and official capacities as Bristol Police Department
Officer; GORDON C. RAMSAY, in his individual and official
capacities as Bristol Police Department Officer; RICHARD ARELL,
in his individual and official capacities as Northfield Police
Department Officer; CENTRAL NEW HAMPSHIRE SPECIAL OPERATIONS
UNIT, a/k/a CNHSOU; ROBERT CORMIER, in his individual and
official capacities as Plymouth Police Department Officer; CHRIS
TYLER, in his individual and official capacities as Littleton
Police Department Officer; RICK TYLER, in his individual and
official capacities as Grafton Sheriff's Department Officer,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Howard, Circuit Judges.

Charles P. Bauer, with whom Gallagher, Callahan & Gartrell,
P.C. was on brief, for appellants Lewis, Woodward, and Ramsay.
 William G. Scott, with whom Boynton, Waldron, Doleac,
Woodman & Scott, P.A. was on brief, for appellants Central New
Hampshire Special Operations Unit, Arell, Cormier, Chris Tyler,
and Rick Tyler.
Matthew J. Lahey for appellees.

June 2, 2011
 LYNCH, Chief Judge. This § 1983 action alleges that on

August 2, 2006, defendant law enforcement officers from the

Bristol, New Hampshire police force and the Central New Hampshire

Special Operations Unit (CNHSOU) used excessive force in executing

search and arrest warrants. Plaintiffs, who are family members of

the suspect arrested, allege that their Fourth Amendment rights

were violated by the officers' treatment of them while they were

detained during the execution of the warrants. Plaintiffs also

bring state law claims of assault and battery.

Seeking to avoid a trial, both sets of law enforcement

officers moved for summary judgment, arguing that they did not

violate plaintiffs' rights, and that even if they had, they were

entitled to qualified immunity on the grounds that their actions

were not clearly unlawful. Plaintiffs opposed, citing a number of

material issues of disputed fact. Indeed, on most of the key

issues, the two sides offer vastly different versions of the facts.

The district court denied the motions. Mlodzinski v. Lewis, 731 F.

Supp. 2d 157, 184 (D.N.H. 2010). Defendants have appealed from the

denial of qualified immunity. We affirm in part and reverse in

part.

I.

An interlocutory appeal from a denial of summary judgment

on qualified immunity grounds lies only if the material facts are

taken as undisputed and the issue on appeal is one of law.

-3-
Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d 36, 39 (1st Cir.

2004).

In 1995, the Supreme Court in Johnson v. Jones, 515 U.S.

304 (1995), cut back on the broad scope of appeals from denials of

summary judgment on qualified immunity that was thought to exist

under Mitchell v. Forsyth, 472 U.S. 511 (1985). The Court stressed

that the collateral order doctrine requires that a defendant's

claim of immunity be conceptually distinct from the merits of a

plaintiff's claim that his or her rights were violated, Johnson,

515 U.S. at 312, and it held that questions of "evidence

sufficiency" are not sufficiently distinct to warrant interlocutory

appeal, id. at 313-14. The Court explained that allowing an

interlocutory appeal on a question of evidentiary sufficiency

"makes unwise use of appellate courts' time, by forcing them to

decide in the context of a less developed record, an issue very

similar to one they may well decide anyway later, on a record that

will permit a better decision." Id. at 317. Thus, it balanced

interests in finality and avoidance of advisory opinions against

the policy reasons for permitting interlocutory appeals so that

government officials can avoid trial. Id. at 317-18.

This court has explored this aspect of Johnson on several

occasions, initially in Stella v. Kelley, 63 F.3d 71 (1st Cir.

1995). There, we held that we had interlocutory jurisdiction over

the legal question of whether a particular constitutional right

-4-
existed, but not over the fact-based question of whether the

evidence showed that a defendant's actions violated that right.1

Id. at 75. We explained that Johnson "permits immediate review of

the rejection of a qualified immunity claim when the issue appealed

concerns not what facts the litigants might (or might not) be able

to prove, but, rather, whether a given set of facts shows a

violation of a federally protected right." Id.

This court has assumed interlocutory appellate

jurisdiction where defendants have accepted as true all facts and

inferences proffered by plaintiffs, and defendants argue that even

on plaintiffs' best case, they are entitled to immunity.

Rodríguez-Rodríguez, 391 F.3d at 40; see also Valdizán v. Rivera-

Hernandez, 445 F.3d 63, 65 (1st Cir. 2006) (accepting jurisdiction

over issue of whether, on a given set of facts, an employee

occupied a position for which political affiliation is an

appropriate qualification). If even on plaintiffs' best case,

there is no violation of their rights, or the law was not clearly

established, or an objectively reasonable officer could have

concluded (even mistakenly) that his or her conduct did not violate

their rights, then qualified immunity must be granted. Accepting

appellate review and granting immunity in this type of case

1
We have also held that where the immunity question turns
on disputed factual issues of motivation or animus, interlocutory
review is barred. Valdizán v. Rivera-Hernandez, 445 F.3d 63, 65
(1st Cir. 2006); Tang v. Rhode Island, 120 F.3d 325, 328 (1st Cir.
1997). No party argues this doctrine to us.

-5-
furthers public officials' strong interests in resolving immunity

issues as quickly as possible. Maldonado v. Fontanes, 568 F.3d

263, 268 (1st Cir. 2009).

Although we accept interlocutory jurisdiction in this

case, we do so against a background in which even plaintiffs' best

case against the CNHSOU officers is not entirely clear. This not

only raises some of the same concerns that led the Supreme Court in

Johnson to limit interlocutory jurisdiction, but also leads us to

question whether this use of appellate review is in the best

interests of those seeking immunity. Defendants, however, have

opted not to create a summary judgment record of greater clarity,

but rather to accept plaintiffs' version in order to test the

immunity issue, so we accept jurisdiction. See Behrens v.

Pelletier, 516 U.S. 299, 313 (1996).

II.

While a claim of qualified immunity requires deference to

the objectively reasonable beliefs and actions of the defendants,

even if they are mistaken, the summary judgment standard requires

that we draw all reasonable inferences in plaintiffs' favor, as

long as they are based on facts that "are put forward on personal

knowledge or otherwise documented by materials of evidentiary

quality." Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir. 2009);

see also Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing

parties tell two different stories, one of which is blatantly

-6-
contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment."). We

identify the "version of events that best comports with the summary

judgment standard and then ask[] whether, given that set of facts,

a reasonable officer should have known that his actions were

unlawful." Morelli, 552 F.3d at 19. Here, the facts of the events

leading up to the execution of the search and arrest warrants are

undisputed and common to all defendants. Thereafter, the parties'

versions diverge, as do the actions of the two groups of defendants

and the claims of the individual plaintiffs.

In late July 2006, Bristol Police Department Sergeant

Michael Lewis and Officer Gordon Ramsay had probable cause to

believe that seventeen-year-old Michael Rothman had severely beaten

a young male victim, Brandon Stachulski, with an expandable

nightstick. They responded to the scene of the attack and

interviewed one of Stachulski's assailants, and Stachulski

identified Rothman as the other. Stachulski, who bore several

clearly visible marks that were consistent with the use of a

nightstick, told the officers where Rothman lived and "that he is

known to carry a firearm."

On these grounds, Sergeant Lewis applied for warrants to

arrest Rothman for second-degree assault and to search his

residence for the nightstick. The Plymouth District Court issued

-7-
the warrants at around 9:30 p.m. on August 1, 2006, authorizing

execution of the warrants "at any time of day or night."

That evening, Sergeant Lewis contacted defendant Robert

Cormier, Commander of defendant CNHSOU, to request help executing

the warrants. The CNHSOU is comprised of officers from the police

departments of several towns in central New Hampshire and is

trained for high-risk warrant executions. Lewis considered the

execution high-risk due to the "viciousness of the assault and the

allegations that Rothman was armed with an expandable baton and

possibly a gun." Lewis also considered "the size of the structure

occupied by Rothman and the likelihood that there would be other

persons present." Cormier ordered fifteen members of the CNHSOU to

meet at the Bristol police station.

After discussing the situation with Lewis, Cormier

decided to use the assembled CNHSOU team to execute the warrants,

entering the apartment before sunrise in order to catch Rothman by

surprise and "thereby reduce the possibility of injury to police

officers and third parties and to limit Rothman's opportunity to

escape and dispose of the nightstick." It is standard operating

procedure for CNHSOU members to carry automatic assault rifles,

with the safety catches off, and to wear military-style camouflage

uniforms and helmets.

During the preparations for the execution of the

warrants, two surveillance teams kept the apartment, which was on

-8-
the second floor of a two-family house, under observation; they saw

nothing of note. Sergeant Lewis knew that Rothman's stepfather,

plaintiff Thomas Mlodzinski, and his mother, plaintiff Tina

Mlodzinski, lived in the apartment, potentially with other family

members, and that they would likely be home at the time of the

execution of the warrants.

Just before 4 a.m., the CNHSOU officers used a battering

ram to break down the front door of the apartment. The sound of

the door breaking woke the sleeping plaintiffs. Upon being

awakened, Michael Rothman walked out of his room into the hallway,

where he encountered the officers and lowered himself to the floor

as ordered. The officers arrested him, dressed him in shorts, and

removed him from the unit. Rothman estimates that his exchange

with the officers lasted about fifteen seconds, and defendants

concede that he was arrested "immediately." He is not a plaintiff

in this case.

After this point, the parties sharply dispute the facts,

but we recite plaintiffs' version, as defendants have conceded--in

order to obtain these interlocutory appeals--that all facts and

inferences should be taken in plaintiffs' favor. We assume in

plaintiffs' favor that Rothman was removed prior to all or most of

the following events, although the evidence is unclear.

Plaintiff Jessica Mlodzinski, who is Rothman's sister and

was fifteen years old at the time, was alone in her bedroom and

-9-
also got out of bed in response to the noise. When she opened her

bedroom door, she encountered men in camouflage with assault rifles

yelling, "Get down, palms in air!" and "search warrant!" Defendant

Richard Arell of the CNHSOU was one of these men. He entered

Jessica's room, and she got down on the floor. Jessica testified

that while she was on the floor, she thought Arell said that she

could get up and she started to do so, rising into a crouched

position, but that Arell then put his hand on her back and

forcefully pushed her toward the floor screaming "Get down."2 She

lost her balance, and her left kneecap was severely injured as it

struck the floor.3

Back on the floor, Jessica was handcuffed behind her back

with metal handcuffs, either by Arell or by defendant Rick Tyler,

another CNHSOU officer who had entered the room upon hearing

Officer Arell yelling "Get down" and hearing Jessica scream.4

Jessica testified that she was detained on the floor with a gun

2
At another point in her deposition, Jessica described the
actions as being less forcible. But Thomas Mlodzinski also said he
saw her being shoved to the floor after trying to get up, and we
take that evidence in plaintiffs' favor.
3
Since the incident, Jessica's left knee has given out,
and she has had two surgeries and been in physical therapy. She
also has nightmares and has been diagnosed with Post Traumatic
Stress Disorder.
4
Although Jessica testified in her deposition that "the
first guy" to enter her room, Officer Arell, had placed the
handcuffs on her, Arell stated that he did not recall doing so, and
Officer Tyler took credit for doing it.

-10-
pointed at her head by Arell, and that during this period, she was

"just staying still and trying not to get shot."5 She estimates

that she was detained in this manner for seven to ten minutes,

after which she was brought downstairs to the living room.

In the meantime, a CNHSOU officer wearing military

fatigues and carrying an assault rifle had also entered the bedroom

of plaintiffs Tina and Thomas Mlodzinski. This officer was

defendant Chris Tyler. He ordered Thomas, who had gotten out of

bed when he heard the door breaking, to get on the floor. Thomas

and Tina testified that another CNHSOU officer in military

fatigues, who has not been identified by plaintiffs, handcuffed

Thomas behind his back with zip ties, kneeing him in the back in

the process.6 This officer held a gun to Thomas's head for what he

described as a "short time," after which he was taken into the

living room.

Tina testified that during this period, she was still in

bed--wearing only underpants and without a sheet covering her, as

it had been very hot that night--with a gun pointed at her head by

5
The officers deny their weapons were held to the heads of
plaintiffs and say they were always kept at a forty-five degree
angle to the floor, but we must take plaintiffs' version as true.
6
Defendant Chris Tyler denies that anyone kneed Thomas in
the back, and as plaintiffs have not identified this officer, they
do not assert any claim arising out of this alleged mistreatment.

-11-
a CNHSOU officer standing two feet away.7 That officer said to

her, "Down on the ground, palms in the air." But when Tina

explained that she did not have a top on, she was allowed to stay

on the bed, covering herself with a pillow. She was also

handcuffed behind her back with zip ties. She testified that the

officer "had a gun at my head all the time." In response to a

question about how long she was detained in this manner, she stated

that "it seemed like it was forever but [was] almost half [an]

hour." Eventually, a female officer associated with CNHSOU came

into the room, wrapped a sheet around Tina, and brought her

downstairs to the living room.8

When Tina arrived downstairs, Jessica and Thomas were

already there, as was Rothman's girlfriend, Amy Furmanick, and

7
The district court read the record as showing either that
this officer was Chris Tyler or that Chris Tyler was present and
allowed another officer to point a gun at Tina's head.
8
While defendants have asked us to accept Tina's testimony
that she was held for half an hour with a gun to her head, we note
that this account is inconsistent with the time frames used by her
husband and daughter and inconsistent with the testimony of Kate
Ranson, the female officer who accompanied her downstairs. Ranson
testified that after the door of the apartment was breached, she
went inside "within a minute or two" and went up the stairs. She
immediately saw an officer standing with Tina, who had a sheet
wrapped around her, and the officer directed her to hold the sheet
and take Tina to the living room, which she did.

-12-
their baby.9 Jessica estimated that her mother arrived three to

five minutes after she, Jessica, was brought down.

In the living room, officers from both the CNHSOU and

Bristol police were involved in plaintiffs' detention. There were

at least two members of the Bristol police, Sergeant Lewis and

Officer Woodward, and one armed CNHSOU officer, whose gun was

pointing towards the floor. Jessica testified that Lewis was

"ranting and raving" about the nightstick, that he told plaintiffs

that they were "under arrest until we get the stick," that he read

them their Miranda rights, and that he said, referring to Rothman

and Furmanick's baby, "We're going to take the baby away unless we

get some answers."10

Plaintiffs testified that they remained in handcuffs for

forty-five minutes to an hour while the house was searched and they

were questioned in the living room.11 During this time, Officer

Ramsay took Jessica and Amy into the kitchen at separate points to

ask them questions. Jessica estimated that her interview occurred

9
Amy was not handcuffed and is not a plaintiff. She
states that it was five to ten minutes from the time the police
entered the room she shared with Rothman until she was taken with
their baby down to the living room.
10
Sergeant Lewis denies making this threat and states that
he only questioned plaintiffs about the location of the nightstick.
11
Sergeant Lewis says that he ordered the handcuffs removed
when plaintiffs were brought to the living room and that plaintiffs
were not cuffed when he began talking to them. Other testimony
calls into question plaintiffs' estimate that they remained in
handcuffs for forty-five minutes to an hour.

-13-
approximately ten minutes after they were all assembled in the

living room.12 Both Tina and Jessica estimated that at least some

of the CNHSOU officers left thirty-five to forty minutes after they

were all assembled in the living room.

After approximately forty-five minutes, an unidentified

Bristol police officer removed Thomas's zip-tie handcuffs with a

pair of cutters, and Tina was allowed to remove hers. Thomas then

remained in the living room watching television, and Tina returned

to her bedroom and dressed. Tina then accompanied an officer in

army fatigue pants while he searched the apartment for five minutes

and the basement for ten minutes.

In the meantime, Jessica's handcuffs were also removed,

and she and Officer Ramsay accompanied Amy in going outside for a

cigarette. During this cigarette break, Ramsay allegedly told

Jessica and Amy that if the police could not find the nightstick,

they were going to take away Amy's baby. At some point, Tina came

onto the porch as part of her walk around the house with the

officer. She spent five to ten minutes talking with Jessica, who

told her about Rothman's fight.

At around 5 a.m., Tina provided a Bristol police officer

with a "voluntary statement," stating the limited information she

12
While Jessica testified that her handcuffs were still on
during this time, Officer Ramsay testified that he is "close to one
hundred percent sure" that Jessica was not handcuffed when he
brought her into the kitchen.

-14-
knew about Rothman's fight with Stachulski. Tina testified that

after she provided the statement, all of the remaining officers

left.13 This included Lewis, Woodward, and another Bristol officer,

as well as two CNHSOU officers. Tina and Jessica testified that

the "head guy" in the CNHSOU also did not leave until this point.14

In the end, the search uncovered three baggies with small

quantities of marijuana, a glass smoking pipe, and an eight-inch

hunting knife hidden under Rothman's bed. No gun or nightstick was

ever found. Rothman later acknowledged that he had hidden the

nightstick under the stairs outside the apartment prior to the

search, and that afterwards he disposed of it by throwing it into

a river.

III.

We review a district court's denial of summary judgment

on qualified immunity grounds de novo. Guillemard-Ginorio v.

Contreras-Gómez, 490 F.3d 31, 38 (1st Cir. 2007).

Under the doctrine of qualified immunity, police officers

are protected "from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

13
At another point in Tina's testimony, when asked what
time the final officers left, she estimated that it was around 6:30
a.m. This is inconsistent with her testimony that they left after
her 5 a.m. statement. In any event, there is no allegation that
anything about the search was unreasonable during this time.
14
Commander Cormier, the head of CNHSOU, testified that he
left "within a minute or two" of the main group of CNHSOU officers,
who he recalls leaving ten minutes after their initial entry.

-15-
constitutional rights of which a reasonable person would have

known." Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal quotation

marks omitted). They receive "immunity from suit and not a mere

defense to liability." Maldonado, 568 F.3d at 268.

Following Pearson, we employ a two-prong analysis in

determining whether a defendant is entitled to qualified immunity.

We ask "(1) whether the facts alleged or shown by the plaintiff

make out a violation of a constitutional right; and (2) if so,

whether the right was 'clearly established' at the time of the

defendant's alleged violation." Id. at 269. The second prong, in

turn, has two parts. We ask (a) whether the legal contours of the

right in question were sufficiently clear that a reasonable officer

would have understood that what he was doing violated the right,

and (b) whether in the particular factual context of the case, a

reasonable officer would have understood that his conduct violated

the right. Decotiis v. Whittemore, 635 F.3d 22, 36 (1st Cir.

2011). The salient question is whether the state of the law at the

time would have given a reasonably competent officer "clear notice

that what he was doing was unconstitutional." Id. at 37 (quoting

Costa–Urena v. Segarra, 590 F.3d 18, 29 (1st Cir. 2009)) (internal

quotation mark omitted).

Unlawfulness must be apparent at the time of the alleged

violation "in the light of pre-existing law." Anderson v.

-16-
Creighton, 483 U.S. 635, 640 (1987). "Immunity exists even where

the abstract 'right' invoked by the plaintiff is well-established,

so long as the official could reasonably have believed 'on the

facts' that no violation existed." Dirrane v. Brookline Police

Dep't, 315 F.3d 65, 69 (1st Cir. 2002). Although the Supreme Court

has made clear that officers can "be on notice that their conduct

violates established law even in novel factual circumstances,"

Hope v. Pelzer, 536 U.S. 730, 741 (2002), it has also stressed that

qualified immunity "is designed to protect 'all but the plainly

incompetent or those who knowingly violate the law,'" Morse v.

Frederick, 551 U.S. 393, 429 (2007) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)).

Immunity will not issue if "it is obvious that no

reasonably competent officer would have concluded" that an action

was lawful, but if "officers of reasonable competence could

disagree" on the lawfulness of the action, defendants are entitled

to immunity. Malley, 475 U.S. at 341. This test imposes an

objective standard of reasonableness.

IV.

We divide our analysis into two parts. We first consider

the Fourth Amendment claims brought by all three plaintiffs against

the Bristol police officers and Commander Cormier on the basis of

their prolonged detention in handcuffs after they were brought into

the living room. We then consider the Fourth Amendment and assault

-17-
and battery claims brought by Tina and Jessica against the CNHSOU

officers who detained them in their bedrooms prior to bringing them

down into the living room.

Although excessive force is by definition unreasonable

force, "reasonable people sometimes make mistaken judgments, and a

reasonable officer sometimes may use unreasonable force." Morelli,

552 F.3d at 24. When this occurs, "qualified immunity gives an

officer the benefit of a margin of error." Id.; see also Saucier

v. Katz, 533 U.S. 194, 205-06 (2001) ("Qualified immunity operates

. . . to protect officers from the sometimes 'hazy border between

excessive and acceptable force' . . . ." (quoting Priester v.

Riviera Beach, 208 F.3d 919, 926-27 (11th Cir. 2000))); Jennings v.

Jones, 499 F.3d 2, 18 (1st Cir. 2007) ("[O]fficers receive

protection if they acted reasonably in exercising unreasonable

force."). For plaintiffs to defeat a qualified immunity defense,

they must show "an incommensurate use of force beyond that needed

to establish a garden-variety excessive force claim and, further,

beyond the 'hazy border' noted by the Saucier Court." Morelli, 552

F.3d at 24 (quoting Saucier, 533 U.S. at 206).

Here, plaintiffs and defendants accept four basic

propositions of law as clearly established at the time of the

execution of the warrants. They agree that it was clearly

established that "officers executing a search warrant for

contraband have the authority 'to detain the occupants of the

-18-
premises while a proper search is conducted.'" Muehler v. Mena,

544 U.S. 93, 98 (2005) (quoting Michigan v. Summers, 452 U.S. 692,

705 (1981)). They acknowledge that the "authorization to detain an

occupant of the place to be searched is the authority to use

reasonable force to effectuate the detention." Id. at 98-99

(emphasis added). They accept that the use of handcuffs is

sometimes warranted to detain such occupants. Id. at 99. And they

agree that the duration of the use of handcuffs must be objectively

reasonable given the context. Id. at 100; see also Graham v.

Connor, 490 U.S. 386, 388 (1989).

A. The Bristol Police Officers and CNHSOU Commander Robert

Cormier

All three plaintiffs bring claims of unreasonable seizure

against the Bristol officers and Commander Cormier on the theory

that there was no justification for keeping them in handcuffs in

the living room for forty-five minutes to an hour while the police

searched the apartment. The qualified immunity question before us

is whether a reasonably competent officer could have thought, even

mistakenly, that in light of the clearly established law at the

time, it was reasonable to keep plaintiffs in handcuffs for this

duration while the search was executed.

Whether a seizure is reasonable depends on "the facts and

circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat

-19-
to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight." Graham,

490 U.S. at 396. "The 'reasonableness' of a particular use of

force must be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight." Id.

Defendants argue that given the injuries inflicted by

Rothman during the beating that precipitated the execution of the

warrants and the report to Sergeant Lewis that Rothman was known to

carry a firearm, a reasonable officer could have believed that

plaintiffs' continued detention would not outweigh the officers'

safety interests. Cf. Summers, 452 U.S. at 702-03 (stating that

minimizing the risk of harm to officers is a substantial

justification for detaining an occupant during a search). But this

argument glosses over the fact that Rothman had been removed from

the scene before his family was taken to the living room. Once he

was removed, any threat from him or that the three plaintiffs would

try to assist him in avoiding arrest was eliminated. The question

then is whether there were other valid reasons to keep plaintiffs

in handcuffs after Rothman's arrest and removal.

After Rothman was removed and most of the CNHSOU officers

left, it appears that six officers remained in the house. These

officers had the combined task of searching a three bedroom

apartment, including adjoining areas and a basement, and ensuring

that the occupants did not interfere with that search. This itself

-20-
was a good reason to keep the occupants together in one room. The

reasonableness of keeping them in handcuffs, however, is a

different matter.

Defendants rely heavily on Mena, which at the time was

the most recently established Supreme Court case on detention in

handcuffs during execution of a search warrant. In Mena, a

qualified immunity case, the Supreme Court held that there was no

Fourth Amendment violation when Iris Mena was detained in handcuffs

for the two- to three-hour duration of a warrant-authorized search

of her building for deadly weapons and evidence of gang membership

following a drive-by shooting. Mena, 544 U.S. at 95-96. It was

known that the suspect in the shooting, and possibly other gang

members, rented rooms in the building. Id.

The warrant in that case was executed by a SWAT team at

7 a.m. Id. at 96. Mena was found asleep in bed, and placed, at

gunpoint, in handcuffs. Id. Three other individuals living on the

premises were also put in handcuffs, and all four were moved to a

garage. Id. Although they were allowed to move about in the

garage, the four detainees remained cuffed. Id. They were guarded

by one or two officers, while the other officers performed the

search. Id.

The Court concluded that the "use of force in the form of

handcuffs to effectuate Mena's detention in the garage . . . was

reasonable because the governmental interests outweigh the marginal

-21-
intrusion." Id. at 99.15 The Court reasoned that it was "no

ordinary search" because it involved "a search for weapons" and

because "a wanted gang member reside[d] on the premises," making it

an "inherently dangerous" situation. Id. at 100. Under the

circumstances, it held, the governmental interests in detaining and

using handcuffs were "at their maximum." Id.

The Court recognized that handcuffing was a more

intrusive form of detention than that which it had previously

upheld and that Mena's claim was not about mere detention and

handcuffing, but rather about the two- to three-hour duration. But

it rejected her argument that this violated the Fourth Amendment.

Emphasizing that the case "involved the detention of four detainees

by two officers during a search of a gang house for dangerous

weapons," it held that the duration of the "detention in handcuffs

in this case does not outweigh the government's continuing safety

interests." Id.16

Appropriately, defendants here do not contend that Mena's

approval of the use of handcuffs for the two- to three-hour period

15
Because the Court held that there was no constitutional
violation, it did not reach the other prongs of the qualified
immunity analysis.
16
Mena also claimed that her detention continued after the
police completed the tasks incident to the search, and that this
violated the Fourth Amendment. The Supreme Court explained that it
would not address this contention because the court of appeals had
not done so. Muehler v. Mena, 544 U.S. 93, 102 (2005). Plaintiffs
here make no such claim.

-22-
of the search sets a per se rule that this is a permissible

duration. Rather, they argue that Mena was sufficiently like this

situation so that a reasonable officer could have thought his

actions constitutional under Mena, or at least debatably so.

Several features of the case support the objective reasonableness

of that conclusion.

Defendants could have reasonably thought that officer

safety concerns justified the use of the handcuffs to avoid any

danger, however small, that the detained occupants would use the

hidden nightstick or possibly a gun to harm them. See id. ("[T]his

safety risk inherent in executing a search warrant for weapons was

sufficient to justify the use of handcuffs . . . ."); see also

Summers, 452 U.S. at 702-03 ("The risk of harm to both the police

and the occupants is minimized if the officers routinely exercise

unquestioned command of the situation.").

Defendants also had a valid interest in conducting an

unimpeded search thoroughly and efficiently, and the use of

handcuffs assisted in this. The handcuffs prevented the occupants

of the house from interfering with the search, and from attempting

to dispose of the nightstick. See Mena, 544 U.S. at 98; see also

Summers, 452 U.S. at 702-03 (recognizing that the government's

interest in "the orderly completion of the search" and preventing

"frantic efforts to conceal or destroy evidence" may justify

-23-
detention). There is no allegation that plaintiffs were handcuffed

longer than it took to search the house.

A reasonable officer could have also taken into account

the fact that the plaintiffs did not--on this record--complain that

the handcuffs were painful. As Justice Kennedy explained in his

Mena concurrence, which he wrote to provide more guidance to police

and "help ensure that police handcuffing during searches becomes

neither routine nor unduly prolonged," Mena, 544 U.S. at 102

(Kennedy, J., concurring), there are special concerns raised when

handcuffs hurt the person cuffed:

If the search extends to the point when the
handcuffs can cause real pain or serious
discomfort, provision must be made to alter
the conditions of detention at least long
enough to attend to the needs of the detainee.
. . . The restraint should also be removed if,
at any point during the search, it would be
readily apparent to any objectively reasonable
officer that removing the handcuffs would not
compromise the officers' safety or risk
interference or substantial delay in the
execution of the search.

Id. at 103. Here, there is no evidence that any of the plaintiffs

made any complaints about the handcuffs. Indeed, the cuffs on Tina

apparently loosened so much that when the police said they would

cut them off, she said they did not need to. She apparently

slipped them off. The absence of complaints was a factor a

reasonable officer could have taken into consideration.

In light of Mena, we conclude that the question of

qualified immunity must be decided in favor of these officers.

-24-
They are entitled to immunity because it would have been fairly

debatable among reasonable officers whether detaining plaintiffs in

handcuffs for forty-five minutes to an hour during the search was

reasonable under the facts.

We say the question was fairly debatable because, as the

district court carefully noted, there are some obvious differences

from Mena which we believe reasonable officers should have

considered. First, the number of detainees did not, as in Mena,

outnumber the number of officers throughout the period of their

detention. Cf. id. (noting that the detainees outnumbered those

supervising them, "and this situation could not be remedied without

diverting officers" from the search). Second, plaintiffs' home was

not a gang house known to have firearms in it, but rather an

apartment known to house a family that included a fifteen-year-old

girl; other than Rothman, the remaining members of the family were

not known or even suspected to be violent. Cf. id. at 100

(majority opinion). Third, the object of the search was a

nightstick used when two teenagers attacked another one over a

girl, rather than a gun possessed by a gang member who had recently

been involved in a drive-by shooting; although the officers had a

fear that there was a firearm on the premises that could be used

against them, that fear did not have the same foundation as in

Mena. Cf. id. at 95-96. Based on these differences, a reasonable

-25-
officer might well have reached a different conclusion than

defendants did here.

However, these factors are not so substantial that no

competent officer could have thought that the use of handcuffs

during the search was permissible. "Even if this reasoning were

mistaken, it would not have been egregiously so and, accordingly,

qualified immunity is available." Wagner v. City of Holyoke, 404

F.3d 504, 509 (1st Cir. 2005); see also Malley, 475 U.S. at 341

(stating that qualified immunity is available when "officers of

reasonable competence could disagree").

We reverse the denial of immunity on all claims arising

out of this handcuffing and order entry of judgment granting

qualified immunity. To be clear, we are not holding that on

plaintiffs' version of the facts there was no constitutional

violation, but rather that if there was a violation, it was not so

clear as to give the officers fair warning.

B. CNHSOU Officers Richard Arell, Robert Cormier, Chris

Tyler, and Rick Tyler

Plaintiffs Jessica and Tina claim that they were

subjected to excessive force in violation of the Fourth Amendment,

as well as assault and battery, by the CNHSOU officers who detained

them in their bedrooms before bringing them down to the living

room. The question here is whether the force used in detaining

Jessica and Tina is consistent with the kind of judgment that a

-26-
reasonable police officer under the same or similar circumstances

might have made.

For Jessica, the claim of excessive force is based on the

fact that she was shoved to the floor by Officer Arell, severely

damaging her kneecap, and that she was then handcuffed behind her

back with metal handcuffs and detained with an assault rifle held

to her head for seven to ten minutes, far beyond the time it took

to locate, arrest, and remove Rothman. We do not separate these

facts out but rather take them as a whole.17 On plaintiffs' version

of events, Jessica, a fifteen-year-old girl, was in no way a threat

to the officers. She was not a suspect and made no efforts to

resist, but rather complied with all commands. And the officers'

actions are alleged to have caused her serious physical injury,

which required two surgeries and extensive treatment, as well as

psychological injury, including Post Traumatic Stress Disorder.

First, the facts are sufficient to support a finding that

a Fourth Amendment violation occurred. Second, taking all facts

and inferences in Jessica's favor, we conclude, as did the district

court, that the CNHSOU officers involved are not on this state of

17
Defendants attempt to carve out the portion of these
events pertaining to Jessica being "forced" back down to the floor
based on her testimony, at deposition, that the hand placed on her
back did not "shove me to the floor." But she repeatedly said that
the officer put his hand on her back and "pushed" or "shoved" her
forward, causing her to hit the floor, and that he "should have
never laid a hand on" her. Defendants cannot have it both ways; in
order to have interlocutory appellate review, they have accepted
all facts in plaintiffs' favor.

-27-
the record entitled to immunity. The law was sufficiently well

established to provide the officers with fair warning that the

force they are alleged to have used on Jessica was excessive given

the circumstances. While the "calculus of reasonableness must

embody allowance for the fact that police officers are often forced

to make split-second judgments . . . in circumstances that are

tense, uncertain, and rapidly evolving," Graham, 490 U.S. at

396-97, the need to subdue Jessica and to keep a weapon trained at

her head while she was in metal handcuffs was minimal at best, and

certainly did not last for seven to ten minutes.

Although not "every push or shove" will reach the level

required for an actionable excessive force claim, Alexis v.

McDonald's Rests. of Mass., Inc., 67 F.3d 341, 352 (1st Cir. 1995),

no reasonably competent officer would have thought the totality of

force used against Jessica was permissible given the facts of her

situation, taking all inferences in plaintiffs' favor. Cf.

Morelli, 552 F.3d at 24 (finding that no reasonable officer could

have thought it reasonable to yank the arm of an unarmed and

non-violent person, suspected only of the theft of $20, and pin her

against a wall for three to four minutes with sufficient force to

tear her rotator cuff).

A reasonably competent officer also would not have

thought that it was permissible to point an assault rifle at the

head of an innocent, non-threatening, and handcuffed fifteen-year-

-28-
old girl for seven to ten minutes, far beyond the time it took to

secure the premises and arrest and remove the only suspect. See,

e.g., Holland ex rel. Overdoff v. Harrington, 268 F.3d 1179,

1192-93 (10th Cir. 2001) (denying qualified immunity to officers

who detained children, including teenagers, at gunpoint after

gaining complete control of the situation); McDonald ex rel.

McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (denying

qualified immunity to officer who during search of residence held

gun to head of nine-year-old and threatened to pull trigger); see

also Baker v. Monroe Twp., 50 F.3d 1186, 1192-94 (3rd Cir. 1995)

(reversing summary judgment on grounds that constitutional

violation could be found if officers had, as alleged, pointed guns

at fifteen- and seventeen-year-olds and handcuffed some of them for

up to twenty-five minutes when they were merely visiting house that

was being searched). Even without a First Circuit case presenting

the same set of facts, defendants would have had fair warning that

given the circumstances, the force they are alleged to have used

was constitutionally excessive. Cf. Tekle v. United States, 511

F.3d 839, 848 (9th Cir. 2007) ("Although there may not be a prior

case specifically prohibiting the use of handcuffs and weapons by

more than twenty officers to subdue an unarmed eleven-year-old boy

who is not suspected of any wrongdoing and is cooperating with the

officers, '[a]ny reasonable officer should have known that such

conduct constituted the use of excessive force.'" (alteration in

-29-
original) (quoting Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052, 1061 (9th Cir. 2003))).

Defendants have not even come forward with a

justification for pointing a gun at Jessica's head.18 Their defense

is that they did not use the force they are alleged to have used.

Assuming Jessica's version of the relevant facts to be true, we

cannot say that a reasonable officer would have used such force.

On Jessica's account, defendants' actions are "outside the universe

of protected mistakes." Morelli, 552 F.3d at 24.

As for Tina, her case turns on her claim that an assault

rifle was pointed to her head for up to half an hour. In that

period of time, her son was removed from the house, her husband was

taken downstairs, and she was handcuffed and lying partially nude

in bed. While the CNHSOU officers did initially have to make split

second decisions to assess Tina's threat level and the possible

need for restraint, that does not characterize the entire period in

the bedroom, which she says was half an hour. Rather, it quickly

became clear, on plaintiffs' version of the facts, that Tina was

not the suspect, that she was not trying to resist arrest or flee,

that she was not dangerous, and that she was not trying to dispose

18
Further, as to the handcuffing, one of the CNHSOU
officers who participated in executing the warrants and is now an
assistant commander testified that in executing a warrant, there
would be no need--and it would be against his training--to handcuff
either a fifteen-year-old girl or an adult woman with a sheet
wrapped around her, unless she was a suspect or posed a threat.

-30-
of contraband or weapons. Further, she was completely compliant

with all orders. These are all relevant factors under Graham that

undercut any claim that defendants acted reasonably.

The circumstances of Tina's detention in bed are unlike

those in which a reasonable officer could have thought that keeping

a gun pointed at her head was lawful. Cf. Los Angeles Cnty. v.

Rettele, 550 U.S. 609, 610 (2007) (finding qualified immunity on

the grounds that there was no constitutional violation when police

entered bedroom with guns drawn, ordered plaintiffs out of bed,

forced them to stand naked at gunpoint for one to two minutes, and

detained them for a few more minutes, before realizing that they

had made a mistake and leaving the house). There was no reasonable

danger that Tina, who was not a suspect and was nearly naked in bed

and without a sheet, was concealing a weapon. Cf. id. at 614. The

officers were not carrying out a warrant for a group of individuals

who might have been engaged in joint criminal activity with

Rothman. Cf. id. at 610. And the gun pointed at Tina was not, on

her version, lowered as soon as it was clearly safe to do so. Cf.

id. at 615.

Defendants had fair notice that under the circumstances

alleged, the detention of Tina with an assault rifle at her head

was objectively unreasonable. See, e.g., Baird v. Renbarger, 576

F.3d 340, 347 (7th Cir. 2009) (denying qualified immunity to

officer who pointed gun at plaintiff when "there was no hint of

-31-
danger"); Jacobs v. City of Chicago, 215 F.3d 758, 773-74 (7th Cir.

2000) (denying qualified immunity to officer who pointed a gun at

an elderly man's head for ten minutes after realizing that he was

not the desired suspect and presented no resistance or threat); see

also Harrington, 268 F.3d at 1193 ("Where a person has submitted to

the officers' show of force without resistance, and where an

officer has no reasonable cause to believe that person poses a

danger to the officer or to others, it may be excessive and

unreasonable to continue to aim a loaded firearm directly at that

person, in contrast to simply holding the weapon in a fashion ready

for immediate use."). As with Jessica, defendants offer no

justification for holding an assault rifle to Tina's head.

The CNHSOU officers also argue that the doctrine of

official immunity protects them from Jessica's and Tina's related

state law assault and battery claims. We reject this argument for

the same reasons identified by the district court. See Mlodzinski,

731 F. Supp. 2d at 183. Under the doctrine of official immunity,

"municipal police officers are immune from personal liability for

decisions, acts or omissions that are: (1) made within the scope of

their official duties while in the course of their employment; (2)

discretionary, rather than ministerial; and (3) not made in a

wanton or reckless manner." Everitt v. Gen. Elec. Co., 932 A.2d

831, 845 (N.H. 2007). Given defendants' failure to establish that

a reasonable officer in their position would have believed his

-32-
conduct was consistent with Jessica's and Tina's Fourth Amendment

rights, they have also failed to establish that they did not act in

a wanton or reckless manner. Cf. Binay v. Bettendorf, 601 F.3d

640, 652-54 (6th Cir. 2010) (denying official immunity from assault

and battery claim arising out of excessive force during arrests for

essentially the same reasons that it denied qualified immunity from

overlapping Fourth Amendment claim).

A more fleshed-out record on summary judgment than the

bare-bones details with which we have been presented could well

have affected the outcome of each of the immunity issues. For

example, the situation would be very different if, given the

execution of these warrants, Tina had been detained with a weapon

pointed at her for only a very short period needed while she was

being cuffed, her husband was being escorted out of the room, and

her son was being apprehended. Our denial of immunity on

plaintiffs' version of the events leaves these claims for trial,

where defendants may try to persuade the jury that they did not do

what they are accused of doing.

V.

We affirm in part and reverse in part and remand for

further proceedings consistent with this opinion.

One-half of the costs are awarded to the plaintiffs, to

be taxed against the CNHSOU defendants.

-33-