United States Court of Appeals
For the First Circuit
No. 06-2644
VINCE BERUBE,
Plaintiff, Appellee,
v.
CARLY CONLEY; ERIC W. SYPHERS; MATTHEW VIERLING,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, Chief U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.
Edward R. Benjamin, Jr. with whom Rosie McKinley Williams was
on brief for appellants.
John S. Campbell for appellee.
October 31, 2007
*
Of the Northern District of California, sitting by
designation.
Schwarzer, District Judge. Before the court is an appeal
from the denial of a motion for summary judgment by three police
officers in an action alleging excessive force in violation of 42
U.S.C. § 1983 and Maine law. Following the recommendation of the
magistrate judge, the district court denied summary judgment based
on qualified immunity to three officers who fired at the plaintiff
while he was on the ground, already shot. The magistrate judge
reasoned that the affidavit of a third-party witness who observed
the shooting from a nearby apartment created a material issue of
fact as to whether the officers used excessive force.
Specifically, the magistrate judge concluded that the affidavit,
which stated that the plaintiff did not have a hammer in his hands,
disputed whether the officers could reasonably perceive that the
plaintiff continued to present a threat after he was on the ground.
On de novo review of the record we conclude that the key
elements of the event are not disputed, even crediting all of the
plaintiff's competent evidence. A question of law is thus
presented as to whether the officers used excessive force in
continuing to shoot at the plaintiff. The plaintiff himself does
not recall the events at issue. We find that on the undisputed
facts, the officers did not use excessive force and are entitled to
immunity. We reverse and remand for the entry of judgment for
defendants.
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I. FACTUAL AND PROCEDURAL BACKGROUND
We set forth the background facts generally from the
record, drawing inferences in favor of the plaintiff. We describe
the key facts more specifically later in the analysis.
On the evening of December 17, 2003, Vincent Berube set
out to commit suicide. He parked his truck in a vacant lot in
Lewiston, Maine, and began to slit his wrists and stab himself in
the chest. He was interrupted when a car pulled up behind him.
Assuming it was a police car, Berube left the lot and drove to the
fenced-in parking area behind the Lewiston police station to, in
his words, “raise a little hell.”
As Berube drove his truck into the compound, Officer
Carly Conley walked out of the back door of the police station
toward her cruiser in the compound. She heard the truck door open,
which was followed by yelling and screaming and the sound of
windows being smashed. Conley approached the truck, and believing
the driver to be highly agitated, she radioed for backup. As she
rounded the back of the truck and came within ten feet of Berube,
she saw him raise a shining object, which appeared to her to be a
large hammer. Officer Conley is five feet, three inches tall and
weighs 125 pounds, while Berube appeared to be about six feet tall
and weigh 200 pounds. Conley yelled to Berube to stop and put his
weapon down. Believing Berube would strike her, Conley fired at
him until he fell to the ground.
Meanwhile, Officers Eric Syphers and Matthew Vierling
arrived at the scene with their weapons drawn. They had heard
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shots but did not know who had fired. They saw Berube lying on his
right side with his back toward them, his hands not visible.
Syphers ordered Berube to stay down and show his hands. Berube
began to roll over toward them, and as Berube’s right hand became
visible, Syphers saw a silver-colored object in his hand. Vierling
and Syphers, having heard the shots and seeing a metallic object,
believed that Berube was armed and was positioning himself to fire.
Syphers ordered Berube to stop moving and show his hands. When
Berube did not respond, Vierling and Syphers fired until Berube
stopped trying to get up.
According to the dispatch recording of Conley’s call for
backup, ten seconds elapsed between Conley’s call and the end of
the incident, which took place on a dark and rainy night.
Berube was arrested and later hospitalized. He was
indicted by the Androscoggin County grand jury for criminal
threatening with the use of a dangerous weapon (a hammer) by
intentionally or knowingly placing Officer Conley in fear of
imminent bodily injury. Berube pleaded guilty to the charge on
September 23, 2004.
On November 17, 2005, Berube filed this action against
Officers Conley, Syphers and Vierling, alleging the use of
excessive force in violation of 42 U.S.C. § 1983 and state law (Me.
Rev. Stat. Ann. tit. 15, § 704, “wanton or oppressive” use of
force; Me. Rev. Stat. Ann. tit. 5, § 4682, the Maine Civil Rights
Act (“MCRA”); and Me. Rev. Stat. Ann. tit. 14, § 8101, et seq., the
Maine Tort Claims Act (“MTCA”)). Defendants moved for summary
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judgment on the ground of qualified immunity. Berube submitted,
inter alia, an affidavit and statement by Jennifer Boren.
The magistrate judge recommended denial of the motion to
the extent that the three officers shot Berube while he was on the
ground, finding that there was a dispute of material fact created
by the Boren affidavit about whether Berube had a hammer and
presented a threat to the officers, and thus whether a reasonable
officer would have known that shooting Berube while he was on the
ground and posed no threat to the officers was a constitutional
violation. The district court affirmed the recommended decision
and granted the motion as to any claims for violation of
substantive or procedural due process and for the use of excessive
force by Conley “in circumstances where the plaintiff’s conviction
in state court for criminal threatening necessarily involved the
plaintiff’s placing Conley in fear of imminent bodily injury by the
plaintiff.” In all other respects the motion was denied.
This timely appeal followed.
II. DISCUSSION
A. Appellate Jurisdiction
Berube contends that we lack jurisdiction to entertain
this appeal from the denial of summary judgment. He cites Johnson
v. Jones, 515 U.S. 304 (1995), for the proposition that
interlocutory review is precluded where the district court has
denied summary judgment on the ground that facts material to the
decision on qualified immunity are disputed. But Johnson does not
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bar this appeal. Even accepting Berube’s version of events, except
so far as it would contradict his guilty plea, it is a question of
law whether on the facts so assumed there is any violation of law.
Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Berthiaume v.
Caron, 142 F.3d 12, 15 (1st Cir. 1998). Thus we may consider this
appeal on the basis of the facts offered or not disputed by Berube.
Whether such a set of assumed facts constitutes a constitutional
violation is a question of law we review de novo. Santana v.
Calderon, 342 F.3d 18, 23 (1st Cir. 2003); Berthiaume, 142 F.3d at
15.
B. Qualified Immunity
This circuit applies a three-part test for qualified
immunity. Defendants are entitled to qualified immunity unless
“(1) the facts alleged show the defendants’ conduct violated a
constitutional right, and (2) the contours of this right are
‘clearly established’ under then-existing law (3) such that a
reasonable officer would have known that his conduct was unlawful.”
Santana, 342 F.3d at 23. See also Riverdale Mills Corp. v.
Pimpare, 392 F.3d 55, 59-60 (1st Cir. 2004).
An officer’s use of deadly force is subject to the
reasonableness requirement of the Fourth Amendment. Tennessee v.
Garner, 471 U.S. 1, 7 (1985). The test is whether the officer’s
conduct was “objectively reasonable,” Graham v. Conner, 490 U.S.
386, 397 (1989), that is, whether the officer has “probable cause
to believe that the suspect poses a significant threat of death or
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serious physical injury to the officer or others,” Garner, 471
U.S. at 3. Qualified immunity shields a ”reasonable officer” as
judged by this objective standard. Anderson v. Creighton, 483 U.S.
635, 638, 641 (1987) (noting that immunity protects “all but the
plainly incompetent or those who knowingly violate the law”
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986) (internal
quotation marks omitted)).
We have said that “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.” Roy v. Inhabitants of City of
Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). And we noted that
under Graham, 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. (quoting Graham, 490 U.S. at 396-97);
see also Malley, 475 U.S. at 343 (stating that qualified immunity
leaves “ample room for mistaken judgments”).
C. The Undisputed Facts
We turn now to the record to determine whether, on the
facts offered by Berube or not disputed by him, the use of force by
the officers was reasonable. This appeal concerns the denial of
immunity for the claim that the shots that hit Berube after he was
on the ground constituted excessive force. The key facts concern
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the shots fired by Conley after Berube fell to the ground and the
conduct of the two officers who came to Conley’s aid. The
pertinent facts are described below.
Berube testified at his deposition that when he got to
the police station, he planned to “raise a little hell.” He
testified that after he pulled into the compound, “I jumped out of
my truck and ran to the tailgate and grabbed my hammer and then I
went out and started smashing car windows.” Asked whether he
charged at Conley with the hammer, Berube answered, “I don’t know
whether I did it or not.” He only recalled being shot, after which
“things went blank.” Berube’s guilty plea established that he
“intentionally or knowingly place[d] Carly Conley in fear of
imminent bodily injury with the use of a dangerous weapon, a
hammer.”
Officer Conley testified that as she walked across the
compound, she saw Berube smashing the windows of a police cruiser
and heard him screaming and yelling. She called for backup.
Berube, who was about six feet tall, spotted her, looked at her,
and charged at her with an object in his hand, screaming and
yelling. She ordered him to stop and drop the weapon as she was
backpedaling. When he ignored her command, she pulled her weapon
and shot him from about six or seven feet away, while she was still
moving backward. At some point, Berube fell to his knees and tried
to get back up. Conley fired until the threat ceased. The entire
incident lasted ten seconds.
Officers Syphers and Vierling arrived at the scene after
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hearing Conley call for help. Officer Syphers testified that as he
hit the emergency bar on his way out the back door of the station,
he heard gunshots. As he came through the door, he saw Conley
backpedaling away from Berube, who was “sort of like kneeling,
laying.” He did not know who was firing. He ordered Berube, who
was ten feet away lying on his right side with his back toward
Syphers, to show his hands and stay down. Syphers saw Berube roll
toward him with a metallic object in his right hand. Syphers
believed Berube was going to use a weapon and so then fired.
Vierling and Syphers fired until Berube stopped trying to get up.
The whole episode took place in the darkness and rain and was over
within ten to fifteen seconds of Syphers’s arrival on the scene.
Officer Vierling testified that he heard a “desperate
plea for cover now” from Conley. He and Officer Syphers ran to the
door leading from the station to the compound. As Vierling reached
the door, he heard a couple of shots. Coming out of the door, he
saw Conley with her firearm drawn in front of her, backpedaling
toward the station. Vierling heard a third shot. He saw Berube
lying on his side, with his back toward him. Vierling considered
Berube a threat when Berube failed to comply with Syphers’s orders
not to move and to show his hands. He saw Berube attempting to
roll over, which led Vierling to believe that Berube was going to
fire a gun. Vierling thought Berube had a gun because he had heard
a shot but had not seen a muzzle flash from Conley’s gun.
Berube does not deny that he had a hammer. Indeed,
something thought to be a weapon was kicked away from him and that
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item was found to be a hammer. Berube does not claim that the
officers could clearly see he had no weapon and that he had not
fired any shots. Nor does he dispute the fact that he did not
comply with the officers’ orders.
In support of his opposition to the summary judgment
motion, Berube primarily relied on the affidavit of Jennifer Boren.
Boren was looking down at the police compound from a fourth-floor
apartment a block away on a dark, rainy winter night at 9:45 p.m.
The magistrate judge recounted the information in the Boren
affidavit as follows:
At 9:45 p.m. on December 17, 2003 Jennifer Boren was sitting
at an open window in her fourth floor apartment at 333 Lisbon
Street in Lewiston. At that time Boren heard a man and a woman
yelling in the police parking lot, which she could see from
the window. Boren was surprised to see that the woman was a
police officer. She saw the man raise his hand in the air;
the officer then drew her gun and shot at the man. Boren saw
two male officers come into the parking lot after the man fell
to the ground. Boren heard at least another five gunshots
while the man was on the ground. She gave a statement to the
police on the evening of December 17, 2003 and a written
statement the next morning at the police station. She was
asked by the police whether the man had a hammer and she said,
"No."
The magistrate judge and the district court denied qualified
immunity on the grounds that the Boren affidavit directly disputed
the officers’ argument that "[i]t was reasonable under the
circumstances" for them "to believe that someone else in the
compound was armed and shooting, or at least in a position to
shoot, based on their observations in the seconds after they exited
the building and entered the scene of an ongoing shooting."
The affidavit does dispute Conley's testimony that Berube
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had a hammer during the initial encounter. There is little doubt
that Berube did have a hammer, as he used it to break car windows
and it was found nearby. Boren did confirm that Berube raised his
hand in the air and only then did Conley shoot him. But in any
event, Berube's conviction for criminal threatening establishes
that he possessed a dangerous weapon during his encounter with
Conley, and he is bound by this determination regardless of what
Boren did or did not see.
It may well be true that Conley continued to fire as
Berube fell to or lay on the ground. But it is clear from the very
brief time that elapsed that she made a split-second judgment in
responding to an imminent threat and fired a fusillade in an
emergency situation. Conley’s actions cannot be found unreasonable
because she may have failed to perfectly calibrate the amount of
force required to protect herself.
With respect to the other officers, whether Berube
initially held the hammer when attacking Conley does not matter.
When Syphers and Vierling arrived Berube was already on the ground,
and the officers believed that he was disobeying orders to stay
down and show his hands and that, according to one officer, he had
a metal object that appeared to be a gun. The reasonableness of
their decision to fire, based on the circumstances they observed in
a matter of seconds, is not impacted by the question of whether
Berube had earlier held up a hammer.
Berube offers two other arguments on appeal. First, he
says there is no evidence the officers were not lying in giving
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their versions of the events. But there is no evidence that they
were lying. The three officers' accounts are consistent with each
other and with the physical evidence. Berube has offered nothing
that challenges their veracity. Indeed, save for the point already
discussed, the Boren affidavit is entirely consistent with the
officers’ testimony.
Berube also argues that, regardless, the officers had
other means available to subdue Berube. That does not establish
that the officers’ actions were unreasonable.
The undisputed facts demonstrate that the circumstances
in which the officers found themselves were “tense, uncertain, and
rapidly evolving.” Graham, 490 U.S. at 397. Conley was confronted
by a much larger man charging her with what he has conceded was a
dangerous weapon in his hand. We cannot say that any reasonable
officer, confronted with the necessity to subdue an apparent
attacker, would not have made the same choice. While one might
regret Conley's failure to stop shooting as soon as Berube went
down, immunity encompasses “mistaken judgments.” Malley, 475 U.S.
at 343.
Syphers and Vierling also faced a tense and uncertain
situation when they rushed from the station to assist a fellow
officer calling for help. They had heard firing from unidentified
weapons and saw Berube rolling on the ground, refusing to obey
their orders and potentially preparing to fire at them. Although
Berube points to the Boren affidavit to dispute Syphers and
Vierling’s testimony that Berube’s actions appeared to present a
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threat, there is no dispute that Berube did not obey the officers’
commands to show his hands. Faced with the necessity of making a
split-second judgment on a rainy night about how to neutralize the
threat they perceived from Berube, the officers’ actions cannot be
said to have been “plainly incompetent.” Anderson, 483 U.S. at
638-39. We conclude that on the undisputed facts, the conduct of
the three officers “can[not] be deemed egregious enough to submit
the matter to a jury.” Roy, 42 F.3d at 696.
D. State Law Claims
The disposition of a 42 U.S.C. § 1983 claim also controls
a claim under the MCRA. Dimmitt v. Ockenfels, 220 F.R.D. 116, 123
(D. Me. 2004). Defendants are therefore entitled to summary
judgment on the MCRA claim.
The § 1983 claim also informs the disposition of Berube’s
claim under the MTCA. The MTCA’s immunity defense covers officers’
discretionary conduct unless that conduct “was so egregious as to
clearly exceed any discretion the officers could have possessed
under the circumstances.” Dimmitt, 220 F.R.D. at 125. Because we
find that the officers’ conduct was reasonable under the
circumstances, that conduct cannot be said to be so egregious as to
deprive the officers of the immunity defense, and they are entitled
to summary judgment on the MTCA claim as well.
Finally, because the defendants’ conduct was reasonable
and not excessive, they are also entitled to summary judgment on
Berube’s state law claim alleging the wanton or oppressive use of
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force.
We reverse and remand for entry of judgment for
defendants.
REVERSED AND REMANDED.
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