Conlogue v. Hamilton

United States Court of Appeals
For the First Circuit

No. 17-2210

DANARAE CONLOGUE, as personal representative
of the Estate of LEWIS N. CONLOGUE,

Plaintiff, Appellant,

v.

SCOTT HAMILTON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Thompson, Selya, and Lipez,
Circuit Judges.

Hunter J. Tzovarras for appellant.
Jonathan R. Bolton, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, and Cathy Roberts, Assistant
Attorney General, were on brief, for appellee.

October 11, 2018
 SELYA, Circuit Judge. This tragic case involves the

fatal shooting of an armed civilian by a state trooper following

a prolonged standoff. The appeal turns on an application of the

doctrine of qualified immunity — a doctrine that protects public

officials (including police officers) from civil liability while

acting under color of state law, save only for officials who act

incompetently or in disregard of clearly established legal

principles. See Malley v. Briggs, 475 U.S. 335, 341 (1986). The

court below painstakingly catalogued the relevant facts,

determined in a thoughtful rescript that the defendant was entitled

to qualified immunity, and entered summary judgment accordingly.

See Conlogue v. Hamilton, No. 1:16-cv-296, 2017 WL 5339895, at *2-

8 (D. Me. Nov. 13, 2017). After careful consideration, we affirm.

I. BACKGROUND

When reviewing the entry of summary judgment, our task

demands that we view the facts in the light most favorable to the

non-movant (here, the plaintiff). See Savard v. Rhode Island, 338

F.3d 23, 26 (1st Cir. 2003) (en banc). Here, however, the raw

facts are largely undisputed. We set them forth below, urging the

reader who hungers for more exegetic detail to consult the district

court's rescript.

This case has its genesis in a set of facts that played

out on August 3, 2014, in front of a deserted restaurant in the

bucolic town of LaGrange, Maine. At 3:41 p.m., DanaRae Conlogue

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called 911 to report that her husband, Lewis N. Conlogue, was

threatening suicide. She related that he had gotten out of their

parked vehicle, put a gun to his head, and warned her to avert her

eyes. Officers from the Penobscot County Sheriff's Office and the

Maine State Police responded quickly to the scene. They took Mrs.

Conlogue to a place of safety, established a command post, secured

the perimeter, and assigned officers to strategically located

positions.

Thomas Fiske, a Maine state trooper, arrived at around

4:17 p.m. and positioned himself with two other troopers on the

lawn of a residence across the street from the restaurant (some

200 feet away). Defendant-appellee Scott Hamilton, a sergeant and

a member of the state police's tactical team, arrived shortly

thereafter. Hamilton had been specially trained in the use of

deadly force in high-risk situations. From his vantage point, he

could not see the other troopers but learned of their position

from communications broadcast over a police-operated radio.1

Hamilton also learned that Conlogue was brandishing a semi-

automatic handgun — a fact that helped Hamilton to calibrate the

level of threat posed.

1
Throughout the remainder of the encounter, Fiske and the
other officers were in constant radio communication. While
Hamilton was not himself equipped with a radio, he was situated
next to another trooper, Taylor Dube, who was so equipped. Thus,
Hamilton heard all the relevant radio traffic.

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 For the first hour and twenty minutes, Conlogue remained

mostly stationary, sitting on a rock with his gun pointed at his

head. At approximately 5:02 p.m., Fiske reported that Conlogue

had stood up and begun pacing around lethargically. In response

to this report, Hamilton changed his position so that he could

more clearly observe Conlogue through the magnifying scope

attached to his rifle. Fiske then reported over the radio that

Conlogue appeared to be assessing the scene: he was looking 360

degrees around his position and (according to Fiske) seemed to be

gaining strength and momentum. At this juncture, another officer

— William Sheehan of the Sheriff's Office — initiated direct

communication with Conlogue.

Sergeant Sheehan, using a loudspeaker, repeatedly asked

Conlogue to put down his weapon, assuring him that the officers

were worried about him and were there to help. When Conlogue

responded by yelling obscenities, the officers knew that Conlogue

could hear Sheehan's words. Even so, Sergeant Sheehan's warnings

seemed only to escalate the tension. Conlogue went to his car,

retrieved a knife, placed it in his back pocket, moved back toward

the troopers, shaped his fingers like a gun, and pointed the

simulated gun at Fiske and the other troopers.

Next, Conlogue approached the road that separated him

from the troopers. He paused to draw a line in the dirt, and

Sheehan assured him that no officers would cross that line.

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Conlogue then moved closer to the troopers and drew another line.

Fiske became concerned for his own safety — a fear that he

communicated to the other officers over the radio.

Despite continued warnings to put down his weapon and

cooperate with the police, Conlogue refused to comply. He

displayed a fully loaded magazine, placed the magazine into his

gun, and pointed it at a forty-five degree angle over the heads of

Fiske and the two other troopers. This action elicited a spate of

warnings from Sheehan. Undeterred, Conlogue alternated between

pointing the gun at his own head and pointing it in the direction

of the troopers (at an angle of roughly forty-five degrees).

When Conlogue flexed his wrist and extended the gun in

front of his body, Fiske immediately related over the radio that

the gun was "[a]bout forty-five degrees . . . over our heads" and

added that "I'm not comfortable." To Hamilton, Fiske's tone

conveyed fear.2 Sheehan spoke forcefully to Conlogue, demanding

that "[y]ou need to put the gun down. You need to put the gun

down right now!" Hamilton neither saw nor heard anything

indicating that Conlogue was of a mind to comply. After waiting

2Hamilton's assessment was on the mark. In a sworn
declaration filed in support of Hamilton's motion for summary
judgment, Fiske vividly described his situation: "Mr. Conlogue
then began flexing his wrist, moving the barrel of the gun down
closer to my head, and then back up. When he lowered the gun, I
was able to see down the barrel."

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eleven seconds, Hamilton fired a single shot that struck and killed

Conlogue.

We fast-forward to May of 2016 when Mrs. Conlogue, in

her capacity as personal representative of her husband's estate,

brought suit in a Maine state court. Her complaint asserted claims

for excessive force under 42 U.S.C. § 1983 and the Fourth

Amendment, together with several causes of action under state law.

Citing the existence of a federal question, Hamilton removed the

suit to the federal district court. See 28 U.S.C. §§ 1331,

1441(a).

The parties engaged in pretrial discovery. Although the

complaint originally named other defendants in addition to

Hamilton, those defendants were dropped along the way. Following

the completion of discovery, the parties (including Hamilton, as

the sole remaining defendant) filed cross-motions for summary

judgment. Hamilton's motion raised, inter alia, a qualified

immunity defense. After marshaling the facts and carefully

surveying the applicable case law, the district court found no

precedent suggesting "that an officer's use of deadly force is

objectively unreasonable when a person points a loaded gun at a

forty-five degree angle over the heads of other officers after

being warned repeatedly to drop the gun." Conlogue, 2017 WL

5339895, at *11. In addition, the court concluded that Hamilton

"reasonably determined that Conlogue posed an immediate threat to

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the troopers when he pointed his gun over their heads, and that no

other remedial action was feasible given the tense, rapidly

evolving situation and the various failed attempts at de-

escalation." Id. at *12. Consequently, the court held that

Hamilton was entitled to qualified immunity on the federal claims

and subsequently extended that reasoning to justify the dismissal

of the state-law causes of action as well. See id. Having laid

this foundation, the court granted Hamilton's motion for summary

judgment and denied the plaintiff's cross-motion. See id. at *13.

This timely appeal ensued.

II. ANALYSIS

We review an order granting or denying summary judgment

de novo. See McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017),

cert. denied, 138 S. Ct. 1311 (2018). The pendency of cross-

motions for summary judgment does not alter the standard of review.

See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). Because

the plaintiff challenges only the grant of summary judgment on her

federal claims, we limit our analysis accordingly.

Qualified immunity inoculates government officials from

civil liability based on their discretionary actions and decisions

which, although injurious, "do[] 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).

As we have acknowledged, "[t]he doctrine's prophylactic sweep is

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broad." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). We

view claims of qualified immunity through the lens of objective

reasonableness. So viewed, only those officials who should have

known that their conduct was objectively unreasonable are beyond

the shield of qualified immunity and, thus, are vulnerable to the

sword of liability. See id.

The immunity afforded by this doctrine is particularly

important for police officers in order not to "unduly inhibit the

assiduous discharge of their dut[y]" to protect the community at

large. Savard, 338 F.3d at 27. In such cases, the reasonableness

calculus "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 — about the amount

of force that is necessary." Graham v. Connor, 490 U.S. 386, 396-

97 (1989).

Where, as here, a defendant invokes the defense of

qualified immunity, the necessary analysis is two-pronged. See

McKenney, 873 F.3d at 81. The court must determine whether the

defendant violated the plaintiff's constitutional rights. See id.

It also must determine whether the allegedly abridged right was

"clearly established" at the time of the defendant's claimed

misconduct. Id. Although this description implies a set sequence,

these prongs "need not be taken in order." Alfano, 847 F.3d at 75

(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). A court

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is well within its authority to "alter the choreography in the

interests of efficiency" beginning — and perhaps ending — with the

second prong. Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir.

2015). So it is here.

The second prong (whether the law was clearly

established at the time of the incident) is itself divisible into

two inquiries. First, the plaintiff must identify either

controlling authority or a consensus of persuasive authority

sufficient to put an officer on notice that his conduct fell short

of the constitutional norm. See McKenney, 873 F.3d at 81. Second,

the plaintiff must show that an objectively reasonable officer

would have known that his conduct violated the law. See id.

Because many law enforcement encounters arise from confusing,

high-stakes circumstances, this second inquiry provides some

breathing room for a police officer even if he has made a mistake

(albeit a reasonable one) about the lawfulness of his conduct.

See Jennings v. Jones, 499 F.3d 2, 19 (1st Cir. 2007) (noting that

this inquiry "affords protection to officers who reasonably, yet

mistakenly, employ excessive force in violation of the Fourth

Amendment").

These two parts of the second prong need not be

considered in sequence. After all, an officer seeking qualified

immunity may be entitled to its protective shield based solely on

the result of the second inquiry. Put simply, even if the

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officer's conduct violated a consensus of authority, he remains

immune from liability so long as an objectively reasonable officer

would not have known that his actions violated the law.

Even if we assume arguendo that Hamilton's action was

contrary to a consensus of controlling authority, we are satisfied

that an objectively reasonable officer standing in Hamilton's

shoes would have thought it appropriate to deploy deadly force

against an armed man who, after a nearly three-and-one-half-hour

standoff in which he was repeatedly warned to drop his weapon,

persisted in pointing a loaded semi-automatic firearm narrowly

above the heads of three officers and within easy firing range.

We explain briefly.

We recognize, of course, that our analysis "must be

particularized to the facts of the case." McKenney, 873 F.3d at

82 (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per

curiam)). "Even so, there need not be a case directly on point"

for us to draw a conclusion as to the reasonableness of the

defendant's conduct. Id. at 82-83. Some general standards serve

as useful guideposts.

To begin, the case law makes pellucid that two principal

requirements must be satisfied before a police officer can lawfully

use deadly force. For one thing, "the use of deadly force is

constitutional only if, at a minimum, a suspect poses an immediate

threat to police officers or civilians." Jarrett v. Town of

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Yarmouth, 331 F.3d 140, 149 (1st Cir. 2003) (per curiam). For

another thing, the suspect ordinarily must be warned (at least

when a warning is feasible) before a police officer may use deadly

force. See McKenney, 873 F.3d at 82. Although there is no

standardized script for such a warning, the key is that the warning

must be adequate in light of the circumstances then obtaining.

See Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23

(1st Cir. 2005).

In the case at hand, the undisputed facts make it

abundantly clear both that it was reasonable for Hamilton to

believe that Conlogue was an imminent threat to others and that he

was repeatedly warned to drop his weapon. The standoff was

prompted by a call for help from Conlogue's wife (the plaintiff),

who reported that he was threatening his own life and that he

happened to be "very good with guns." The officers who responded

were able to confirm a portion of this worrisome account: Conlogue

was seated near his parked car with a semi-automatic handgun

pointed at his head.

Although Conlogue appeared at this time to be a threat

only to himself, the situation soon changed. Conlogue began to

stir and Sheehan admonished him to put down his weapon. Conlogue's

reply was profane, and he proceeded to retrieve a knife from his

car.

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 The situation continued to deteriorate. Conlogue made

gun-like gestures with his hand, pointing at Fiske and two other

troopers. He raised three fingers to confirm that he had three

men in sight. Sheehan continued to implore Conlogue to disarm,

but Conlogue turned a deaf ear to these serial warnings. Next,

Conlogue displayed a fully loaded magazine and inserted it into

his gun. He then raised the gun, and waved it back and forth,

aiming alternately at his own head and at the troopers.

The record makes manifest that Hamilton was keenly aware

of the threat that Conlogue posed. So, too, he was aware that

Conlogue had been told several times to drop his weapon but had

refused to comply. From everything that Hamilton saw and heard,

Conlogue was continuing to escalate the confrontation — arming

himself with a knife, making threatening gestures, moving closer

to the troopers, and pointing his gun in their direction. When

Fiske reported that Conlogue was inching closer to the troopers

and pointing his gun in their direction, Hamilton heard what he

reasonably perceived as fear in Fiske's voice. Hamilton had reason

to believe that Fiske himself was at least partially exposed,

making Fiske more vulnerable were Conlogue to open fire. After

Conlogue failed to heed yet another warning to drop his gun and

Fiske announced his growing discomfort, Hamilton fired the fatal

shot.

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 Two other officers later testified that, when Hamilton

fired, they too were preparing to shoot. This circumstance was

not known to Hamilton and, therefore, could not have been relevant

to his decision — but it is certainly relevant to us. In

considering whether an objectively reasonable police officer would

have used deadly force, the fact that two other police officers on

the scene also were about to fire supports the objective

reasonableness of Hamilton's decision. See Ciolino v. Gikas, 861

F.3d 296, 304 (1st Cir. 2017) (considering, as part of

reasonableness inquiry, contemporaneous perceptions of other

officers on the scene).

In our view, these facts compel a finding that Hamilton

was entitled to qualified immunity. We cannot say that an

objectively reasonable police officer standing in Hamilton's shoes

would have thought it a violation of the law to deploy deadly force

in these highly charged circumstances. Under these circumstances,

Hamilton reasonably perceived Conlogue to be an imminent threat,

with no less drastic means of remediation at hand.

The plaintiff resists this conclusion. Although the

plaintiff acknowledges the undisputed fact that Hamilton "was told

right before firing the shot that [Conlogue] had the gun pointed

in the air over the officers' heads," she nevertheless asserts

that the use of deadly force was objectively unreasonable. To

this end, she argues that Hamilton could not have regarded Conlogue

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as a threat to anyone other than himself because Hamilton "had no

information [Conlogue] ever pointed the handgun at any of the

officers."

This argument is belied by the facts. Conlogue's gun

was pointed in the direction of the troopers — and the fact that

he was aiming it over their heads is cold comfort. Practically

speaking, there is very little difference in the threat level

between a gun aimed directly at a person's head and a gun aimed at

a forty-five degree angle over the person's head. The plaintiff's

argument is also belied by the cases that she cites. Those cases

say quite clearly that the use of deadly force may be reasonable

if an individual is holding the weapon in a way that threatens

others on the scene. See, e.g., Cooper v. Sheehan, 735 F.3d 153,

159 (4th Cir. 2013) (explaining that "deadly force may only be

used by a police officer when, based on a reasonable assessment,

the officer or another person is threatened with the weapon"

(emphasis in original)); id. at 159 n.9 (noting that an armed

suspect may pose a threat even without "pointing, aiming, or firing

his weapon"); see also Napier v. Town of Windham, 187 F.3d 177,

187-88 (1st Cir. 1999) (concluding that officer need not have gun

pointed directly at him in order reasonably to fear danger). It

follows, we think, that when the plaintiff suggests that a gun

must be pointed directly at an officer in order to be threatening,

she is simply wrong.

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 In a similar vein, the plaintiff suggests that the use

of lethal force was objectively unreasonable because Conlogue was

never explicitly warned that "he would be shot if he failed to put

down the weapon." This suggestion lacks force. When possible, a

warning is required before a police officer resorts to the use of

deadly force. Here, however, Conlogue received several clear and

timely warnings to drop his weapon, and he chose to ignore them.

No more was exigible. See Tennessee v. Garner, 471 U.S. 1, 11-12

(1985) (instructing "if the suspect threatens the officer with a

weapon . . . deadly force may be used . . . if, where feasible,

some warning has been given" (emphasis supplied)). As long as the

warning is clear and timely — which was the case here — police

officers need not use any particular set of magic words.3 When —

as in this case — a gun is pointed toward officers during a standoff

between an armed man and law enforcement, a warning to disarm would

seem to imply that deadly force may be used if the warning is not

heeded.

Taking a somewhat different tack, the plaintiff suggests

that the length of the standoff (approximately three-and-one-half

hours) cuts against a finding of reasonableness. We do not agree.

3 This holding is consistent with our decision in McKenney,
in which we stated that "some sort of warning" should be given
before using deadly force. 873 F.3d at 82. Our decision there
did not impose a requirement that the warning specify the
consequences of non-compliance, nor do we impose such a requirement
today.

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Hamilton knew that the police had spent considerable time trying

to diffuse the situation, allowing Conlogue ample opportunity to

heed their warnings. Yet, Conlogue spurned a series of warnings,

and his behavior throughout the encounter was unpredictable,

culminating in the pointing of his gun in the direction of

officers. Under these circumstances, the length of the standoff

does not militate against a finding of objective reasonableness.

Cf. Young, 404 F.3d at 23 (finding it unreasonable to shoot a

suspect "extraordinarily quickly" without an "adequate warning").

As a fallback, the plaintiff argues that our decision in

McKenney is a testament to Hamilton's lack of objective

reasonableness. This argument misreads McKenney. There, we

considered whether a police officer was entitled to qualified

immunity when he fatally shot a suicidal man who was walking slowly

in his own driveway, dangling a gun at his side and not pointing

it at anyone. See 873 F.3d at 84. The officer deployed deadly

force a full six minutes after the decedent ignored a warning to

drop his weapon. See id. We found that the officer was not

entitled to qualified immunity, basing that conclusion on the

particular facts of the case, including the absence of any real

threat of imminent harm to others. See id. at 81-83.

The case at hand bears some superficial similarities to

McKenney, but the two cases are readily distinguishable. Unlike

in McKenney, the gun-wielder's behavior in this case reasonably

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could be interpreted as constituting an imminent threat to others.

After all, immediately before Hamilton fired, Conlogue pointed his

loaded firearm just above the heads of three police officers.

Previously, Conlogue had made threatening gestures to these

officers, pointing his hand in the shape of a gun at them. Nothing

of this sort occurred in McKenney.

There are also important temporal differences between

the two cases. In McKenney, six minutes elapsed between when the

decedent raised the gun and when he was shot. See id. at 84. In

the interim, he had lowered the gun so that it was pointing toward

the ground. See id. Here, in contrast, Conlogue raised the gun

and pointed it in the troopers' direction only moments before he

was shot.

As a counterweight, the plaintiff notes that the

McKenney court spoke of the importance of physical proximity to

the reasonableness calculus, see id. at 82, and questions what she

perceives as a lack of proximity here. Proximity, though, is a

relative measurement. Certainly, the presence of a pointed firearm

changes the calculation. When an individual is pointing a loaded

firearm, anyone within firing range is in proximity to the life-

threatening danger.

To say more about the comparison between this case and

McKenney would be supererogatory. We conclude, without serious

question, that these cases are not fair congeners. Thus, McKenney

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in no way bars a finding that Hamilton's actions were objectively

reasonable.4

Of course, these two cases do share a tragic result —

tragic for the person who lost his life, for the family left

behind, and for the police officer who fired the fatal bullet. In

the last analysis, though, each case is dependent on its own facts.

The doctrine of qualified immunity must flex to those tense,

uncertain, and often life-threatening situations in which an

officer may find himself embroiled. Because there is no principled

way we can say that an objectively reasonable officer in Hamilton's

position would have known that he was violating the law by

deploying deadly force against Conlogue, the district court did

not err in cloaking Hamilton in the mantle of qualified immunity.

III. CONCLUSION

We need go no further. As we said at the outset, this

is a tragic case. But the facts of record make pellucid that the

police were faced with a nightmare scenario — a scenario in which

an armed and disturbed individual wholly disregarded serial

entreaties to disarm and engaged in a course of conduct that

4We add a coda. In McKenney, we observed that "federal
courts have afforded a special solicitude to suicidal individuals
in lethal force cases when those individuals have resisted police
commands to drop weapons." 873 F.3d at 82. But such solicitude
has its limits and it is afforded only to suicidal individuals who
"pose no real security risk to anyone other than themselves." Id.
Here, Conlogue's actions threatened not only his own life but also
— as time went on — the lives of officers on the scene.

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gradually elevated the level of threat. Tension mounted over time,

and when the armed individual took actions that placed officers at

imminent risk of serious bodily harm, Hamilton — reasonably

concluding that no less drastic means of remediation were feasible

— fired the fatal shot. Under the totality of the circumstances,

we conclude that the district court's entry of summary judgment in

Hamilton's favor on the basis of qualified immunity must be

Affirmed.

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