UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-1260
MICHAEL G. ROY,
Plaintiff, Appellant,
v.
INHABITANTS OF THE CITY OF LEWISTON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Walter Hanstein, III with whom William Maselli and Joyce, Dumas,
David & Hanstein, P.A. were on brief for appellant.
Edward R. Benjamin, Jr. with whom Daniel Rapaport and Preti,
Flaherty, Beliveau & Pachios were on brief for appellees.
December 21, 1994
BOUDIN, Circuit Judge. On August 13, 1991, around 9:00
p.m., officers Michael Whalen and Richard Mercer of the
Lewiston Police Department were sent to investigate a
domestic violence report at the home of Michael and Edith
Roy. On arriving, Edith Roy told the police officers that
Michael Roy ("Roy") was armed with two knives and had
threatened to use them against any policeman who approached
him. The policemen then went outside to the back of the
residence and found Roy lying on the ground.
Roy was roused--he had been drinking--and the officers
then learned that a third officer, Randy Hausman, was on his
way to the Roys' home to serve a summons on Michael Roy
because of a complaint by another woman that Roy had struck
her earlier that day. When Hausman arrived and read Roy his
Miranda rights, Roy refused to acknowledge the reading or
accept the summons, so Hausman pushed it into Roy's pocket.
The latter then became upset, stated "I'll show you," entered
his home, and then--following out Edith Roy who was
screaming--returned carrying a steak knife in each hand.
In broad outline, what happened next is that the
officers drew their side arms and ordered Roy to put down the
knives. He advanced, flailing his arms while continuing to
hold the knives. The officers retreated back to a sharp
downward incline. After some maneuvering in which the
officers repeated their warnings and made some effort to
-2-
-2-
distract and disarm Roy, Roy made a kicking-lunging motion
toward Whalen and Mercer. Whalen shot twice, striking Roy
both times and injuring him badly. Roy was arrested and
hospitalized. He ultimately recovered, and then brought the
present action.
The law suit, filed in state court and removed to
federal district court, asserted claims against all three
officers, the City of Lewiston, and the police chief. The
claims, under 42 U.S.C. 1983 and state law, were based on
charges that the three police officers had unreasonably used
deadly force. The city and its police chief were claimed to
be liable on the ground that they had not adequately trained
the officers in non-lethal alternatives for subduing
dangerous but intoxicated persons.
The defendants moved for summary judgment based on
affidavits reciting the facts just set forth and their belief
that their conduct was reasonable. In response, Roy
submitted affidavits and deposition materials of his own. He
did not contradict the events just described but asserted
that he had intended and was seeking to put the knives down
when he was shot. He also proffered testimony from two
witnesses who had seen the event. One, a teenager, said that
he had not seen the kick or lunge; but Roy did not dispute
that he had made some gesture of this kind.
-3-
-3-
The other eyewitness had substantial experience with
drunken prisoners as a corrections officer in the county
jail. He was arguably qualified to give an opinion as to
whether unreasonable force had been used, and there is an
indication that he harbored doubts about the police conduct
in subduing Roy. But in his deposition this eyewitness
ultimately declined to go further than to say that he might
have handled the matter differently. In other respects, his
testimony confirmed a number of the details offered by the
officers.
A third affiant, with qualifications as an expert on
police procedure, said that the officers could easily have
arrested Roy without using firearms. He said that the
officers should have been equipped with a noxious spray,
colloquially known as red pepper mace. Because this spray
was not made available to Lewiston police and because the
expert thought that the police chief placed undue emphasis on
guns, the expert was prepared to say that the training of the
officers was inadequate.
In a thoughtful opinion rendered on February 16, 1994,
the district court granted the motions for summary judgment
in favor of each defendant; as to the officers, the court
said their conduct was objectively reasonable and protected
by qualified immunity. Roy has now appealed, challenging the
grant of summary judgment as to each of the defendants. For
-4-
-4-
reasons to be explained, we are mainly concerned with the
section 1983 claim against Whalen; and although we might have
rested on the district court's opinion, this case raises one
important issue of general application.
To lay the groundwork, we invoke the usual boilerplate
propositions: summary judgment is proper if there is no
genuine issue of material fact and the law otherwise warrants
judgment for the moving party; the court must assume that a
jury would resolve credibility issues and draw reasonable
inferences in favor of the opposing party; and on appeal
review of summary judgment is de novo. Fed. R. Civ. P.
56(c); Rivera v. Murphy, 979 F.2d 259 (1st Cir. 1992).
Qualified immunity claims, in particular, are to be resolved
before trial, where possible. Hunter v. Bryant, 502 U.S. 224
(1991).
Section 1983 protects constitutional rights, and the
constitutional standard for measuring Whalen's conduct has a
surface clarity. The Supreme Court has instructed that the
Fourth Amendment's search and seizure provisions control and
that the use of deadly force incident to arrest depends
solely on whether the officer's conduct was "objectively
reasonable." Graham v. Connor, 490 U.S. 386, 397 (1989).
Further, the Court has adopted a qualified immunity test for
section 1983 actions that shields a "reasonable officer"
-5-
-5-
judged by an objective standard. Anderson v. Creighton, 483
U.S. 635, 641 (1987).
If these "reasonableness" tests were designed to mirror
the standards of common-law negligence, it is doubtful
whether summary judgment would be appropriate in this case,
even though the underlying facts are fairly clear. After
all, one might think that a hard look was warranted where
three officers had to shoot and badly injure an intoxicated
man who, although armed with two small knives, was flailing
and stumbling about rather ineffectually. Further, Roy was
prepared to offer an expert to say that the police conduct,
quite apart from the lack of mace, was unreasonable.
The most plausible ground given by the expert for this
judgment was that the officers had been properly trained to
keep a considerable distance--such as 20 feet--from a suspect
armed with a knife. In fact, two officers were only a couple
of feet from Roy when he kicked and lunged; had they been
further away, shots might not have been needed. The expert
was prepared to testify that he had reviewed a tape of the
scene and believed that the officers had room to retreat in
three different directions.
Judgments about reasonableness are usually made by
juries in arguable cases, even if there is no dispute about
what happened (qualified immunity is a different matter, see
Hall v. Ochs, 817 F.2d 920, 924 (1st Cir. 1987)). Of course,
-6-
-6-
the facts might point so clearly toward reasonableness that
no reasonable jury could decide for the plaintiff. But if
this case were treated exactly like a case of careless
driving by a postman, it might well seem to be one suited for
trial. Most drunks with knives are disarmed without anyone
shooting them, and here an expert was prepared to opine that
the officers had been negligent and to explain why.
But the Supreme Court's standard of reasonableness is
comparatively generous to the police in cases where potential
danger, emergency conditions or other exigent circumstances
are present. In Graham v. Connor, 490 U.S. 386 (1989), the
Court said that the "calculus of reasonableness" must make
"allowance" for the need of police officers "to make split-
second judgments--in circumstances that are tense, uncertain,
and rapidly evolving--about the amount of force that is
necessary in a particular situation." Id. at 396-97. Cf.
Daniels v. Williams, 474 U.S. 327 (1986) (negligence not a
due process violation).
Also pertinent is the Court's more general statement in
Anderson v. Creighton addressed to qualified immunity for a
Fourth Amendment violation. The Court used as its standard
the "reasonable officer" and what "could reasonably have been
thought lawful" by such an officer, 483 U.S. at 638, terms
suggesting a measure of deference. The Court then quoted
earlier decisions saying that immunity protects "all but the
-7-
-7-
plainly incompetent or those who knowingly violate the law"
or those who act where "the law clearly proscribed the
actions" taken. Id. at 638-39. See also Malley v. Briggs,
475 U.S. 335, 343 (1986) (qualified immunity leaves "ample
room for mistaken judgments").
What these precedents dictate is this: whether
substantive liability or qualified immunity is at issue, the
Supreme Court intends to surround the police who make these
on-the-spot choices in dangerous situations with a fairly
wide zone of protection in close cases. Decisions from this
circuit and other circuits are consistent with that view.1
And in close cases, a jury does not automatically get to
second-guess these life and death decisions, even though the
plaintiff has an expert and a plausible claim that the
situation could better have been handled differently.
In theory, substantive liability and qualified immunity
are two separate questions and, indeed, may be subject to
somewhat different procedural treatment. In police
misconduct cases, however, the Supreme Court has used the
same "objectively reasonable" standard in describing both the
constitutional test of liability, see Graham, 490 U.S. at
1See, e.g., Gaudreault v. Municipality of Salem, Mass.,
923 F.2d 203 (1st Cir. 1990), cert. denied, 500 U.S. 956
(1991); Krueger v. Fuhr, 991 F.2d 435 (8th Cir.), cert.
denied, 114 S. Ct. 386 (1993); Reese v. Anderson, 926 F.2d
494 (5th Cir. 1991); Ryder v. The City of Topeka, 814 F.2d
1412 (10th Cir. 1987).
-8-
-8-
397, and the Court's own standard for qualified immunity.
Anderson, 483 U.S. at 639. It seems unlikely that this case
would deserve a different outcome even if the qualified
immunity defense had not been raised.
As a matter of legislative policy, one could argue for
less latitude for armed officers, at least in the case of
fleeing suspects who are not an immediate threat. But the
Supreme Court's decisions make the objective reasonableness
test a minimum constitutional standard for liability; a
legislature cannot afford less protection for citizens.
Tennessee v. Garner, 471 U.S. 1 (1985). There is nothing
that prevents a legislature from being tougher on its police
(e.g., by adopting stringent and specific firearms
regulations), or being more generous to victims (through
compensation), or both. Against this background, we
think that the district court properly granted summary
judgment on the section 1983 claim in favor of Whalen.
Perhaps a jury could rationally have found that Whalen could
have done a better job; but in our view a jury could not find
that his conduct was so deficient that no reasonable officer
could have made the same choice as Whalen--in circumstances
that were assuredly "tense, uncertain, and rapidly evolving .
. . ." Graham, 490 U.S. at 397. Put differently, Whalen's
actions, even if mistaken, were not unconstitutional.
-9-
-9-
Roy was armed; he apparently tried to kick and strike at
the officers; he disobeyed repeated instructions to put down
the weapons; and the officers had other reasons, already
described, for thinking him capable of assault. Apart from
the suggestion that mace should be carried by all policemen,
Roy's expert nowhere explains in his affidavit how the police
could have subdued Roy; and it is not obvious that it would
have been a better solution (as the expert seems to suggest)
for the police to retreat, leaving an intoxicated armed man
on the premises--one who had just now committed an apparent
felony in the presence of the police.
Nor is it at all plain that the police could, or should,
have kept their distance. Leaving aside the indications that
Roy moved toward them, one might easily suppose that the best
chance the police had to subdue him without shooting was to
get close enough to push him over or wrest the weapons from
him. The police may have done the wrong thing but they were
not "plainly incompetent" nor were their actions "clearly
proscribed." Anderson, 483 U.S. at 638-39. Cf. Floyd v.
Farrell, 765 F.2d 1, 5 (1st Cir. 1985) (conduct "at least
arguabl[y]" justified).
We have labored over this single point--the Supreme
Court's objective reasonableness standard--without any hope
of articulating a more concrete or precise gloss of the
Court's language. What can be said is that the term
-10-
-10-
reasonableness is used in different ways in different
contexts; and in this one--the use of deadly force by the
police in dangerous situations--the Supreme Court has allowed
more latitude than might be customary in a simple tort case
involving careless driving. Terms like "plainly incompetent"
or concepts like what "a reasonable officer could have
believed" are inherently general, but they add nuance and
provide a sense of direction.
These phrases do not automatically lend themselves to
effective jury instructions. On the contrary, this court has
held that it would be unsuitable to instruct a jury that
excessive force must be "clearly" established to justify
liability; we reasoned that the term could confuse the jury
into thinking that the burden of proof was something more
than preponderance of the evidence, as in the formula "clear
and convincing evidence" often used to heighten the burden of
proof in fraud cases. Tatro v. Kervin, 1994 WL 663805 (1st
Cir. 1994). But we are concerned here not with proof of raw
facts but whether, on known or assumed facts, police behavior
can be deemed egregious enough to submit the matter to a
jury.
The remaining defendants and the state claims were
carefully addressed in the district court's decision, and we
have little to add. The other officers did not use deadly
force or encourage Whalen to do so. Compare Gutierrez-
-11-
-11-
Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989). As for
the police chief and the town, nothing in the expert's
affidavit would make anyone think that the failure to provide
mace was so unusual or patently improper as to reflect
"deliberate indifference" under the demanding standard of
Canton v. Harris, 489 U.S. 378 (1989). The Eleventh Circuit
so held on essentially similar facts in McKinney v. DeKalb
County, Georgia, 997 F.2d 1440 (11th Cir. 1993).
As for the claims under Maine law, Roy points out that
14 Maine Rev. Stat. Ann. 8104-A says that a government
entity, with certain exceptions, is liable for "negligent
acts" involving unspecified "machinery or equipment whether
mobile or stationary." Roy asserts that this language must
include the police use of firearms and establishes a bare
negligence standard for this case. This is perhaps a
literally permissible reading of an ambiguous statute but one
that strikes the reader as a trifle unlikely. Roy's brief
offers no precedent for reading this statute to apply to
police weaponry.
At the same time, another Maine statute provides
explicit immunity for official discretionary action, 14 Maine
Rev. Stat. Ann. 8111(1)(c), and Maine case law has
construed this latter statute to apply to claims of excessive
force. Leach v. Betters, 599 A.2d 424, 426 (Me. 1991) ("At
best, the records support the conclusion that the officers
-12-
-12-
may have used more force than was necessary but it contains
no suggestion that they used more force than they reasonably
thought to be necessary."). Given Leach, we have no reason
to think that Maine imposes more stringent limits on the
police than does federal law; indeed, the reverse may be
true. See Leach, 599 A.2d at 426 (possible exception for
"wanton" conduct).
Affirmed.
-13-
-13-