Hegarty v. Somerset County

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           
                                                     

No. 94-1473

            JOHN M. HEGARTY AS PERSONAL REPRESENTATIVE
              OF THE ESTATE OF KATHERINE A. HEGARTY,

                       Plaintiff, Appellee,

                                v.

            SOMERSET COUNTY, RENE GUAY, WILFRED HINES,
            THOMAS GIROUX, JR., WILLIAM CRAWFORD, JR.,

                     Defendants, Appellants.

                                           
                                                     
No. 94-1474

            JOHN M. HEGARTY AS PERSONAL REPRESENTATIVE
              OF THE ESTATE OF KATHERINE A. HEGARTY,

                       Plaintiff, Appellee,

                                v.

                     SOMERSET COUNTY, ET AL.,

                     Defendants, Appellants.

                                           
                                                     
No. 94-1517

              JOHN M. HEGARTY, INDIVIDUALLY AND AS 
            PERSONAL REPRESENTATIVE OF THE ESTATE OF 
                      KATHERINE A. HEGARTY,

                      Plaintiff, Appellant,

                                v.

                     SOMERSET COUNTY, ET AL.,

                      Defendants, Appellees.

                                           
                                                     


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                               

                                           
                                                     

                              Before

                       Cyr, Circuit Judge,
                                                   

                  Bownes, Senior Circuit Judge,
                                                        

                 and McAuliffe,* District Judge.
                                                         

                                           
                                                     

   William R. Fisher,  with whom Monaghan,  Leahy, Hochadel &  Libby
                                                                              
was  on  brief for  appellants Guay,  Hines,  Giroux and  Crawford and
defendant-appellee Spencer Havey.
   Frederick J. Badger, Jr., with whom Ann M. Murray and Richardson,
                                                                              
Troubh & Badger were on brief for appellant Wright.
                       
   Julian  L.  Sweet,  with whom  Jeffrey  A.  Thaler  and Berman  &
                                                                              
Simmons, P.A. were on brief for plaintiff/appellant Hegarty.
                     

                                           
                                                     

                           May 17, 1995
                                           
                                                     

                  
                            

   *Of the District of New Hampshire, sitting by designation.

                                2


          CYR,  Circuit Judge.  On May 15, 1992, state and county
                    CYR,  Circuit Judge.  
                                       

law enforcement officers  forcibly entered a remote  cabin in the

Maine woods, without a  warrant, and mortally wounded plaintiff's

decedent, Katherine  A. Hegarty,  while attempting to  arrest her

for recklessly endangering the safety of four campers.  Plaintiff

John M.  Hegarty initiated the present action in federal district

court for compensatory and punitive damages against the defendant

officers  and  their  respective supervisors,  based  on  alleged

violations of the Hegartys'  statutory and constitutional rights.

See 42 U.S.C.   1983 (1992);  Me. Rev. Stat. Ann. tit. 5,    4682
             

(1992).   After  rejecting their  qualified immunity  claims, the

district  court  determined  that  the  defendant  officers  were

potentially liable for punitive  damages, and the officers initi-

ated  an interlocutory appeal.  Plaintiff John M. Hegarty in turn

cross-appealed  from  district   court  orders  granting  summary

judgment in favor  of Somerset  County Sheriff  Spencer Havey  on

qualified  immunity grounds  and disallowing  plaintiff's section

1983 claim for  compensatory damages for loss  of spousal consor-

tium.

                                I
                                          I

                           BACKGROUND1
                                     BACKGROUND
                                               

A.   The Warrantless Entry
          A.   The Warrantless Entry
                                    

                                                                 
                                                                           

     1The relevant facts are related in  the light most favorable
               1
to  the plaintiff, the party resisting  summary judgment.  Velez-
                                                                           
Gomez v.  SMA Life Assurance  Co., 8 F.3d  873, 874-75 (1st  Cir.
                                           
1993).  

                                3
                                          3


          During the  morning of  the fateful day,  two vehicles,

containing four  campers, entered  through a gate  onto woodlands

owned  by a  paper company  in Jackman,  Maine, and  proceeded to

their assigned  campsite about  one and  one-half miles past  the

gate  and 200 yards  or so beyond  the Hegarty cabin.   At around

9:00  that evening,  Katherine Hegarty became  extremely agitated

when  she saw  the campers  returning to  their campsite  for the

night,  and  began screaming  that  they  had  trespassed on  her

property.  The campers  assured her that the caretaker  had given

them permission to use the campsite and they would be leaving the

next morning.  To  which Katherine responded:  "Only if  you make

it until morning."   She then retrieved  a rifle from inside  the

cabin and fired six rounds from the porch in the direction of the

campers, who immediately took cover behind their trucks and boat.

          During  the next  hour  or so,  Katherine reloaded  her

rifle several times, firing approximately  twenty-five additional

rounds in the direction of the campers before eventually yielding

to their pleas for permission to depart in safety.  Leaving their

other belongings behind, the campers drove their vehicles quickly

past the cabin, where they saw  Katherine on the porch, rifle  in

hand.   Although no further  shots were fired, Katherine followed

the  campers in her truck  beyond the entrance  gate, then turned

back in the direction of her cabin.

          Upon their arrival  at a  truck stop  located on  Route

201, approximately two  miles from the woods road  entrance gate,

                                4
                                          4


the campers  immediately placed a telephone call  to the Somerset

County Sheriff's Department.   Their report described a harrowing

encounter  with  an intoxicated,  distraught ("flipped  out") and

armed woman who might pursue them to the truck stop  and shoot at

them.  Four law enforcement officers were dispatched to the truck

stop    Maine State Trooper Gary Wright and three Somerset County

Sheriff's Department  officers:   Patrol Sergeant Wilfred  Hines,

Deputy Sheriff Rene Guay, and Reserve Officer Thomas Giroux, Jr. 

          After  briefly  interviewing   the  four  campers,  the

officers decided  that the  suspect  had committed  at least  one

offense by shooting at the campers.  See Me. Rev. Stat. Ann. tit.
                                                  

17-A,   211  (1994) (reckless endangerment).   Moreover, from the

description the campers gave  of the woman, the locations  of the

cabin and the campsite, and from their knowledge of the area, the

officers concluded that Katherine Hegarty was their suspect.  The

officers  knew  that Katherine  was an  experienced hunter  and a

licensed  Maine guide, with a  reputation as a  "crack shot," and

that she kept several  powerful firearms at her cabin.   Further,

the officers  knew she had some history  of emotional instability

(i.e., a nervous "breakdown"  in 1991, requiring sedation, physi-
               

cal  restraints and  a brief  period of  involuntary hospitaliza-

tion), substance abuse (two arrests for operating a motor vehicle

while  under  the  influence  of alcohol  ("OUI")  in  1991), and

incidents of  erratic, violent behavior directed  at law enforce-

ment personnel    kicking  and throwing punches at  State Trooper

Gary Wright, asking irrational questions, and exhibiting  extreme

                                5
                                          5


mood swings  (alternately screaming and laughing) at  the time of

her first  OUI arrest, and an  assault/harassment against Trooper

Wright at his residence shortly after the same arrest.  For these

reasons, the officers concluded that they should arrest Katherine

immediately,  without obtaining  a  warrant or  informing her  of

their true  intentions until after  she had been  restrained, for

fear that she would become violent.

          At around  midnight, the  officers rendezvoused  with a

fifth officer,  Sergeant William  Crawford, Jr., of  the Somerset

County Sheriff's  Department, drove about three  miles and parked

their  cruisers  approximately a  mile  from  the Hegarty  cabin.

Their sporadic  discussions since meeting  at the truck  stop had

led  to a  skeletal  plan of  action  for effecting  the  arrest.

Concerned that Katherine might be  waiting for them somewhere  in

the vicinity, they  proceeded on  foot toward her  cabin, led  by

Trooper  Wright    with a police dog     in an effort to forewarn

themselves  of  Katherine's  presence  without   heralding  their

approach.   As  they  neared, at  approximately  12:15 a.m.,  the

officers  observed Katherine's  truck  in front  of the  darkened

cabin and heard a radio blaring music from inside.   The clearing

surrounding  the cabin was plainly visible  in the moonlight, but

the cabin interior was not illuminated.  

           Following a quick visual  inspection of the cabin site

and the interior of  the Hegarty truck, four officers  approached

unannounced and  placed themselves  along the outer  cabin walls.

The  fifth officer, Thomas Giroux, Jr., who was better acquainted

                                6
                                          6


with Katherine Hegarty,  gave a prearranged  signal to the  other

officers  from behind  a tree  across the  road in  front  of the

cabin.   Giroux  began  calling to  Katherine  by name      first

identifying himself and then expressing concern for her safety   

in  an attempt  to coax  her from  the cabin  to speak  with him.

Giroux heard no response above the blaring radio.  Sergeant Hines

then pounded on the cabin door and identified himself as a deputy

sheriff.  He received no response.

          Meanwhile, Sergeant  Crawford, who  had worked  his way

around to  the rear  of the  cabin, shined  a  flashlight into  a

darkened window and  saw a  fully-clothed woman lying  on a  bed,

with a  rifle astride her chest.   When the woman  began to raise

the  rifle in his direction, Crawford dove for cover, yelling out

to the other officers that  there was an armed person inside  the

cabin.  Katherine soon asked Crawford to identify himself.  After

he  did so, Crawford heard  Katherine leave the  bedroom and move

toward the front of the cabin.  The radio  soon became inaudible.

          As Katherine  walked about inside  the darkened  cabin,

she kept asking what the officers were doing there, and requested

that they leave  her property.   The officers  replied that  they

were  investigating a report of  campsite burglaries in the area,

were concerned  for her safety, and wanted her to come out of the

cabin so  she could  speak with  them.   Laughing  intermittently

during  these  exchanges,  Katherine  ultimately  rejected  their

requests    stating that she had seen no one suspicious.  

                                7
                                          7


          Deputy Sheriff  Rene Guay    posted  outside the closed

window  at the front of the cabin     next saw Katherine face-to-

face as she  peered out the window from a  kneeling position on a

nearby couch.  When Guay trained his flashlight on her, Katherine

said, "I  can see you."  At this time, Guay observed that Kather-

ine had no weapon in hand nor within the  vicinity illuminated by

his flashlight.  Guay  immediately communicated this  information

to Sergeant Hines and  Trooper Wright, who were posted  on either

side of the front door, then gave them a signal to "go."  

          Sergeant Hines  proceeded to  break in the  front door,

but  a chain  lock momentarily  delayed entry.   From  a crouched

position outside the front  window, Guay saw Katherine pick  up a

rifle beside the couch and begin to raise it in  the direction of

Hines and Wright, who were about to break through the front door.

As  she  continued to  raise the  rifle  in their  direction, the

officers ordered her to drop it.  Katherine paid no  heed and was

fatally wounded by the officers before she could fire a shot. 

B.   The District Court Proceedings
          B.   The District Court Proceedings
                                             

          In January  1993, John  Hegarty, in his  individual and

representative  capacities, filed  a four-count complaint  in the

District  of Maine  against,  inter alia,  the five  officers and
                                                  

their   respective  supervisors,  alleging  deprivations  of  the

Hegartys' Fourth and Fourteenth  Amendments rights, see 42 U.S.C.
                                                                 

   1983 (1994), and their state and federal statutory and consti-

tutional rights under  the Maine Civil  Rights Act ("MCRA"),  Me.

                                8
                                          8


Rev.  Stat. Ann. tit.  5,   4682  (1994).2  All  defendants moved

for  summary judgment,  asserting  qualified  immunity from  suit

under  section 1983  and  the MCRA,  and contending  that neither

punitive damages,  nor compensatory  damages for loss  of spousal

consortium, are  recoverable against  them under section  1983 or

the MCRA.

          The district court ruled, inter alia, that (1) the five
                                                        

officers  at the  scene were  not immune  from suit  under either

section  1983  or the  MCRA,  because  no objectively  reasonable

police  officer  could  have  concluded  that  the  circumstances

confronting these officers gave rise to an exigency sufficient to

justify forcing  a warrantless entry  into the Hegarty  cabin for

the  purpose  of  effecting  Katherine's  immediate  arrest;  (2)

punitive  damages would be recoverable  were a jury  to find that

the officers at the  scene acted with reckless indifference;  (3)

Somerset County  Sheriff Spencer Havey was  entitled to qualified

immunity from suit relating to any "supervisory liability," since

he had no advance notice that officer training was deficient, and

since  his  subsequent  conduct,  though  "troublesome,"  did not

constitute "gross or reckless indifference"; and (4) compensatory

damages for loss of consortium were not recoverable  absent proof

that  the officers'  conduct had  been directed  at  John Hegarty

rather than at his deceased spouse alone.  

          The officers  promptly took interlocutory  appeals from
                                                                 
                                                                           

     2No  appeal  was  taken  from the  district  court  judgment
dismissing the wrongful death, see Me. Rev. Stat. Ann. tit. 18-A,
                                            
  2-804 (1994), and common-law trespass claims. 

                                9
                                          9


the first and second district court rulings.  See Febus-Rodriguez
                                                                           

v. Betancourt-Lebron, 14  F.3d 87, 90 (1st  Cir. 1994) (disallow-
                              

ance  of qualified  immunity  claim is  "final" appealable  order

under  Cohen "collateral  order" doctrine).   After  the district
                      

court directed that final judgment enter pursuant to Fed. R. Civ.

P.  54(b) on its third and fourth rulings, plaintiff John Hegarty

cross-appealed. 

                                II
                                          II

                            DISCUSSION
                                      DISCUSSION
                                                

A.   The Officers' Immunity Claims
          A.   The Officers' Immunity Claims
                                            

     1.   Standard of Review
               1.   Standard of Review
                                      

          We review a  summary judgment order de novo,  under the
                                                               

identical  criteria  governing the  district court,  to determine

whether  "the pleadings, depositions, answers to interrogatories,

and admissions  on file,  together with  the affidavits,  if any,

show that there  is no genuine issue as to  any material fact and

that the  moving party  is entitled to  judgment as  a matter  of

law."  Fed. R. Civ. P. 56(c); see Jirau-Bernal v. Agrait, 37 F.3d
                                                                  

1, 3  (1st Cir.  1994).   All contested facts  are viewed  in the

light  most favorable  to the  party resisting  summary judgment.

Id.
             

     2.   The Qualified Immunity Doctrine
               2.   The Qualified Immunity Doctrine
                                                   

           Like other government officials performing discretion-

ary  functions, law  enforcement  officers hailed  into court  in

their individual capacities to respond in damages are entitled to

qualified  immunity  from  suit  in civil  rights  actions  under

                                10
                                          10


section  1983, provided  their conduct  did "not  violate clearly

established statutory or constitutional rights of which a reason-

able  [police officer] would have known."   Harlow v. Fitzgerald,
                                                                          

457  U.S. 800, 818 (1982);  Burns v. Loranger,  907 F.2d 233, 235
                                                       

(1st Cir. 1990).  In Anderson  v. Creighton, 483 U.S. 635 (1987),
                                                     

the Supreme  Court refined the focus of the policy considerations

underlying the qualified immunity doctrine.

               When  government  officials abuse  their
          offices, "action[s] for damages may offer the
          only  realistic  avenue  for  vindication  of
          constitutional   guarantees."     Harlow   v.
                                                            
          Fitzgerald, 457  U.S., at 814.   On the other
                              
          hand, permitting damages  suits against  gov-
          ernment  officials   can  entail  substantial
          social costs, including the risk that fear of
          personal  monetary  liability  and  harassing
          litigation will unduly  inhibit officials  in
          the discharge  of their  duties.  Ibid.   Our
                                                          
          cases  have  accommodated  these  conflicting
          concerns  by  generally providing  government
          officials performing discretionary  functions
          with  a  qualified  immunity, shielding  them
          from civil damages liability as long as their
          actions  could  reasonably have  been thought
          consistent with  the rights they  are alleged
          to have violated.  See, e.g., Malley v. Brig-
                                                                 
          gs, 475 U.S. 335, 341 (1986) . . . .
                      

Anderson, 483 U.S. at 638.3  As this court has explained, 
                  

          appellate assessment of [a] qualified immuni-
          ty claim  is  apportioned into  two  analytic
          components.  First, if the  right asserted by
          the  plaintiff  was "clearly  established" at
          the time  of  its alleged  violation, we  are
          required to assume that  the right was recog-
          nized by the  defendant official, see Harlow,
                                                                
          457 U.S. at 818, 102  S. Ct. at 2738;  Rodri-
                                                                 
          guez v.  Comas, 888  F.2d 899, 901  (1st Cir.
                                  
          1989);  second,  we  will deny  the  immunity
                                                                 
                                                                           

     3The same "qualified immunity"  analysis applies to the MCRA
               3
claims.    See Jenness  v. Nickerson,  637  A.2d 1152,  1159 (Me.
                                              
1994). 

                                11
                                          11


          claim  if a  reasonable official  situated in
          the same circumstances should have understood
          that  the  challenged  conduct violated  that
          established  right, see Anderson, 483 U.S. at
                                                    
          640-41, 107 S.  Ct. at  3039; Rodriguez,  888
                                                           
          F.2d at 901.

Burns, 907 F.2d at 235-36.
               

          The  Hegartys correctly  contend, of  course, that  the

Fourth and  Fourteenth Amendments to the  United States Constitu-

tion prohibited  a warrantless entry  into the  Hegarty cabin  to

effect Katherine's  arrest, except in  exigent circumstances  and

with probable cause.   See Welsh v. Wisconsin, 466  U.S. 740, 749
                                                       

(1984);  Payton v. New York, 445 U.S. 573, 586 (1980); Buenrostro
                                                                           

v. Collazo, 973 F.2d 39, 43 (1st Cir. 1992).  Indeed, the consti-
                    

tutional rights allegedly violated  were clearly established long

before this tragic incident occurred.  Accordingly, the defendant

officers are  deemed to have been on  notice of the relevant con-

stitutional protections  constraining their actions.   Burns, 907
                                                                      

F.2d at 235-36.  Therefore, qualified immunity affords the defen-

dant  officers no  safe  haven unless  an objectively  reasonable
                                                               

officer, similarly  situated, could have believed  that the chal-
                                                           

lenged police conduct did not violate the Hegartys' constitution-
                                       

al rights.  Id. at 236.  
                         

          Thus, the qualified immunity inquiry does not depend on

whether the  warrantless entry was constitutional,  but allows as

well for  the inevitable reality that  "law enforcement officials
                                                                           

will in some cases reasonably but mistakenly conclude that [their
                                                               

conduct] is  [constitutional], and . .  . that . .  . those offi-
                                                                           

cials    like  other officials  who act in  ways they  reasonably
               

                                12
                                          12


believe  to be lawful     should not be  held personally liable."
                                                                         

Anderson,  483 U.S. at 641  (emphasis added); Burns,  907 F.2d at
                                                             

237.  In other  words, qualified immunity sweeps so  broadly that

"all  but the plainly incompetent  or those who knowingly violate

the law" are protected from civil rights suits for money damages.

Hunter v. Bryant,  502 U.S.  224, 229 (1991)  (quoting Malley  v.
                                                                       

Briggs, 475 U.S. 335, 341  (1986)); cf. Roy v. City  of Lewiston,
                                                                          

42 F.3d 691, 695 (1st Cir. 1994) ("[T]he Supreme Court's standard

of reasonableness  is comparatively generous to  the police where

potential danger, emergency  conditions or other exigent  circum-

stances are present.").

          Lastly, we assess the  challenged police conduct with a

view  to determining its "objective legal reasonableness," Ander-
                                                                           

son,  483 U.S. at 639 (emphasis added), which entails two pivotal
             

features.   First,  the  qualified immunity  inquiry takes  place

prior to trial, on  motion for summary judgment, see  Mitchell v.
                                                                        

Forsyth,  472 U.S. 511, 526 (1985) (qualified immunity provides a
                 

shield against  the burdens of  litigation, not merely  a defense
                                                                

against  liability  for money  damages),  and  requires no  fact-

finding,  only a  ruling of  law strictly  for resolution  by the

court, see Amsden v. Moran, 904 F.2d 748, 752-53 (1st Cir. 1990),
                                    

cert. denied, 498 U.S.  1041 (1991); Hall v. Ochs, 817  F.2d 920,
                                                           

924  (1st Cir. 1987).   Thus, under  the policy-driven "objective

legal reasonableness" analysis governing our inquiry, even expert
               

testimony relating  to appropriate police procedures  in the cir-
                                                              

cumstances  confronting  the  officers  may  not  afford  certain

                                13
                                          13


insulation against  summary judgment in the  "qualified immunity"

context.  

          We turn then to consider whether an objectively reason-

able  police officer could have  believed    in the circumstances
                                    

prevailing before Katherine Hegarty  was mortally wounded    that
                           

"exigent  circumstances"  and "probable  cause"  existed for  the

forcible, warrantless, nighttime entry into the Hegarty cabin. 

                                14
                                          14


     3.   The Qualified Immunity Analysis
               3.   The Qualified Immunity Analysis
                                                   

          (i)  Probable Cause
                    (i)  Probable Cause
                                       

          The "probable  cause" requirement was met  if the offi-

cers  at the scene collectively possessed, Burns, 905 F.2d at 236
                                                          

n.7, "reasonably trustworthy information [sufficient]  to warrant

a prudent [person] in believing that [Katherine Hegarty] had com-

mitted  or was committing a  [criminal] offense."   Beck v. Ohio,
                                                                          

379 U.S.  89, 91  (1964).   As the  Supreme Court  has explained,

"[i]n dealing  with probable cause,  . . .  as the very  name im-

plies, we deal with probabilities.  These are not technical; they

are the factual and practical  considerations of everyday life on

which reasonable  and prudent  men, not legal  technicians, act."

Illinois  v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v.
                                                                        

United  States, 338 U.S.  160, 176 (1949)).   See also Burns, 907
                                                                      

F.2d at 236 (quoting Gates).
                                    

          On  appeal, the  plaintiff contests  the assumption    

indulged  arguendo by the district court    that there was proba-
                            

ble  cause for  Katherine Hegarty's  arrest.   He argues  that no

competent officer  in these circumstances  reasonably could  have

believed that Katherine    a "crack shot"    intended to harm the

campers,  especially since no bullets struck  the trucks and boat

behind which the campers took cover.    We do not agree.  Rather,

based on the information that Katherine may  have been intoxicat-

ed, an  objectively reasonable officer could  have concluded that

her errant  aim  was not  attributable  to a  lack of  intent  to

endanger.   Consequently, we  conclude, based on  the "reasonably

                                15
                                          15


trustworthy information"  available to the defendant  officers at

the  scene, see  supra pp.  3-8, that  an objectively  reasonable
                                

police officer  could  have  formed  the belief  that  there  was

probable cause  to arrest  Katherine Hegarty  for the offense  of

reckless endangerment.  See, e.g., Me. Rev. Stat. Ann. tit. 17-A,
                                           

  211 ("A person is  guilty of reckless conduct if  he recklessly

creates a substantial  risk of serious  bodily injury to  another

person.");    15  (authorizing warrantless  arrests for  reckless

conduct with a firearm). 

          (ii) Exigent Circumstances
                    (ii) Exigent Circumstances
                                              

          A warrantless, forcible entry of a private residence is

permissible  in certain  limited  circumstances, including:   (1)

"hot  pursuit" of a fleeing  felon; (2) threatened destruction of

evidence inside a residence before a warrant can be obtained; (3)

a risk that the suspect may escape from the residence undetected;

or (4)  a threat, posed by a  suspect, to the lives  or safety of

the public, the police officers, or to herself.  See Minnesota v.
                                                                        

Olson, 495 U.S.  91, 100 (1990).  We have  held that a cognizable
               

exigency  must  present  a  "compelling  necessity  for immediate

action  that w[ould] not brook the delay of obtaining a warrant."

United States v.  Almonte, 952 F.2d 20, 22 (1st Cir. 1991), cert.
                                                                           

denied, 112 S. Ct.  1776 (1992) (quoting United States  v. Adams,
                                                                          

621 F.2d 41, 44 (1st Cir. 1980)).  Conversely, certain mitigating

factors  may undermine  a showing  of exigent  circumstances; for

example, where the criminal  offense was not sufficiently serious

(a traffic violation), Welsh, 466 U.S. at 753 n.6, the opportuni-
                                      

                                16
                                          16


ty afforded  the suspect for peaceable  surrender was inadequate,

or the entry  occurred in  the nighttime.   See generally  United
                                                                           

States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980).
                         

          The  defendant  officers challenge  the  district court

ruling that  no  competent police  officer could  have formed  an

objectively reasonable belief that "exigent circumstances" justi-

fied a forcible, warrantless  entry for the purpose  of effecting

Katherine Hegarty's  immediate arrest.   They argue  that it  was

reasonable  to believe      based on  the reasonably  trustworthy

information available to them at the time    that Katherine posed

an  imminent and  unpredictable threat  to their  safety, and  to

herself.  

          Earlier in  the day, Katherine had  engaged in violent,

life-threatening conduct against peaceable, unarmed campers.  She

was known to have demonstrated emotional instability and hostili-

ty  toward  law  enforcement personnel  in  the  past, which  had

prompted her to attack  and threaten State Trooper Wright  on two

separate occasions.  At  the cabin, she pointed a  rifle directly

at Sergeant Crawford, exhibited irrational and possibly  suicidal

behavior (laughing "like  a witch") in response  to the officers'

repeated requests that she discuss matters with them.  The defen-

dant officers maintain that she could have decided at any time to

fire at  them through  the "paper thin"  cabin walls  or as  they

attempted to retreat across  the moonlit clearing.  Consequently,

the officers contend, there was an ongoing exigency which made it

reasonable to  attempt to  disarm Katherine whenever  it appeared

                                17
                                          17


least likely that she possessed or could retrieve a weapon.4

          Plaintiff acknowledges  that the  officers did  not use
                                                                       

excessive force to protect themselves after they forcibly entered

the cabin and  were confronted by  Katherine, with rifle  raised.

Cf.  Roy, 42  F.3d at  695-96.   Rather, he  contends that  their
                  

precipitous and  ill-conceived strategy    arrived  at before the
                                                                       

officers ever left the  truck stop    deviated  unreasonably from

standard police  tactics in crisis situations  and inexorably led

to Katherine's  death.  Cf. United States  v. Curzi, 867 F.2d 36,
                                                             

43  n.6  (1st Cir.  1989) (police  may  not manipulate  events to

create an "exigency" justifying warrantless entry). 

          William  McClaran,  plaintiff's expert,  testified that

the defendant officers deviated  in two fundamental respects from

standard  police practice  in a  crisis.   First, they  failed to

define  their exact  "chain  of command"  before  setting out  to

effect  Katherine's arrest.   Consequently,  each officer  at the

scene was  left to determine his own movements on an ad hoc basis
                                                                     

("freelancing"),  without  adequate  coordination   among  them.5

                                                                 
                                                                           
     4Reserve Officer Giroux and Sergeant Crawford, who played no
direct  role in the forcible entry and were responding to orders,
claim entitlement  to  qualified  immunity  by  reason  of  their
"lesser" participation.   Given our holding, we  need not address
their claim. 

     5McClaran pointed  to several instances of  "freelancing" at
the Hegarty cabin.  First, although Officer Giroux alone had been
charged with  initiating communications with  Katherine, Sergeant
Hines unilaterally  deviated from  the arrangement by  banging on
the  cabin door.  Second,  the failure to  coordinate their move-
ments  before arriving  at the  scene created  the risk  that the
officers might be  caught in  their own cross-fire.   Third,  the
officers  gave Katherine  confusingly different  explanations for

                                18
                                          18


Second, the officers eschewed  accepted rules of "containment" by

needlessly placing  themselves in peril against  the "paper thin"

outer walls of the cabin.  Plaintiff opines that upon approaching

the cabin, the officers harbored a reasonable belief that Kather-

ine was inside, given the music blaring from within the cabin and

the presence of her  truck in the cabin clearing.   Consequently,

and since the officers  knew Katherine was armed and  appeared to

be acting irrationally, two  officers should have taken concealed

positions at the edge  of the woods surrounding the  cabin clear-

ing, thereby cutting off any attempted escape.  Thereafter,  from

a safer distance, other  officers could have begun the  effort to

coax Katherine to come outside, while another officer returned to

the police  cruisers and  radioed for  assistance from the  Maine

State Tactical Team.  

          We  must isolate  all  reasonably reliable  information

collectively known to the  officers at the time  their challenged

conduct occurred, without  indulging hindsight,  see Hunter,  502
                                                                     

U.S.  at 227,  to  determine whether  an "objectively  reasonable

officer," with  the identical information,  could have  concluded
                                                           

that there  were exigent  circumstances sufficient to  support an

immediate forcible  entry of the  Hegarty cabin  to effect  Kath-

erine's  warrantless arrest.  See Graham v. Connor, 490 U.S. 386,
                                                            

396 (1989).   Any genuine dispute as to what the officers knew or
                                                                           
                                                                 
                                                                           

their presence at the  cabin.  Finally, the officers  agreed that
should a  forcible entry  become necessary, Sergeant  Hines would
enter  first, whereas in fact a  subordinate officer (Guay) ended
up giving the irrepealable signal to launch the forcible entry.  

                                19
                                          19


did must  be resolved  in the plaintiff's  favor.   See Fonte  v.
                                                                       

Collins, 898 F.2d 284,  285 (1st Cir. 1990).  Even then, however,
                 

summary judgment for the  defendant officers would be appropriate

if any such factual  dispute were immaterial as a  matter of law;

that is,  if it would not  alter the required analysis  as to the

"legal reasonableness"  of their conduct.   See, e.g.,  Prokey v.
                                                                        

Watkins, 942 F.2d 67, 73  (1st Cir. 1991) (citing cases  in which
                 

material factual disputes precluded summary judgment on qualified

immunity claim); see also Cameron v. Seitz, 38 F.3d 264,  273 n.2
                                                    

(6th Cir. 1994) (same).6  

          Following  a careful examination  of the applicable law

and all  competent evidence presented  to the  district court  at

summary judgment,  we conclude  that the benchmark  against which

plaintiff would have us evaluate the challenged police conduct is

impermissibly stringent for the qualified immunity context, since

it fails  to acknowledge  an overarching reality  confronting the

officers at  the most  critical moment of  decision; viz.,  until
                                                                  

Sergeant  Crawford  saw  Katherine  Hegarty  through the  bedroom

window  of the cabin, there was no conclusive evidence that their
                                                                           

suspect had been located or contained at all. 
                                                      

          The  officers  initially  devised a  "plan"  which they

                                                                 
                                                                           

     6We  need to  note the  obvious  as well.   Even  though the
isolation of the Hegarty cabin and the death of Katherine Hegarty
dictate that virtually all relevant  evidence derives exclusively
from the  officers at the  scene, see  Scott v. Henrich,  39 F.3d
                                                                 
912, 915 (9th  Cir. 1994)  ("the officer defendant  is often  the
only surviving eyewitness" in  qualified immunity cases), summary
judgment  nonetheless must be granted absent a genuine dispute as
to a material issue. See Jirau-Bernal, 37 F.3d at 3.
                                               

                                20
                                          20


characterized  as  "locate,  identify,  contain,  negotiate,  and

arrest."   Obviously,  "location" and  "identification" would  be

imperative before any other element in their plan  could proceed.
                           

The officers  knew that Katherine had  fired approximately thirty

rounds  toward the  campers  earlier in  the  evening.   And,  in

addition to  their collective knowledge of  her erratic, unlawful

behavior  in the recent past,  the officers had  learned from the

campers  that Katherine  was  last seen  driving  her truck.    A
                                                                     

competent police  officer in these circumstances     possessed of

this disturbing  information    certainly could  harbor an objec-

tively reasonable concern that Katherine might yet remain mobile,
                                                                          

thereby posing  a  continuing  danger  to other  persons  in  the
                                                                           

vicinity.  
                  

          Several other campsites in  the vicinity of the Hegarty

cabin were  occupied, and without knowing  the precise motivation

for  Katherine's  unprovoked,  armed response  to  the  peaceable

presence  of the four campers  earlier in the  evening, an objec-

tively reasonable  officer  prudently could  presume  that  other

campers  might be  at similar risk.   In  fact, their  use of the

police dog while proceeding along the woods road toward the cabin

attests  to  the  officers'  alertness to  the  possibility  that

Katherine  could be lying in wait in  the woods.  Deciding not to

take  the risk attendant  upon the delay  necessarily entailed in

obtaining a warrant, the officers accordingly placed top priority

on conclusively  locating their suspect at  the earliest possible
                                   

time so  as to minimize the  threat posed to the  safety of other

                                21
                                          21


campers.    See Olson,  495  U.S. at  100  (exigent circumstances
                               

include the need to  safeguard against threats to life  or safety

of others); Almonte, 952 F.2d at 22.7 
                             

          Quite  contrary  to  the  major  premise   for  William

McClaran's  expert  opinion,  by  the time  they  arrived  at the

Hegarty cabin  the officers had received  decidedly mixed signals
                                                                   

concerning their suspect's location.   The parked truck suggested

that Katherine might be inside the cabin, but the lack of artifi-

cial illumination suggested otherwise.  The blaring music did not

conclusively disprove either hypothesis.   Nor had Katherine been

seen or heard entering  or moving about inside the cabin.   Thus,

it  was in no sense  improbable that Katherine,  a licensed guide

and experienced  hunter, had  left her  vehicle and departed  the

cabin site on foot. 

          Nor was the alternative  police strategy posited by Mr.

McClaran without its shortcomings.   Of course, had  the officers

chosen to cordon off the cabin from a "safe"  distance, and begun

calling out to  Katherine in  the hope they  might negotiate  her

surrender     and  had she responded     the  "containment" phase
                                              

could have proceeded  apace.  On  the other hand, had  she simply

failed  to respond     either  because she  could not  hear their

calls  above the blaring music, or because she had fully expected

them to investigate the campers'  allegations and wanted to  keep

                                                                 
                                                                           

     7The exigency created by  the realistic danger the unlocated
suspect posed to other campers in the vicinity  likewise substan-
tially  mitigated an  aggravating  factor noted  by the  district
court:  the fact that the warrantless entry took place at night. 

                                22
                                          22


them off guard     the officers still would  be left to speculate

whether she was in the cabin.  

          Since time  was of the  essence, and it  was imperative

that they locate and identify their suspect so as to rule out the

continuing danger she could  pose to others in the  vicinity, the

officers then  would have faced an irreconcilable quandary.  They

could  undertake a  "containment" strategy  along the  lines pro-

pounded by McClaran,  which would necessitate a delay  of several

hours  for  the Maine  State Tactical  Team  to reach  the cabin,

thereby countenancing the realistic risk that their suspect might

be  elsewhere at  that  very moment  jeopardizing  the safety  of

others.8   Or, having heralded their  arrival, the officers could

have attempted  to confirm  Katherine's  presence through  visual

contact,  by approaching the  outer walls  of the  darkened cabin

across  the  moonlit  clearing, thereby  exposing  themselves  to

gunfire from their  armed and  unpredictable suspect     by  then

forewarned and concealed.

          Law  enforcement officers quite  often are  required to

assess  just  such  probabilities,  and to  weigh  the  attendant

contingencies.   And  it is  precisely such  spontaneous judgment

calls    borne of necessity in rapidly evolving, life-endangering

circumstances     that  the qualified  immunity doctrine  was de-

signed to insulate from judicial second-guessing in civil actions

for  money damages,  unless  the challenged  conduct was  clearly
                                                                 
                                                                           

     8Once  the tactical  team  had arrived,  moreover, it  would
still  have been necessary to  confirm    by  some means    Kath-
erine's presence in the cabin. 

                                23
                                          23


incompetent or undertaken in  plain violation of established law.

See Hunter, 502 U.S. at 229; Anderson, 483 U.S. at 638.
                                               

                                24
                                          24


          Thus,  we do  not determine  which of  these strategies

represented the  more prudent course  or posed the  least serious
                                                                   

risk to the suspect, the officers or others in the vicinity.  See
                                                                           

Scott v. Henrich, 39  F.3d 912, 915 (9th Cir.  1994) (noting that
                          

"[o]fficers  need not  avail  themselves of  the least  intrusive
                                                                           

means of responding to  an exigent situation; they need  only act
               

within  that range  of  conduct [which  is]  . .  .  reasonable";

contrary  rule "would  inevitably induce  tentativeness by  offi-

cers").   Rather,  we consider  only whether  a competent  police

officer in these circumstances reasonably could have opted for an

unannounced approach to the cabin walls forthwith.  

          As we conclude that  a competent police officer reason-

ably could  have believed  that  exigent circumstances  warranted

approaching  the cabin walls     forthwith and  unannounced    we
                                                                     

turn to the remaining  question:  whether the defendant  officers

    once  committed, and  assured that  Katherine was  inside the

cabin where she no longer posed a viable threat  to other campers

   reasonably could  have believed that she  represented an immi-

nent physical threat  to their own safety.9  See  Olson, 495 U.S.
                                                                 

at 100.  

          The expert  testimony on  which plaintiff relies  makes

                                                                 
                                                                           

     9Although we  need not  resolve the matter  definitively, we
have  serious  reservations whether  the  officers' actions  were
justified by  concern that  Katherine might  take  her own  life.
True,  the objective  evidence indicated  that she  had exhibited
behavior  both violent  and unpredictable,  yet the  evidence re-
vealed  that her  conduct  was directed  at third  parties, never
herself.   Nor had she  said anything to  the officers that might
indicate suicidal intent.

                                25
                                          25


much of the notion that the entire plan for approaching the outer

cabin  walls  was  ill-conceived  and  uncoordinated  ab  initio,
                                                                          

whereas  the  officers plausibly  contend  that  they had  worked

together as a team so often in the past that their basic plan and

tactics were  implicitly understood.  But  even accepting William

McClaran's prescription as to an appropriate police procedure for

use  in  these circumstances,  plaintiff does  not explain  how a

differently formulated plan     devoid of the suggested deficien-

cies in the officers'  plan    inevitably would have  averted the

exigency ultimately confronting  them.   See supra notes  5 &  8.
                                                            

Indeed,  none  of the  consequences  McClaran  attributed to  the

alleged absence of a "chain of command," or to lack of  coordina-

tion  in  the officers'  plan,  clearly  constituted a  causative
                                                                           

factor in  Katherine's death.10   Rather, the  causative exigency

derived  primarily from  three  factors over  which the  officers

never had exclusive control:   the need to  ascertain Katherine's

precise location as soon as possible, her unpredictable behavior,

and  the  lack of  protective cover  for  their own  movements in
                                                                 
                                                                           

     10Plaintiff misfocuses the  "qualified immunity" analysis by
inquiring  whether  all aspects  of  the  officers' conduct  were
                                         
executed  in the manner to be expected of an "objectively reason-
able" officer, rather than whether the particular decisions which
                                                                           
led  to Katherine's death reasonably could have been made by such
                                   
an  officer.  Thus, for example, even assuming the plan increased
the risk that  an officer  might be caught  in another  officer's
cross-fire, the subsequent decision to enter and disarm Katherine
was not implicated thereby.   Furthermore, the officers' "differ-
ing" responses  to Katherine's inquiries were not so much confus-
ingly  inconsistent,  as  consistently  misleading.    But  their
responses were also deliberately designed to reduce the risk that
she might react violently, as by their consistent  expressions of
concern for Katherine's safety  and their scrupulous avoidance of
any mention of her impending arrest.

                                26
                                          26


locating and containing her. 

          Second,  though  plaintiff  argues  that  the  officers

delayed  their forcible entry until  they were safest     when it
                                                   

"appeared" to Officer  Guay that Katherine was unarmed and beyond

arm's  reach from a  firearm    surely  this argument exaggerates

their on-the-spot sense of personal security by failing to assess

the imminence of a perceived  danger in light of the  totality of
                                                                           

the  circumstances. See United States v. Veillette, 778 F.2d 899,
                                                            

902 (1st Cir.  1985) (exigency is assessed  by viewing "totality"

of circumstances), cert. denied, 476 U.S. 1115 (1986). 
                                         

          Katherine moved freely about the unilluminated interior

of the locked cabin, which contained deadly firearms  whose exact

number and location  were unknown  to the officers.   Cf.,  e.g.,
                                                                          

United States v.  Smith, 797  F.2d 836, 841-42  (10th Cir.  1986)
                                 

(exigency  established for  warrantless  entry  where agents  ap-

proached aircraft with probable cause to  believe it might harbor

armed drug dealers);   United  States v. Guarente,  810 F.  Supp.
                                                           

350, 352-53  (D. Me. 1993) (exigency  established for warrantless

entry where  officers remained uncertain about  the intentions of

armed suspects who might remain  inside structure).  Only minutes

before,  Katherine had  pointed her  rifle at  Sergeant Crawford.

Cf.  O'Brien v. City of Grand Rapids,  23 F.3d 990, 997 (6th Cir.
                                              

1994)  (qualified immunity  claim disallowed  where suspect  "had

taken no action against  the officers" and "did not point the gun

                                27
                                          27


at  anyone";  noting   that  threat  to   police  must  be   "im-

mediate").11   Prior to  their forced  entry, the  officers real-

ized that  the cabin walls  were "paper  thin,"12 thus  affording

insufficient cover  should Katherine  decide to fire  from inside

the  cabin      a  serious contingency  that  competent  officers

reasonably could take into  account given the violent, irrational

and unpredictable behavior recently exhibited by their barricaded

suspect,  including her  peculiar bouts  of laughter,  history of

emotional  instability  and  demonstrated antagonism  toward  law

enforcement personnel.   In such circumstances, competent  police

officers reasonably could conclude  that to announce their inten-

tion  to place the barricaded suspect  under arrest    dispensing

with their  ruse that they were  there only to help  her    might

well spark renewed violence.

                                                                 
                                                                           
     11Although plaintiff argues that this incident  cannot serve
to  establish an  exigent circumstance     because  Katherine may
have  pointed the gun at  Crawford before she  recognized that he
                                                   
was a police officer     omniscience is not the  presumed mindset
with  which an  objectively reasonable police  officer approaches
life-endangering decisions.   The correct  focus must  be on  the
significance  an  objectively  reasonable  police  officer  might
attach to the  threatening action, in  circumstances where he    
like Sergeant  Crawford     could not  know, with  assurance, the
                                                     
suspect's exact  state of mind or  intent.  Cf.,  e.g., Gibson v.
                                                                        
Officer,  P.A., 44 F.3d 274, 277-78 (5th Cir. 1995) (proper focus
                        
is  not upon factual dispute as to whether suspect was intoxicat-
ed, but whether  objective facts might lead  a reasonable officer
so to  conclude); Slattery v. Rizzo, 939  F.2d 213, 216 (4th Cir.
                                             
1991) (police officer's belief that suspect was reaching  for gun
was "reasonable" even though object turned out to be a bottle). 

     12Their vulnerability  to gunfire from within  the cabin was
later  confirmed.   McClaran  himself noted  that several  police
bullets    fired  immediately after the forcible entry     passed
through the cabin walls. 
                 

                                28
                                          28


          Finally, once their objectively  reasonable locate-and-

contain strategy had positioned  several officers in unexpectedly

vulnerable positions against the thin cabin walls, cf. Curzi, 867
                                                                      

F.2d  at 43,  they could  neither remain  in their  positions in-

definitely  nor safely  terminate  the impasse  by attempting  to

retreat  across  the  moonlit  cabin  clearing  without  directly

exposing themselves to potential gunfire.  Thus, safe and indefi-

nite  containment      either  from  their  vulnerable  positions

against the  cabin walls or from a  "safer" distance    no longer

remained a practicable alternative.  Cf. United States v. Wilson,
                                                                          

36 F.3d 205, 210  (1st Cir. 1994) (upholding denial of  motion to

suppress evidence because police  officers should not be required

to  remain  indefinitely outside  apartment  located in  building

which was well-known site  of prior drug sales and  police shoot-

ings); Guarente,  810 F. Supp.  at 352-53 (finding  it reasonable
                         

for police to enter building in  circumstances where their alter-

native  was to remain  potential targets for  any concealed armed

suspect who might be inside); cf. also United States v. Hardy,   
                                                                       

F.3d    ,     (7th Cir. 1995)  [No. 94-2820, 1995 U.S. App. LEXIS

7605  (7th Cir. Apr. 5, 1995)] (finding exigent threat to officer

safety where  armed suspect, with  known history of  violence and

drug use, was inside locked motel room and within "easy reach" of

powerful firearm);  Russo  v. City of Cincinnati, 953  F.2d 1036,
                                                          

1044-45 (6th  Cir. 1992) (finding that  no unreasonably excessive

force had been  used against  an armed and  "suicidal" person    

barricaded inside  apartment     who had made  threatening state-

                                29
                                          29


ments toward police officers while in intermittent close proximi-

ty  to them,  and showed  signs of  serious mental  instability);

Smith,  797 F.2d at 841 (exigency  established where officers had
               

probable cause to  believe aircraft, which had landed at isolated

airfield after dark, might harbor armed drug dealers).  

                                30
                                          30


          We therefore  conclude that a competent  police officer

   possessing the same information  the defendant officers had on

May  15, 1992    reasonably  could have believed  both that there

existed probable  cause to  arrest Katherine Hegarty  and exigent

circumstances  justifying  their  immediate   warrantless  entry.

Consequently, the summary judgment  order entered by the district

court must be vacated,  and summary judgment must be  entered for

the defendant officers. 

B.   Sheriff Havey's Qualified Immunity Claim
          B.   Sheriff Havey's Qualified Immunity Claim
                                                       

          Although Somerset County Sheriff Spencer  Havey did not

participate in the events of May 15, 1992, plaintiff advances two

related challenges to the summary judgment order entered in favor

of Havey.  First, plaintiff argues that Havey failed to train his

officers adequately  or to  institute written standard  operating

procedures ("SOPs"),  even though  it was  reasonably foreseeable

that  these  deputy  sheriffs likely  would  encounter  so-called

"barricaded felon"  cases on  a frequent basis  in rural,  wooded

Somerset County.  Second, even assuming that a need for addition-

al  training and  SOPs  had not  been  foreseeable prior  to  the

Hegarty incident, Sheriff Havey's subsequent conduct would enable
                                                      

a  factfinder to  infer  that Havey  had  condoned the  officers'

conduct, or been indifferent to the need for better training long

before  May  15, 1992.   For  example,  Sheriff Havey  refused to

discipline  his  officers for  the  fatal  shooting of  Katherine

Hegarty, as recommended in  the Attorney General's final investi-

gative  report.   Nor did  he  institute additional  training, as

                                31
                                          31


recommended  by a citizen review  board convened by  Havey in the

wake of the tragic event.  

     1.   Applicable Law
               1.   Applicable Law
                                  

          Under 28  U.S.C.    1983,  supervisory law  enforcement

officers incur  no respondeat superior liability  for the actions
                                                

of their subordinates.  See, e.g., City of Canton  v. Harris, 489
                                                                      

U.S. 378, 385  (1989).   Absent participation  in the  challenged

conduct, a supervisor "can be held liable . . . [only] if (1) the

behavior  of  [his]  subordinates  results  in  a  constitutional

violation  and  (2) the  [supervisor's]  action  or inaction  was

'affirmative[ly] link[ed]' to  the behavior in the  sense that it
                                   

could be characterized as 'supervisory encouragement, condonation

or acquiescence' or 'gross negligence [of the supervisor] amount-

ing  to  deliberate indifference.'"    Lipsett  v. University  of
                                                                           

Puerto  Rico, 864  F.2d  881, 902-03  (1st  Cir. 1988)  (emphasis
                      

added) (citations  omitted); see  Rodriques v. Furtado,  950 F.2d
                                                                

805, 813  (1st Cir. 1991) (discussing  deliberate indifference to

officer training).  Deliberate indifference will be found only if

"it would be manifest to any reasonable official that his conduct

was   very  likely  to  violate  an  individual's  constitutional

rights."   Febus-Rodriguez,  14  F.3d at  92 (quoting  Germany v.
                                                                        

Vance, 868 F.2d 9,  18 (1st Cir. 1989)).  The  "affirmative link"
               

requirement contemplates proof that  the supervisor's conduct led

inexorably to  the constitutional violation.   See id.;  see also
                                                                           

Fraire  v. City  of Arlington,  957 F.2d  1268, 1281  (5th Cir.),
                                       

cert. denied, 113 S. Ct. 462 (1992).
                      

                                32
                                          32


                                33
                                          33


     2.   Application of Law to Facts
               2.   Application of Law to Facts
                                               

          The  determination that  a subordinate  law enforcement

officer is entitled to qualified immunity from suit under section

1983 is not necessarily  dispositive of the supervisor's immunity

claim.  Nevertheless, it  does increase the weight of  the burden

plaintiff  must bear  in demonstrating  not only a  deficiency in

supervision but also the  essential causal connection or "affirm-
                                                               

ative linkage" between any such deficiency in supervision and the

alleged deprivation  of rights.   We conclude that  plaintiff has

not carried this heavy burden. 

          We  find the district  court's preliminary  analysis of

Sheriff Havey's qualified immunity claim to be well  reasoned and

persuasive.  The evidence  demonstrates that Sheriff Havey, newly

elected  to office, had no  notice that the  deputy sheriffs were

experiencing  problems  in   dealing  with  "barricaded  suspect"

confrontations  prior to  the  incident in  question. Cf.  Febus-
                                                                           

Rodriguez,  14 F.3d at 92.  Indeed, their police academy training
                   

and instruction time relating to warrantless entries exceeded the
                                                                       

national average.  See Canton, 489 U.S. at 389.  Moreover, rather
                                       

than  simply ignore  the  Hegarty incident,  Havey suspended  all

officers involved  and convened a  panel to investigate  and make

recommendations.   Although  it is  entirely understandable  that

plaintiff would fault Sheriff Havey for not accepting or adopting

the recommendations made by  the advisory panel, such a  decision

is  insufficient, standing alone,  to establish deliberate indif-

ference.  See, e.g.,  Santiago v. Fenton, 891 F.2d  373, 382 (1st
                                                  

                                34
                                          34


Cir.  1989) (decision  not to  discipline or  fault subordinates'

conduct,  following  investigation,  is   insufficient,  standing

alone,  to  demonstrate supervisor's  "deliberate indifference");

see also Fraire, 957 F.2d at 1278-79. 
                         

          Even  though  the  district  court  ruled  that Havey's

subsequent conduct did not  amount to deliberate indifference, it

expressed serious  reservations concerning  some of his  conduct,

see Bordanaro v. McLeod, 871 F.2d 1151, 1166-67 (1st Cir.), cert.
                                                                           

denied, 493 U.S. 820 (1989) (postincident conduct may be relevant
                

to  "deliberate  indifference" inquiry);  Grandstaff  v.  City of
                                                                           

Borger, 767 F.2d 161, 171 (5th Cir. 1985), cert. denied, 480 U.S.
                                                                 

916  (1987) (same),  notably Havey's  failure to  acknowledge the

need  to prescribe  SOPs or  to institute  in-house  training for
                            

handling "barricaded felon" cases.   Nevertheless, the  rationale

for  our decision that the individual officers at the scene acted

within the bounds of  objective reasonableness, see supra Section
                                                                   

II.A, plainly undermines most of the district court's concerns. 

          Most importantly,  plaintiff failed to  demonstrate the

required "affirmative link" between Havey's conduct and Katherine

Hegarty's death.   That is, he  has not sustained  the burden  of

establishing that any lack of "barricaded felon" training  on the

part of the  Somerset County Sheriff's Department officers at the

scene caused Katherine's death.   Cf., e.g., Manarite v.  City of
                                                                           

Springfield, 957 F.2d 953,  958 (1st Cir.), cert. denied,  113 S.
                                                                  

Ct. 113 (1992).   First, even the plaintiff's expert  declined to

characterize the Hegarty incident as a typical "barricaded felon"
                                                        

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case.   And,  unlike the typical  "barricaded felon"  case, these

officers  at the outset had no conclusive evidence but that their

suspect remained at large.
                                   

          Moreover, even  assuming the  best efforts of  the most

prescient supervisor, it simply is not possible to anticipate the

entire array  of atypical  circumstances    upon  which sensitive
                

discretionary judgment calls must  be made by the officer  in the
                       

field     for inclusion  in a law  enforcement agency's  standard

operating procedures.   For example, even  indulging an impermis-

sible  measure of hindsight, we do not believe that SOPs, however

elaborate, would have enabled the defendant officers at the scene

to  resolve by safer or more reliable means whether Katherine was
                                                     

inside the cabin  at the  time the officers  first arrived.   So,

too, in the end,  Sheriff Havey    after initiating  an immediate

investigation into  the officers'  actions    formed  the profes-

sional opinion, rightly or wrongly, that  the judgment calls made

at the scene were reasonable.  

          Finally,  though  plaintiff would  characterize Sheriff

Havey's  subsequent  conduct  as  pure obstinacy,  the  cloak  of
                                                                           

qualified immunity nonetheless remains  in place unless "it would
                                                          

be  manifest  to any  reasonable  official"  in the  supervisor's

position  that the  failure  to establish  such  a policy  or  to

institute in-house  training prior  to the Hegarty  incident "was
                                                                      

very likely to  violate an  individual's constitutional  rights."

Febus-Rodriguez,  14 F.3d  at 92.   As  plaintiff failed  even to
                         

approach the threshold for such a showing, we affirm the district

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court ruling  allowing the  qualified immunity claim  asserted by

defendant Havey.

                               III
                                         III

                            CONCLUSION
                                      CONCLUSION
                                                

          We cannot  know whether  the tragic death  of Katherine

Hegarty would have been  averted but for the judgment  calls made

by  the defendant officers at the scene,  nor is that the inquiry

we make in a civil rights action for damages against the individ-

ual  officers.    We  determine only  whether  the  discretionary

decisions made by the  defendants were within the broad  range of

reasonable conduct to be  expected from competent police officers

and their supervisors in  like circumstances.  As the  actions of

the  defendant  officers and  their  supervisor  plainly met  the

latter standard,  the district court order  denying summary judg-

ment  to the defendant officers must be reversed and the judgment

in favor of defendant Havey must be affirmed. 

          The judgment  for defendant  Havey is affirmed  and the
                                                                           

case is  remanded  to the  district  court with  instructions  to
                                                                           

vacate  the  judgment entered  for  plaintiff  and enter  summary
                                                                           

judgment for the  defendant officers, and  for such further  pro-
                                                                           

ceedings  as may be appropriate and consistent with this opinion.
                                                                          

The parties shall bear their own costs on appeal.
                                                          

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