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,

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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

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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

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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.

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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.

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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

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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).

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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

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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

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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.

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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

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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-

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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

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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

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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.

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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.

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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

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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.

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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.

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incompetent or undertaken in plain violation of established law.

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

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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.

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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.

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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

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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.

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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-

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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).

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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

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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).

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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

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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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35

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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