Estate of Bennett v. Wainwright

United States Court of Appeals
For the First Circuit

No. 07-2169

ESTATE OF DANIEL BENNETT, II,
ARLENE BEDARD, ISABEL BEDARD, and LAURIE HART,
Plaintiffs, Appellants,

v.

CHRISTOPHER WAINWRIGHT, MATTHEW BAKER, TIMOTHY TURNER,
JAMES MICLON, JAMES DAVIS, LLOYD HERRICK, and
COUNTY OF OXFORD, MAINE,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Cudahy,* and Torruella, Circuit Judges.

Thomas J. Connolly, for appellants.
Peter T. Marchesi, with whom Cassandra S. Shaffer and Wheeler
& Arey, P.A., were on brief, for appellees Christopher Wainwright,
Matthew Baker, James Miclon, James Davis, Lloyd Herrick, and County
of Oxford.
Ronald W. Lupton, Assistant Attorney General, with whom G.
Steven Rowe, Attorney General, and Paul Stern, Deputy Attorney
General, was on brief, for appellee Timothy Turner.

November 26, 2008

*
Of the Seventh Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. This appeal involves the

tragic death of Daniel Bennett II ("Bennett"), a mentally ill young

man, when he opened fire against Maine law enforcement officers who

had been called to his home. The officers responded with gunfire

and Bennett was killed. Bennett's estate ("the Estate") -- his

mother, Arlene Bedard ("Arlene"); his grandmother, Isabel Bedard

("Isabel"); and his sister, Laurie Hart ("Laurie") -- brought suit

against the officers asserting numerous violations of both the

Estate's and Bennett's constitutional rights, as well as state law

claims. The district court rejected all of the Estate's causes of

action by granting the defendants' motions to dismiss, for judgment

on the pleadings, and for summary judgment. The Estate now

appeals. We affirm the judgment of the district court for the

reasons explained herein.

I. Background

A. Facts

As this appeal arises from dismissals pursuant to Federal

Rules of Civil Procedure 12(b)(6), 12(c), and 56, we recite the

facts in the light most favorable to the Estate as non-movant,

drawing all reasonably supported inferences in its favor. See

Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (addressing

Rule 56 summary judgment); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d

26, 29 (1st Cir. 2008)(addressing Rule 12(c) judgment on the

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pleadings); Young v. Lepone, 305 F.3d 1, 8 (1st Cir. 2002)

(addressing Rule 12(b)(6) motion to dismiss).1

Between 1996 and 2000 Bennett suffered various

psychological problems for which he was taking prescribed

medication. In November 1999, Bennett stopped taking his

medication. During the course of Bennett's illness, Maine state

law enforcement officials had been summoned to his home on various

occasions. Those police interventions resulted in Bennett being

safely transported to a mental care facility each time.

The events giving rise to the present appeal took place

on January 21, 2000. On that morning Bennett walked from

Bucksfield, Maine, to his grandmother's house in Sumner, Maine

("Bedard residence"), a distance of between ten and fifteen miles,

in the snow wearing only slippers. Upon his arrival, he beat a

stray dog to death. Though the Estate asserts that his family did

not perceive Bennett to be a threat, Bennett's grandmother Isabel

became concerned and attempted to call his mother, Arlene. When

Arlene could not be reached, Isabel called Bennett's sister,

Laurie. Laurie eventually contacted Arlene, who said she would go

to the Bedard residence. Laurie nonetheless remained concerned and

1
Nonetheless, because the lower court found that the Estate had
failed to comply with the requirements of Maine District Court
Local Rule 56, some unsupported factual averments have been
stricken from the record and cannot be considered with regard to
the motion for summary judgment. See D. Me. R. 56(d). We
identify these stricken averments in our section addressing summary
judgment.

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called her cousin Derrick Laughton ("Laughton"), to request that he

go to the Bedard residence immediately; he agreed to do so. Laurie

then called her husband at work and told his employer that there

was a real emergency. Laurie's husband also went to the Bedard

residence.

Upon Arlene's arrival at the house, she found Isabel,

Laughton, and Laughton's father there. Arlene tried speaking to

Bennett, but he replied "leave me the fuck alone, I don't want to

kill you, too." Arlene then called 9-1-1 and stated "[Bennett]

just told me to get out of there, he's going to kill me, so I came

out here to call you." Arlene also told the dispatcher that

Bennett had killed a dog with a bat; that he was not taking his

prescribed medication; that there were firearms inside the Bedard

residence which were either non-functional or the location of which

was unknown to Bennett; and that they "need somebody right away."

The Estate asserts that Arlene specifically indicated she did not

want police assistance, just a mental health transport.

The 9-1-1 operator contacted the Oxford County Sheriff's

Department ("OCSD") at approximately 2:00 p.m. Deputy Sheriff

Christopher Wainwright was the first officer to arrive at the

scene. Wainwright had been told that Bennett had beaten a dog to

death with a baseball bat, had threatened family members and that

there was a rifle and a shotgun present in the Bedard residence.

He thereupon requested that a perimeter be established around the

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residence and that a Maine state police unit, as well as Deputy

Sheriff Matthew Baker and the State Warden, also respond. The

Estate asserts that Wainwright was known in the community as

"Deputy Death" and that he had a "proclivity for confrontational

escalation of police-citizen encounters" because he was responsible

for the only other police shooting death in the history of Oxford

County. The victim in that instance was also a mentally ill

person.

Wainwright and Maine State Police Officer Timothy Turner

entered the Bedard residence almost simultaneously. They spoke to

the family members gathered in the kitchen and were shown the door

leading through the living room to the back of the house where

Bennett was located. Wainwright and Turner then notified the

family that they had to evacuate. The family did so against their

wishes. Isabel insisted that they keep the wood fires going inside

the house lest the water pipes freeze and burst in the extremely

cold weather. Wainwright and Turner accompanied the family to

Laurie's residence nearby. As they were leaving, Bennett

momentarily emerged from the back of the house and yelled "get the

fuck out!"

OCSD Captain James Miclon arrived on the scene shortly

thereafter and became the ranking officer. He ordered Turner and

Wainwright to return to the house and assume a defensive position

until the Maine state police tactical ("SWAT") team arrived. Chief

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Deputy James Davis subsequently arrived on the scene, became the

ranking officer, and confirmed these orders. Wainwright and

Turner, along with Deputy Sheriff Matthew Baker, re-entered the

Bedard residence at approximately 3:10 p.m. and took positions in

the kitchen. Baker brought with him a department-issue shotgun

which he later exchanged for a lighter "long gun," an AR-15

belonging to Wainwright. As the SWAT team assembled outside,

Wainwright, Turner, and Baker took turns monitoring the doorway

that led through the living room to where Bennett was located. At

that point, all of the defendants believed that Bennett had to be

taken into protective custody and transferred to a psychiatric

facility.

Shortly thereafter, Miclon contacted the District

Attorney's office and sought a warrant, but was refused for lack of

probable cause. In an effort to secure additional information,

Miclon visited Laurie's house to speak to the assembled Bedard

family members. While there, both he and Laurie tried to contact

Bennett by phone but were unsuccessful. The family members then

prepared two diagrams of the Bedard residence indicating the

location of the firearms, and Arlene again informed Miclon that

Bennett did not know where the guns were and that the only

functional firearm was a single-shot breach-loader. The Estate

asserts that Miclon was "shocked and despondent" about what was

happening back at the Bedard residence to the point that he vomited

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in Laurie's restroom. Miclon also allegedly told the assembled

family members that the officers at the house "were out of

control," were "too gung ho," were going "way too fast," and had

prevented him and available mental health workers from contacting

Bennett.

Back at the Bedard residence, Wainwright identified

himself from the kitchen and tried communicating with Bennett but

was unsuccessful. Thereafter, Bennett emerged from the back of the

house and entered the living room briefly on two occasions. On one

of those occasions, Bennett surprised Baker by saying "oh shit" and

Baker responded by pointing the AR-15 at him and ordering him to

put his hands up. When Bennett did so, he was clutching a roll of

toilet paper. The estate believes that Bennett was headed towards

the restroom located beyond the kitchen. After both such

instances, Bennett retreated peacefully towards the back part of

the house.

On his third foray, however, Bennett entered the living

room without warning and aimed a single-shot breach-loader shotgun

at Baker, to which Baker responded by yelling "Danny, drop the gun,

drop the gun." Bennett nonetheless fired and Baker responded with

five rounds from the AR-15. Wainwright also fired a full thirteen-

shot magazine from his 40-caliber handgun and then reloaded.

Turner did not fire because he was behind a wall that obstructed

his view. After reloading, Wainwright walked into the living room

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and fired two or three more shots at Bennett, who had fallen behind

the sofa. The Estate characterizes these shots as a "coup de

grace" because one shot was to Bennett's head and the other to his

chest "straight down."

After the shooting ended, Wainwright called a "signal

2000" and members of the OCSD and Maine state police rushed the

Bedard residence. A sergeant with the Maine state police performed

CPR on Bennett, and Bennett was transported to a hospital at 4:20

p.m. He was pronounced dead at 5:20 p.m. Bennett had been hit by

the AR-15 five times, resulting in two through-and-through wounds

in the left arm, a wound to the left shoulder, and Bennett's left

pinky finger being shot off. The 40-caliber handgun produced two

wounds, one to the head and the other to the chest.

B. Procedural History

On January 19, 2006, the Estate brought suit against

Wainwright, Baker, Miclon, Davis, Lloyd Herrick (the Sheriff of

Oxford County), the County of Oxford ("County") (collectively,

"County defendants"), and Turner (collectively, "defendants") in

Maine state court. The defendants removed the case to federal

court on February 3, 2006, where the estate asserted 42 U.S.C.

§ 1983 claims premised on a panoply of constitutional violations,

along with one supplementary claim of breach of state law.

Specifically, and as concerns this appeal, the Estate alleged that

the defendants had violated Bennett's substantive due process,

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equal protection, and Fourth Amendment rights; had violated the

Estate's rights against uncompensated takings under the Fifth

Amendment and unlawful seizures under the Fourth Amendment; had

engaged in a § 1983 conspiracy; and had violated the Maine Civil

Rights Act, Me. Rev. Stat. Ann. tit. 5, § 4652. The Estate also

asserted that Herrick and the County were subject to supervisory

liability under § 1983, and asked for punitive damages to be levied

against all defendants. The parties conducted discovery and

sixteen depositions were taken.

Thereafter, Turner moved to dismiss the complaint for

failure to state a claim for which relief could be granted, and the

defendants moved for judgment on the pleadings and summary

judgment. Objections to these motions were filed on both sides,

and the motions were referred to a magistrate judge who issued his

report and recommendation on May 30, 2007. The district court

adopted the recommendation in its totality on July 9, 2007.

Regarding the issues on appeal, the district court (1) granted

Turner's motion to dismiss the substantive due process claim; (2)

granted the County defendants' motion for judgment on the pleadings

regarding the substantive due process and Fifth Amendment claims;

and (3) granted the defendants' motions for summary judgment as to

all Fourth Amendment, equal protection, supervisory liability,

§ 1983 conspiracy, punitive damages, and state law claims. The

Estate now appeals.

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 II. Discussion

A. Motion to Dismiss

1. Standard of Review

We review a district court's grant of a Federal Rule of

Civil Procedure 12(b)(6) motion to dismiss de novo. Gagliardi v.

Sullivan, 513 F.3d 301, 305 (1st Cir. 2008). In doing so, we

"accept[] the [appellants'] well-pleaded facts as true . . .

indulging all reasonable inferences therefrom." Ramos-Piñero v.

Puerto Rico, 453 F.3d 48, 51 (1st Cir. 2006). Nevertheless, we

reject "unsupported conclusions or interpretations of law." Stein

v. Royal Bank of Canada, 239 F.3d 389, 392 (1st Cir. 2001) (quoting

Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 971 (1st Cir.

1993)(internal quotation mark omitted)). To survive Rule 12(b)(6)

dismissal, the Estate's well-pleaded facts "must 'possess enough

heft' to set forth 'a plausible entitlement to relief.'"

Gagliardi, 513 F.3d at 305 (quoting Bell Atl. Corp. v. Twombly, 127

S. Ct. 1955, 1959 (2007)).

2. Substantive Due Process

Regarding the district court's grant of Turner's motion

to dismiss, the Estate appeals only the dismissal of its

substantive due process cause of action, which consists of a direct

claim for the violation of the Estate members' rights and a

consortium claim for the violation of Bennett's rights. At the

motion to dismiss stage, we must determine "whether, using all of

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the well-pleaded facts stated in the complaint and viewing them in

the light most favorable to the plaintiff, the plaintiff has stated

a claim for a violation of a constitutional right." Riverdale

Mills Corp. v. Pimpare, 392 F.3d 55, 61 (1st Cir. 2004). To meet

this burden on a substantive due process cause of action, the

Estate must present a well-pleaded claim that a state actor

deprived it of a recognized life, liberty, or property interest,

and that he did so through conscience-shocking behavior. Clark v.

Boscher, 514 F.3d 107, 112 (1st Cir. 2008); see also Ramos-Piñero,

453 F.3d at 53 (stating that the "shock the conscience" standard

implicates behavior "so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience" (quoting

County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998))).

"Behavior 'intended to injure in some way unjustifiable by any

government interest' - is the sort of official action most likely

to 'shock the conscience.'" Ramos-Piñero, 453 F.3d at 53 (quoting

Lewis, 523 U.S. at 849). The Estate asserts that it has shown that

the defendants engaged in conscience-shocking behavior, and that it

may also recover under a state-created danger theory because the

defendants caused Bennett to become vulnerable by forcing his

family to leave the Bedard residence, thus placing Bennett in the

care of Wainwright, who was also known as "Deputy Death."

Under either theory of liability, however, the Estate

"must first show a deprivation of a protected interest in life,

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liberty, or property." Rivera v. Rhode Island, 402 F.3d 27, 33-34

(1st Cir. 2005). The Estate, without more, asserts that the

defendants carried out deprivations of all three such interests.

Given the direct and consortium nature of the Estate's claim, we

read this statement as asserting deprivations of Bennett's life,

liberty, and property interests as well as those of the individual

Estate members. This is not enough to meet the Estate's burden.

Aside from the deprivation of Bennett's life interest,

which is self-evident, the Estate does not identify what specific

deprivations it allegedly suffered or even if they were of

Bennett's or the Estate members' interests. Neither does the

Estate identify any legal authority entitling it to the interests

of which it claims to have been deprived. See Dávila-Lópes v.

Zapata, 111 F.3d 192, 195 (1st Cir. 1997) (stating that a

recognized interest that entitles its holder to due process must be

"defined by an existing rule or understanding that stems from an

independent source such as state law . . ." (quoting Bd. of Regents

of State Colleges v. Roth, 408 U.S. 564, 577 (1972)) (internal

quotation marks omitted). Accordingly, the Estate has waived its

consortium claim premised on the deprivation of Bennett's liberty

and property interests, as well as all of its direct substantive

due process claims. See Casillas-Díaz v. Palau, 463 F.3d 77, 83

(1st Cir. 2006) (repeating the well-known adage that issues not

substantially developed on appeal are deemed waived); cf. Centro

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Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 8 (1st

Cir. 2005).

The remaining substantive due process claim premised on

the deprivation of Bennett's life interest also fails because this

is in essence an excessive force claim that should be -- and is --

brought under the Fourth Amendment. See Graham v. Connor, 490 U.S.

386, 395 (1989) ("[A]ll claims that law enforcement officers have

used excessive force -- deadly or not -- in the course of . . .

[the] 'seizure' of a free citizen should be analyzed under the

Fourth Amendment and its 'reasonableness' standard, rather than

under a 'substantive due process' approach." (emphasis in

original)). As an alternative constitutional claim is available

here, the Estate's substantive due process claim cannot advance.

See Coyne v. Cronin, 386 F.3d 280, 287 (1st Cir. 2004) (stating

that substantive due process "may itself be invoked to challenge

executive conduct where no other constitutional provision more

directly applies"); see also Pagán v. Calderón, 448 F.3d 16, 34

(1st Cir. 2006).2 The district court thus properly granted

Turner's motion to dismiss.

2
Since the Estate failed to meet the threshold pleading
requirement of identifying the deprivation of a recognized
interest, we need not reach the question of whether this circuit
recognizes a state-created danger theory of liability. See Rivera,
402 F.3d at 35.

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 B. Judgment on the Pleadings

1. Standard of Review

We review a trial court's entry of judgment on the

pleadings de novo. Feliciano v. Rhode Island, 160 F.3d 780, 788

(1st Cir. 1998). A motion for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c) is treated much like a Rule

12(b)(6) motion to dismiss. Pérez-Acevedo, 520 F.3d at 29. Hence

such judgment will issue upon a timely motion if the non-movant's

factual allegations "'raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint

are true.'" Id. (quoting Twombly, 127 S. Ct. at 1965). This

inquiry extends only to the pleadings, and we read the facts in the

light most favorable to the Estate as non-movant, granting all

reasonable inferences in its favor. See Zipperer v. Raytheon Co.,

Inc., 493 F.3d 50, 53 (1st Cir. 2007); Gulf Coast Bank & Trust Co.

v. Reder, 355 F.3d 35, 38 (1st Cir. 2004).

2. Substantive Due Process

On appeal, the Estate challenges the district court's

dismissal by judgment on the pleadings of its substantive due

process claim against the County defendants; it asserts the same

arguments it made against Turner on the motion to dismiss. As the

Rule 12(c) and 12(b)(6) standards of review are so similar,

however, our prior analysis of the Estate's substantive due process

claim -- which is based solely on issues of law -- is fully

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applicable to the claim asserted against the County defendants.

This claim therefore fails because the Estate has not met its

pleading requirement of identifying the deprivation of a recognized

life, liberty, or property interest that is cognizable under the

Fourteenth Amendment. See supra, section B.2.

3. Equal Protection

In its original complaint, the Estate asserted an equal

protection claim against all defendants that the district court

dismissed at different procedural junctures; by judgment on the

pleadings for Wainwright and Baker, and on summary judgment for the

remaining defendants. On appeal, however, the Estate challenges

only the district court's grant of summary judgment on this claim.

It does not mention the grant of judgment on the pleadings for

Wainwright and Baker, nor does it argue that it has stated a valid

equal protection claim based solely on the pleadings. See Gulf

Coast, 355 F.3d at 38 (stating that a motion for judgment on the

pleadings is decided solely on the information contained in the

pleadings; if evidence outside the record is considered the motion

becomes one for summary judgment). As such, the Estate has waived

its equal protection claim against Wainwright and Baker. Casillas-

Díaz, 463 F.3d at 83.

4. Taking

The Estate also challenges the district court's dismissal

by judgment on the pleadings of its Fifth Amendment takings claim.

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According to the Estate, the defendants' actions in driving the

Estate members from the Bedard residence, damaging the home with

bullet holes and blood stains, and allowing the water pipes within

the residence to freeze and burst, constitute a taking carried out

under color of state law.

The takings clause applies to the individual states by

virtue of the Fourteenth Amendment. Torromeo v. Town of Fremont,

438 F.3d 113, 114 n.1 (1st Cir. 2006). Nonetheless, a threshold

requirement for establishing this cause of action is that the

plaintiff identify a recognized property interest that has been the

subject of an illegal taking. P.R. Tel. Co. v. Telecomms.

Regulatory Bd., 189 F.3d 1, 16 (1st Cir. 1999) (citing Parella v.

Ret. Bd. of the R.I. Employees' Ret. Sys., 173 F.3d 46, 58 (1st

Cir. 1999)). Estate member Laurie is unable to satisfy this

requirement because she does not allege to have been a resident or

an owner of the Bedard residence at the time of this tragic

incident. Thus she has no property interest that was allegedly

taken and her claim was properly dismissed.

Isabel as owner and Arlene as a resident of the Bedard

residence argue that they were subject to a temporary physical

taking. The temporary nature of a physical invasion of private

property does not itself take it outside the purview of the Fifth

Amendment. See Asociación de Subscripción Conjunta del Seguro de

Responsabilidad Obligatorio v. Flores-Galarza, 484 F.3d 1, 28 (1st

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Cir. 2007) (citing First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304, 318 (1987)). However, it is

unclear whether a seizure made in the course of police activity

such as that involved in this case is cognizable as a Fifth

Amendment taking. See 1 LaFave, Search and Seizure § 1.10(e) (4th

ed. 2004). But regardless, a physical taking does not violate the

Constitution unless just compensation is denied. See Deniz v.

Municipality of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002)

(quoting Williamson County Reg'l Planning Comm'n v. Hamilton Bank,

473 U.S. 172, 194 (1985)). In order to state a valid takings claim

then, Isabel and Arlene were required to have sought compensation

through state law mechanisms, or to prove that such mechanisms were

unavailable or inadequate. Id. They have made no such pleading,

and as such the district court properly dismissed their takings

claim by judgment on the pleadings. See Tower v. Leslie-Brown, 326

F.3d 290, 297-98 (1st Cir. 2003) (finding a takings claim properly

dismissed because the plaintiff-appellant did not go through Maine

state procedures to seek reimbursement for $1.60 in long distance

calls that a state trooper made from her home).

C. Summary Judgment

1. Standard of Review

We review a district court's grant of summary judgment de

novo. Rodríguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d

28, 30 (1st Cir. 2008). In doing so, we read the facts in the

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light most favorable to the Estate as non-movant, granting all

reasonable inferences in its favor. Fiacco v. Sigma Alpha Epsilon

Fraternity, 528 F.3d 94, 98 (1st Cir. 2008) (citing Griggs-Ryan v.

Smith, 904 F.2d 112, 115 (1st Cir. 1990)). Nonetheless, we are not

required to contemplate conclusory allegations, improbable

inferences, or unsupported speculation. Id. (citing Suárez v.

Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)). Reversal is

warranted if "the evidence on the record is sufficiently open-ended

to permit a rational factfinder to resolve the issue in favor of

either side." Rodríguez-Rivera, 532 F.3d at 30 (quoting Maymí v.

P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008) (internal

quotation mark omitted)).

a. Local Rule 56

District of Maine Local Rule 56 requires a party moving

for summary judgment to submit a statement, set forth in separately

numbered paragraphs, detailing the material facts it alleges are

undisputed. D. Me. R. 56(b). The party opposing summary judgment

must then respond with its own opposing statement admitting,

denying, or qualifying each numbered paragraph, and supporting each

qualification or denial with a record citation. Id. 56(c).

Failure to follow this procedure will result in the disputed fact

being deemed admitted. Id. 56(f). We have previously lauded the

purpose behind local rules such as this one, which is to relieve

overworked district courts by placing the burden on litigants to

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identify the truly disputed material facts in the record. See

Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006) (stating

that such rules "have the capacity to dispel the smokescreen behind

which litigants with marginal or unwinnable cases often seek to

hide [and] greatly reduce the possibility that the district court

will fall victim to an ambush"). Moreover, we have repeatedly

indicated our willingness to enforce these rules and have warned

parties to "'ignore them at their peril.'" Ríos-Jiménez v.

Principi, 520 F.3d 31, 38 (1st Cir. 2008) (quoting Cabán-Hernández

v. Phillip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007)).

Despite these admonishments, the district court found

that the Estate had not complied with the requirements of Local

Rule 56. Accordingly, it struck from the record a number of the

Estate's factual averments. Because the Estate did not challenge

the district court's actions on appeal, we are limited to reviewing

the grant of summary judgment considering the facts only as they

were found by the district court.

This means that we may not consider, among other things,

the Estate's averments 1) that Wainwright was known as "Deputy

Death" and had been involved in the previous shooting of a mentally

ill person; 2) that Bennett was not a threat to his family, and his

family did not perceive him as one; 3) that Arlene expressly told

the 9-1-1 dispatcher that she did not want police assistance; 4)

that Bennett's family members did not want to leave the Bedard

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residence; 5) that Miclon was upset about the goings-on inside the

Bedard residence, vomited, and criticized the actions of the other

defendants to the family members gathered at Laurie's house; 6)

that when Bennett entered the Bedard residence's living room on one

of the two times prior to when he was shot, Baker pointed his

firearm at him and Bennett held up a roll of toilet paper in his

hand; 8) that on his third and final foray into the living room,

when Bennett pointed the shotgun at Baker, Baker responded by

yelling "Danny, drop the gun, drop the gun"; 9) that Wainwright

fired a full 13-shot magazine at Bennett before he reloaded; and

10) that Wainwright walked into the living room and fired a second

volley of shots straight into Bennett as he lay on the ground, in

the fashion of a "coup de grace."

We take all other facts as described in the "Background"

section, supra.

2. Equal Protection

As we previously mentioned, the Estate challenges the

district court's grant of summary judgment to defendants Turner,

Miclon, Davis, Herrick, and the County, on its equal protection

claim. It contends that this claim is sufficiently robust to

survive summary judgment because the Estate's pleadings establish

Bennett as a member of the "AMHI class for consent decree

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purposes"3 and a member of the "class of Maine citizens who [have]

guns in their homes and [have] a right not to be categorized as

dangerous merely because of this status." The Estate cites some

statistics comparing the number of mentally ill versus non-mentally

ill persons shot by Maine law enforcement between 1985 and 2000,

and it asserts that "the Oxford County Sheriffs[sic] Office and the

County and the individual defendants have a pattern and practice of

using force disproportionately against the mentally ill as a

strategy of suppressing them by the use of illegal arrest." We

read these allegations as asserting a claim of disparate treatment.

A requirement for stating a valid disparate treatment

claim under the Fourteenth Amendment is that the plaintiff make a

plausible showing that he or she was treated differently from

others similarly situated. Clark, 514 F.3d at 114; see also In re

Subpoena to Witzel, 531 F.3d 113, 118 (1st Cir. 2008) (stating that

the Equal Protection Clause guarantees that similarly situated

people will be treated alike). A similarly situated person is one

that is "roughly equivalent" to the plaintiff "'in all relevant

respects.'" Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortgage

Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001) (quoting Dartmouth Review

3
Members of the "AMHI class" are present and former patients of
the Augusta Mental Health Institute ("AMHI") who brought suit
against the state of Maine over the treatment and services they
received at AMHI. This lawsuit was settled by a consent decree
whereby class members are entitled to receive certain continuing
care after being discharged from AMHI. See Buchanan v. Maine, 469
F.3d 158, 162-63 (1st Cir. 2006).

-21-
v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989)). The Estate,

however, has failed to make this showing. Its pleadings, as

detailed above, make no effort to compare the treatment Bennett

received at the hands of the defendants with the treatment of any

person similarly situated to Bennett. Since the Estate has failed

to meet this threshold requirement, summary judgment was properly

granted on its equal protection claim.

3. Fourth Amendment

The Estate challenges the district court's grant of

summary judgment on its multiple Fourth Amendment claims. It

argues that both its members and Bennett had their Fourth Amendment

rights violated by the defendants. In response, the defendants

contend that no constitutional violation took place, and in the

alternative, that they are entitled to qualified immunity.

The Fourth Amendment prohibits unreasonable searches and

seizures. See U.S. Const. amend. IV; United States v. López, 989

F.2d 24, 26 (1st Cir. 1993). The Amendment applies equally to

seizures of persons and to seizures of property. Payton v. New

York, 445 U.S. 573, 585 (1980). A "seizure" of property occurs

when a state agent meaningfully interferes with a private citizen's

possessory interest in that property. Tower, 326 F.3d at 297

(citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). The

seizure of a person occurs when, by means of physical force or a

show of authority, an officer restrains the liberty of a person and

-22-
such person submits to the restriction feeling that he or she is

not free to leave. United States v. Holloway, 499 F.3d 114, 117

(1st Cir. 2007) (quoting United States v. Sealey, 30 F.3d 7, 9 (1st

Cir. 1994)). A seizure, however, does not amount to a

constitutional violation unless it is unreasonable. Reasonableness

is a highly situational determination, Wood v. Clemons, 89 F.3d

922, 928 (1st Cir. 1996), which generally depends "on a balance

between the public interest and the individual's right to personal

security free from arbitrary interference by law officers."

Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (quoting United

States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).

Qualified immunity is a doctrine that shields government

officials performing discretionary functions from liability for

civil damages "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)(citations omitted). Under Saucier v. Katz,

533 U.S. 194 (2001), this Circuit uses a three-part test when

evaluating a question of whether an officer in a § 1983 suit is

entitled to qualified immunity. Buchanan, 469 F.3d at 167; see

also Saucier, 533 U.S. at 205 ("If the officer's mistake as to what

the law requires is reasonable . . . the officer is entitled to the

immunity defense"). The court must ask:

[1] whether at some abstract level the
plaintiffs have asserted a violation of

-23-
 constitutional rights, [2] whether those
rights are clearly established, and [3]
whether a reasonable officer could have
concluded that his actions did not violate
plaintiffs constitutional rights.

Buchanan, 469 F.3d at 167 (quoting Tremblay v. McClellan, 350 F.3d

195, 199 (1st Cir. 2003)) (internal quotation marks omitted).

Generally, courts are encouraged to address the requisites of a

qualified immunity defense in "proper sequence," i.e., determining

first whether a constitutional violation has been asserted. See

Saucier, 533 U.S. at 200. The initial inquiry is whether a

constitutional right would have been violated on the facts alleged,

for if no right would have been violated, there is no need for

further inquiry into immunity. See id. at 201. Thus, under

Saucier, only if the first prong is satisfied should courts go on

to address the other two. See id. at 200.

The reason to favor addressing the first prong at the

outset is that "doing so assists in the development of the law on

what constitutes meritorious constitutional claims." Tremblay, 350

F.3d at 199 (citations omitted). However, we have noted that

"Saucier itself suggested that the law elaboration function of the

first prong would be well served only in 'appropriate cases.'"

Buchanan, 469 F.3d at 168 (quoting Saucier, 533 U.S. at 207). This

law elaboration purpose is not furthered "where [a] Fourth

Amendment inquiry involves a reasonableness question which is

highly idiosyncratic and heavily dependant on the facts." Id. In

-24-
such cases, we may avoid definitive determinations of the

substantive constitutional claims and turn directly to the second

and third prongs of the Saucier test. Id.; see, e.g., Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (expressing no view on correctness

of Court of Appeals decision on constitutional question, but

reaching remaining prongs of immunity analysis); Riverdale Mills

Corp. v. Pimpare, 392 F.3d 55, 62 (1st Cir. 2004)(emphasizing that

"the rule stating that the first prong must be performed before the

rest of the qualified immunity analysis is not completely

inflexible"). This approach is especially prudent when it is clear

that the officers are entitled to immunity based on the other

prongs. See Buchanan, 469 F.3d at 168; Tremblay, 350 F.3d at 200.

Because we find this approach prudent on the facts before us, our

analysis of the Estate's various Fourth Amendment claims will

generally proceed directly to the third prong.

"The third prong of the qualified immunity analysis

recognizes that 'law enforcement officials will in some cases

reasonably but mistakenly conclude that [their conduct] is . . .

lawful'; 'in such cases those officials –- like other officials who

act in ways they reasonably believe to be lawful –- should not be

held personally liable.'" Buchanan, 469 F.3d at 169 (quoting

Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Thus, "police

officers are entitled to qualified immunity if reasonably well-

trained officers confronted with similar circumstances could

-25-
reasonably believe their actions were lawful under clearly

established law." Napier v. Windham, 187 F.3d 177, 183 (1st Cir.

1999); see also Saucier, 533 F.3d at 205 ("If the officer's mistake

as to what the law requires is reasonable . . . the officer is

entitled to the immunity defense"). Applying this standard on

review of summary judgment, our ultimate inquiry becomes whether a

reasonable factfinder could conclude that the defendants' conduct

was "so deficient that no reasonable officer could have made the

same choices under the circumstances." Napier, 187 F.3d at 184.

We apply this analysis to each of the Estate's Fourth

Amendment claims.

a. Initial Entry

The Estate argues that Wainwright and Turner's initial

entry into the Bedard residence constituted a Fourth Amendment

violation because, at the time of entry, the officers had not been

invited into the house and did not have a warrant. The defendants

dispute that the entry amounted to a Fourth Amendment violation, as

it was justified by exigent circumstances and probable cause, but

that in any event, they are entitled to qualified immunity because

they reasonably believed that their entry into the house was

lawful.

A warrantless entry into a home without consent is

considered a presumptively unreasonable seizure. McCabe v. Life-

Line Ambulance Serv., Inc., 77 F.3d 540, 544 (1st Cir. 1996).

-26-
However, such entry may not be unreasonable where the government

can demonstrate, in addition to probable cause, the existence of

exigent circumstances. The exigent circumstances exception

attaches where police officers reasonably believe that there is a

compelling need for immediate action that "will not brook the delay

of obtaining a warrant." Samboy, 433 F.3d at 158 (quoting Fletcher

v. Town of Clinton, 196 F.3d 41, 49 (1st Cir. 1999) (internal

quotation mark omitted)). Such circumstances exist, for example,

where law enforcement officers enter a home without a warrant under

a reasonable belief that doing so is necessary to render emergency

assistance to a person inside. See Mincey v. Arizona, 437 U.S.

385, 392 (1978). An "imminent theat to the life or safety of

members of the public, the police officers, or a person located

within the residence," may qualify as an exigent circumstance that

renders a warrantless entry reasonable. Buchanan, 469 F.3d at 168

(quoting McCabe, 77 F.3d at 545); see also United States v.

Martins, 413 F.3d 139, 146-47 (1st Cir. 2005). Maine's protective

custody statute, Me. Rev. Stat. Ann. Tit. 34-B, § 3862(1),

authorizes law enforcement to seize a person whom they reasonably

believe to be mentally ill if that person presents a threat to

himself or others.

Based on the objective facts known to them at the time,

it is clear that Wainwright and Turner had reasonable grounds to

believe that Bennett was a mentally ill person who "presented a

-27-
threat of imminent and substantial physical harm to himself or

others, including the [officers] themselves." Buchanan, 469 F.3d

at 169; see also Tremblay, 350 F.3d at 200-01 (finding qualified

immunity on third prong for officer who took youth into protective

custody when it was reasonable to suspect youth's person or welfare

was endangered). Before arriving on the scene, Wainwright and

Turner were informed by the 911 dispatcher that Bennett had a

mental illness, was off his medications, had savagely beat a stray

dog, and had verbally threatened his mother. Wainwright and

Bennett were also told that Bennett was inside a residence that

contained firearms. Particularly in light of Maine's protective

custody statute, a reasonable officer confronted with similar

circumstances could have believed there was sufficient threat of

dangerous behavior to justify entering the house and taking Bennett

into protective custody. Cf. Zeigler v. Aukerman, 512 F.3d 777,

783 (6th Cir. 2008) (finding that "probable cause in the mental

health seizure context requires only a probability or substantial

chance of dangerous behavior, not an actual showing of such

behavior.")(internal quotation omitted)). Moreover, a reasonable

officer under the circumstances could have reasonably believed that

"waiting was not a good idea," Buchanan, 469 F.3d at 170, and that

entering the house without first obtaining a warrant or express

consent was necessary to prevent injury to Bennett himself, and to

the family members present inside. Ultimately, "[t]hese

-28-
circumstances . . . disclose substantial grounds for the officer[s]

to have concluded [they] had legitimate justification under the law

for acting as [they] did." Saucier, 533 U.S. at 208; see also

Buchanan, 469 F.3d at 170 (finding police officers who entered home

of mentally ill man in Maine without warrant or consent were

entitled to qualified immunity because officers could have

reasonably believed they had authority under state law). Thus,

even if the officers were mistaken in their belief –- that is, even

if their entry was unreasonable as a matter of substantive Fourth

Amendment law, they are nevertheless entitled to immunity under the

third prong of the qualified immunity inquiry. Buchanan 469 F.3d

at 170; see also Hegarty v. Somerset County, 53 F.3d 1367, 1374-79

(1st Cir. 1995). Summary judgment was therefore properly granted

on this claim.

b. Re-Entry

The Estate rephrases its previous claim by arguing that

the defendants violated its Fourth Amendment rights when

Wainwright, Turner, and Baker re-entered the Bedard residence after

the family members had been evacuated. They allegedly did so, for

a second time, without permission or a warrant. However, at the

time of re-entry, the defendants still believed that Bennett was a

mentally unstable individual who was inside a house containing

firearms. Based on undisputed facts known to them, the officers

could have reasonably believed that their prompt re-entry was

-29-
necessary to respond to the imminent threat Bennett continued to

pose to the officers and to himself, and therefore, that such re-

entry did not violate the Fourth Amendment. Summary judgment on

qualified immunity grounds was therefore proper.

c. Temporarily Seizing the Residence

The Estate further argues that, in ordering the family

members to evacuate and then re-entering the house and remaining

there without their consent, the defendants temporarily "seized"

the Estate's property, the Bedard residence, in violation of the

Fourth Amendment. The threshold question here is whether there was

a seizure at all for Fourth Amendment purposes. As we explained in

discussing the Estate's Fifth Amendment Takings claim, Estate

member Laurie does not allege to have a had a possessory interest

in the Bedard residence at the time of this incident. See Tower,

326 F.3d at 297. Accordingly, she has failed to assert a Fourth

Amendment violation and her claim fails at the outset. Id.

With regard to Arlene and Isabel's claims, we agree with

the Estate that the defendants carried out a seizure of the Bedard

residence because the officers' actions meaningfully interfered

with Arlene and Isabel's possessory interests in that property.

Id. (citing Jacobsen, 466 U.S. at 113 (1984)). "In circumstances

such as this, we balance the privacy-related and law enforcement

related concerns to determine if the intrusion was reasonable."

Id. (citing Illinois v. McArthur, 531 U.S. 326, 331 (2001)).

-30-
Arlene's and Isabel's right to freely possess their home is

certainly a weighty interest. Nevertheless, a reasonable officer

could have concluded that intrusion onto that interest, by

temporarily seizing the Bedard residence, was outweighed by the

legitimate government interest in protecting human life and

avoiding injuries to the family while performing a potentially

dangerous psychiatric transfer. See id. at 297 (finding no Fourth

Amendment violation where government officials remained in home in

order to ensure the safety of the children who lived there after

their father's arrest). Even if the officers were mistaken as a

matter of substantive law as to the legality of the seizure, "a

jury could not find that [the defendants'] conduct was so deficient

that no reasonable officer could have made the same choice."

Napier, 187 F.3d at 183 (quoting Roy v. Inhabitants of the City of

Lewiston, 42 F.3d 691, 695 (1st Cir. 1994))(internal quotation

marks omitted). Therefore, qualified immunity applies and summary

judgment was proper.

d. Establishment of a Perimeter

The Estate further claims that the defendants "seized"

Bennett in violation of his Fourth Amendment rights by establishing

a perimeter around the Bedard residence. "A 'seizure' triggering

the Fourth Amendment's protections occurs only when government

actors have, 'by means of physical force or show of authority,

. . . in some way restrained the liberty of a citizen.'" Graham,

-31-
490 U.S. at 395 n.10 (omission in original)(quoting Terry v. Ohio,

392 U.S. 1, 19 n.16 (1968)); see also Holloway, 499 F.3d at 117

(describing a seizure as occurring when an officer restrains an

individual's liberty and the individual submits to the restriction

because he feels he is not free to leave). In the case before us,

no showing has been made on the summary judgment record that

Bennett submitted to the restriction imposed by the police

perimeter, or that he felt he was not free to leave. Indeed, the

Estate neglects to assert that Bennett had seen the police

perimeter from his position in the back of the house, or that he

even knew that the Bedard residence had been cordoned off. Given

the Estate's failure to establish Bennett's knowledge of the

perimeter, no reasonable factfinder could find that a person in

Bennett's circumstances would have thought that the perimeter

restricted his liberty to leave the Bedard residence. See United

States v. Espinoza, 490 F.3d 41, 49 (1st Cir. 2007). As the

existence of the perimeter cannot reasonably be characterized as a

Fourth Amendment "seizure," the plaintiffs have failed to establish

a constitutional violation. Thus, we "need not reach the other two

prongs of the qualified immunity analysis" to conclude that there

is no genuine issue as to whether the officers are entitled to

qualified immunity. See Riverdale Mills Corp., 392 F.3d at 65

(finding qualified immunity on the first prong, not on the question

of Fourth Amendment reasonableness, but on the antecedent question

-32-
of law as to whether there had been a "search"). Summary judgment

for defendants was therefore proper on this claim.

e. Calling in the SWAT Team

The Estate argues that involving the SWAT team during the

standoff at the Bedard residence caused Bennett to be unlawfully

seized in violation of the Fourth Amendment. As with its previous

claim, however, the Estate fails to plead that Bennett was aware

that the SWAT team was assembled outside the Bedard residence.

Indeed, according to the district court's accepted factual account,

Bennett's only interaction with the SWAT team occurred after he had

been fatally shot. Thus, based on the Estate's pleadings, no

reasonable factfinder could have concluded that a person in

Bennett's circumstances would have thought that he was not free to

leave the Bedard residence due to the SWAT team's presence. See

Espinoza, 490 F.3d at 49. As the facts "[t]aken in the light most

favorable to the party asserting the injury" do not show that

Bennett was "seized" for purposes of the Fourth Amendment,

plaintiffs have failed to show that "the officer's conduct violated

a constitutional right." Saucier, 533 U.S. at 201 (discussing

first prong of qualified immunity inquiry). We thus need not get

past the first prong to conclude that defendants are entitled to

qualified immunity, and therefore, summary judgment was proper on

this claim as well.

-33-
 f. Removing Family Members from Residence

The Estate argues that the defendants accomplished an

unreasonable seizure in violation of the Fourth Amendment when

defendants ordered them out of the Bedard residence.4

Specifically, plaintiffs argue that they were seized when they were

ordered to evacuate the Bedard residence because they submitted

when the defendants, through a show of authority, placed a

restraint on their freedom. In response, defendants assert that

the request to evacuate was not a seizure, but that in any event,

they are entitled to qualified immunity.

As a threshold matter, we note that Estate member Laurie

does not allege to have been inside the Bedard residence at any

point during the day at issue. As a result, Laurie could not have

been ordered to leave the Bedard residence by the defendants, and

her Fourth Amendment claim premised on these actions fails. With

regard to Isabel's and Arlene's claims, an order to evacuate

through a show of authority may be regarded as a "seizure." See

Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 259

(1st Cir. 2003) (holding that the Coast Guard's forcible evacuation

of a sinking sea vessel constituted a seizure of the persons

4
The Estate alleges that its members did not voluntarily leave
the Bedard residence. Though we may not consider this factual
averment due to the Estate's non-compliance with Local Rule 56, our
analysis is unaltered because it is apparent from the record that
the family members left the Bedard residence at Wainwright and
Turner's orders.

-34-
therein). It is irrelevant that Arlene and Isabel were free to

leave the Bedard residence because, due to the coercive effect of

Wainwright and Turner's show of authority, they were not free to

stay and thus, their liberty interest was impinged upon.

However, a seizure does not violate the Fourth Amendment

unless it is unreasonable under the circumstances. Skinner v. Ry.

Labor Executives' Ass'n, 489 U.S. 602, 619 (1989); Ahern v.

O'Donnell, 109 F.3d 809, 816 (1st Cir. 1997). To determine the

reasonableness of the seizure we must balance "its intrusion" on

Arlene and Isabel's substantial liberty interests in remaining in

their home, against the defendants "legitimate governmental

interests" in minimizing the risk of harm to Bennett, the family

members, and themselves, while carrying out their duty of

transporting a potentially dangerous mentally ill individual for

psychiatric care. Skinner, 489 U.S. at 619. In any event, the

officers could have reasonably concluded based on the objective

facts known to them at the time that the temporary and minimal

restraint placed on Arlene and Isabel (who were free to go anywhere

but past the police perimeter and into the Bedard residence), was

outweighed by the officers' legitimate interest in minimizing the

number of persons present in the zone of danger, while conducting

a potentially perilous intervention inside the home. Even if the

officers were mistaken in their judgment –- that is, even if their

seizure of the Bedard residence was unreasonable as a matter of

-35-
substantive Fourth Amendment law -- they are nevertheless entitled

to immunity under the third prong of the qualified immunity

inquiry. Therefore, summary judgment was properly granted on this

claim.

g. Denying Bennett Access to the Restroom

The Estate argues that the defendants violated Bennett's

Fourth Amendment rights when they blocked his access to the

restroom in the Bedard residence. The Estate infers that Bennett

intended to use the restroom because, during one of his initial

forays into the living room, the officers in the kitchen pointed

their firearms at him and Bennett responded by raising his hands,

one of which was holding a roll of toilet paper.

However, as we explained at the beginning of this summary

judgment section, the Estate had several of its factual averments

struck from the record because the district court found that it

had not complied with the requirements of Local Rule 56. Among the

averments struck was one stating that when Bennett entered the

Bedard residence's living room at a time prior to when he was shot,

he did so carrying a roll of toilet paper in his hand. In keeping

with our established practice, we will not consider the struck

factual averment. See Ríos-Jiménez, 520 F.3d at 38. The factual

basis upon which this claim rests having been struck from the

record, any reasonable factfinder would be compelled to find that

-36-
the Estate has failed to show a constitutional violation. Summary

judgment was therefore proper on this claim.

h. Pointing Firearms at Bennett

The Estate contends that the defendants violated

Bennett's Fourth Amendment rights by pointing their firearms at

Bennett when he twice ventured into the Bedard residence's living

room prior to being shot. It asserts that such pointing of a

weapon, which they characterize as "threatening," constitutes a

seizure of Bennett's person through the use of excessive force. In

response, defendants assert that deadly force was a reasonable

response to the threat of deadly force they faced, and that in any

event, they are entitled to qualified immunity.

A violation of the Fourth Amendment premised on excessive

force is established if an officer exerts force against a plaintiff

that is unreasonable under the circumstances. Jennings v. Jones,

499 F.3d 2, 11 (1st Cir. 2007) (citing Graham, 490 U.S. at 397).

Reasonableness in this context is an objective inquiry based, not

on the officer's underlying motivation, but on facts and

circumstances that "must be judged from the perspective of a

reasonable officer on the scene." Graham, 490 U.S. at 396.

The Estate argues that the pointing of firearms at

Bennett was a restraint on Bennett's liberty to which Bennett

complied by moving away from the kitchen where the officers with

guns drawn were located, and towards the back of the Bedard

-37-
residence. Assuming that the pointing of firearms at Bennett

amounted to a seizure of his person, see U.S. v. Mendenhall, 446

U.S. 544, 554 (1980) (listing "the display of a weapon by an

officer" as an example of a circumstance that may indicate a

seizure by means of a "show of authority"), we need not decide

whether such seizure was carried out with a reasonable amount of

force for purposes of the Fourth Amendment because we find that the

officers are entitled to qualified immunity under the third prong

of the Saucier analysis. See Saucier, 533 U.S. at 206 (holding

that inquiry as to whether officers are entitled to qualified

immunity for use of excessive force is distinct from inquiry on the

merits of the excessive force claim).

Based on "those objective facts known to (or discernible

by) the officers at the time of the event," a reasonable officer

could decide that pointing a firearm at Bennett would not amount to

excessive force under the circumstances. Buchanan, 469 F.3d at 169

(citing U.S. v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995)). Prior

to the pointing of the firearm, Officers Wainwright, Baker, and

Turner had been ordered into the Bedard residence to maintain a

defensive position while the SWAT team arrived and assembled

outside. All of the defendants understood that Bennett had to be

taken into protective custody and transferred to a psychiatric

facility. They knew Bennett suffered from a mental illness, was

acting erratically, had been physically violent against a stray

-38-
dog, and had threatened his mother with the same treatment. Most

alarmingly, Bennett was known to be inside a house containing

firearms where he largely remained outside the officers' line of

vision, but would sporadically reappear. Given these perilous

circumstances, a reasonable officer on the scene would have thought

it wise to have a firearm ready, and to hold such firearm in a

shooting position if Bennett's sudden appearance caused him to feel

threatened. Such conduct cannot be regarded as inconsistent with

the officers' need to protect themselves and others, while carrying

out the extraction of a potentially dangerous individual from the

inside of a home. See Flowers v. Fiore, 359 F.3d 24, 33-34 (1st

Cir. 2004) (finding that police officers did not use excessive

force in displaying their firearms, including a shotgun, during a

traffic stop, where the detained motorist fit the description of a

person known to be armed and the officers perceived a threat to

their safety). A reasonable officer could have believed that

pointing a firearm at a mentally unstable individual with access to

weapons did not amount to excessive force under the circumstances.

Even if the officers were mistaken in their judgment, –- that is,

even if the display of firearms was unreasonable as a matter of

substantive Fourth Amendment law, they are nevertheless entitled to

immunity under the third prong of the qualified immunity inquiry.

-39-
 i. Shooting Bennett

In its final Fourth Amendment claim, the Estate argues

that Bennett's shooting was a constitutional violation because

excessive force was used. In § 1983 actions alleging the use of

excessive force, the qualified immunity test is based on an

objective standard: "'whether an objectively reasonable officer

would have believed the conduct was unreasonable.'" Asociación de

Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 61 (1st Cir.

2008)(quoting Jennings, 499 F.3d at 19). "[Q]ualified immunity

affords protection to officers who reasonably, yet mistakenly,

employ excessive force in violation of the Fourth Amendment."

Jennings, 499 F.3d at 19; see also Saucier, 533 U.S. at 206

(stating that "immunity operates . . . to protect officers from the

sometimes hazy border between excessive and acceptable force")

(internal quotations omitted). As we have stated, summary judgment

is proper if "'a jury could not find that [the defendants' conduct]

was so deficient that no reasonable officer could have made the

same choice.'" Napier, 187 F.3d at 183 (quoting Roy, 42 F.3d at

694) (alteration in original).

Our analysis of this issue is based on the district

court's straightforward factual account of the tragic shooting.5

5
In stating its claim on appeal the Estate relied on its own
version of the events that transpired inside the Bedard residence,
including averments that officer Wainwright fired a full 13-shot
ammunition magazine at Bennett, reloaded, walked into the living
room, and then fired several shots straight into Bennett's body in

-40-
In this version, Bennett, suddenly and without warning, entered the

living room of the Bedard residence armed with a shotgun which he

aimed at Baker. Baker yelled to Bennett, "Danny, drop the

shotgun," but Bennett refused to do so, and instead fired the

shotgun. Baker and Wainwright both believed that Bennett was

firing at them. After Bennett had fired the shotgun, Wainwright

believed that Bennett was reloading his gun, and in response, both

Wainwright and Baker responded with their own gunfire, Wainwright

pausing once to reload. When the shooting was over, Bennett was

given immediate first aid before being pronounced dead at a nearby

hospital. These facts are essentially uncontested.6

what the Estate characterizes as a "coup de grace." As we have
explained, the court below found that the Estate had failed to
comply with Local Rule 56 and, as a result, it struck a number of
the Estate's factual averments from the record. See D. Me. R.
56(f). Those averments include the Estate's "coup de grace"
version of the events surrounding Bennett's fatal shooting. As
previously indicated, since the Estate does not challenge the
district court's evidentiary strike we will not consider these
factual averments. See Ríos-Jiménez, 520 F.3d at 38.
6
The Estate also makes the argument that summary judgment was
precluded by the existence of several evidentiary inconsistencies
which call into question the defendants' version of the events,
thus creating issues of fact that must be resolved by a jury. See
Fed. R. Civ. P. 56(c) (stating that summary judgment shall be
granted if the record shows that "there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a
matter of law"). These alleged inconsistencies, -- the presence of
blood in the Bedard residence's kitchen; a bullet hole in the
bathroom wall; the location where several shotgun shells were
found; the absence of a large amount of blood behind the sofa where
Bennett's body allegedly fell; and an alleged discrepancy in the
timing of the fatal shooting -- are marshaled by the Estate to
advance its theory that Bennett's death did not occur as the
defendants described it and was instead covered up. No proof of

-41-
 While the result is tragic, we cannot conclude that the

officers' actions were so deficient that no reasonable officer in

their position would have made the same choices under these

circumstances. In the Fourth Amendment context, the use of deadly

force is not excessive if an objectively reasonable officer in the

same circumstances would have believed that an individual "posed a

'threat of serious physical harm either to the officer or others.'"

Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st

Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 12 (1985)).

Moreover, "[w]e must remember that the reasonableness of an

officer's use of force must be judged from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision

of hindsight." Napier, 187 F.3d at 188; see also Anderson v.

Russell, 247 F.3d 125, 131 (4th Cir. 2001) (holding that an officer

did not employ excessive force in shooting a suspect who turned out

to be unarmed because, at the time of the shooting, the officer had

a reasonable belief that the suspect posed a threat and was armed).

In this case, reasonable officers in Wainwright and Baker's

position, faced with an armed mentally ill man, who had already

shot at them once, could reasonably believe that they were faced

these evidentiary inconsistencies appears on the record. Further,
the district court does not include any of the enumerated
inconsistencies in the factual account that emerged from its Local
Rule 56 analysis. Thus, we are precluded from considering these
inconsistencies and reject this argument outright. See id.

-42-
with imminent and grave physical harm that justified resort to

deadly force.

The fact that officers Wainwright and Baker fired

multiple shots at Bennett, and might even have reloaded their

weapons, does not change our assessment. In Berube we found that

the actions of an officer who continued to fire at a suspect after

he fell to the ground could not be found "unreasonable" because the

officer failed to "perfectly calibrate the amount of force required

to protect herself." Berube v. Conley, 506 F.3d 79, 85 (1st Cir.

2007). Rather, we found that the officer made "a split-second

judgment in responding to an imminent threat," and while we "might

regret [the officer's] failure to stop shooting as soon as Berube

went down, immunity encompasses 'mistaken judgments'." Id.

(quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)). Like the

officer in Berube, Wainwright, in the context of this tense and

dangerous situation, could have reasonably believed that Bennett

posed a continuing threat, and that his own safety and the safety

of the other officers required him to keep firing.

Neither are we persuaded by the Estate's argument that

Bennett was effectively unarmed at the time of the fatal shooting

because he had discharged the only round chambered in his single-

shot breach-loader shotgun, and had been unable to reload. Whether

or not Bennett was actually reloading, or capable of doing so, is

not relevant if the officer's belief that he was doing so was

-43-
reasonable. Though Estate member Arlene does allege to have told

Captain Miclon that the only functional firearm in the Bedard

residence was a single-shot breach-loader, the Estate makes no

allegation that the officers in the kitchen -- Wainwright, Baker,

and Turner -- were privy to this information. Moreover, even if

the officers had been so notified, it is unreasonable to expect

that having suddenly come under fire during a tense protective

custody situation, officers Wainwright and Baker would have taken

the time to get a good look at the type of gun Bennett was using.

Nor were the officers required to do so. See Graham, 490 U.S. at

396-97 ("The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-second

judgments -- in circumstances that are tense, uncertain, and

rapidly evolving -- about the amount of force that is necessary in

a particular situation"). An objectively reasonable officer in

their situation could have felt at risk of serious bodily harm and

believed deadly force to be necessary and lawful, and that is

sufficient to legitimize the officers' use of deadly force. See

Berube, 506 F.3d at 83-86; Napier, 187 F.3d at 187. Since a

reasonable factfinder must conclude that Bennett's shooting, while

unfortunate, was not the result of plain incompetence or knowing

violation of law on the part of the officers, the officers are

entitled to qualified immunity under the third prong of the Saucier

analysis. See Asociación de Periodistas de Puerto Rico, 529 F.3d

-44-
at 61 (quoting Malley, 475 U.S. at 341), for proposition that the

scope of qualified immunity protection is "intended to include 'all

but the plainly incompetent or those who knowingly violate the

law'").

Summary judgment was thus proper on this and every one of

the Estate's Fourth Amendment claims.

4. Supervisory Liability

Leaving behind the Estate's Fourth Amendment claims, we

now address the Estate's challenge to the district court's grant of

summary judgment on its supervisory liability claims against

defendants Herrick and Oxford County. The Estate alleges that

Herrick and the County are subject to supervisory liability under

§ 1983 because they deliberately or consciously failed to

adequately train their subordinates, in deliberate indifference to

Bennett's constitutional rights. The Estate further asserts that

Herrick and the County had a pattern and practice of applying

excessive force in the context of mental health extractions.

This Circuit recently reiterated in the case of Pineda v.

Toomey that a supervisory official may be held liable under § 1983

as a secondary violator for the behavior of his subordinates 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 that behavior in
the sense that it could be characterized as
supervisory encouragement, condonation or

-45-
 acquiescence or gross negligence amounting to
deliberate indifference.

533 F.3d 50, 54 (1st Cir. 2008) (quoting Lipsett v. Univ. of P.R.,

864 F.2d 881, 902 (1st Cir. 1988)); see also Camilo-Robles v.

Zapata, 175 F.3d 41, 44 (1st Cir. 1999) (holding that where

plaintiff brings § 1983 claim against a defendant-supervisor,

liability attaches if the responsible official "supervises, trains,

or hires a subordinate with deliberate indifference toward the

possibility that deficient performance of the task eventually may

contribute to a civil rights deprivation."). Moreover, "[t]o

succeed on a supervisory liability claim, a plaintiff not only must

show deliberate indifference or its equivalent, but also must

affirmatively connect the supervisor's conduct to the subordinate's

violative act or omission." Maldonado-Denis v. Castillo-Rodríguez,

23 F.3d 576, 582 (1st Cir. 1994).

With respect to the County, it is worth noting as a

threshold matter that "it is not impossible for a municipality to

be held liable for the actions of lower-level officers who are

themselves entitled to qualified immunity." Joyce v. Town of

Tewksbury, 112 F.3d 19, 23 (1st Cir. 1997) (en banc) (citing Walker

v. Waltham Hous. Auth., 44 F.3d 1042, 1047 (1st Cir. 1995)).

However, like supervisory liability, municipal liability is not

vicarious. Municipalities can be held liable only if municipal

employees commit unconstitutional acts and those actions are shown

to have been caused by a "policy or custom" of the government.

-46-
Martínez-Vélez v. Rey-Hernández, 506 F.3d 32, 41 (1st Cir. 2007)

(citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).

Such custom "must be so well settled and widespread that the

policymaking officials of the municipality can be said to have

either actual or constructive knowledge of it yet did nothing to

end the practice." Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st

Cir. 1989). With respect to a failure to train claim, only if the

"municipality's failure to train its employees in a relevant

respect evidences a 'deliberate indifference' to the rights of its

inhabitants can such a shortcoming be properly thought of as a city

'policy or custom' that is actionable under § 1983." City of

Canton v. Harris, 489 U.S. 378, 389 (1989).

The establishment of § 1983 liability against either

Herrick or the County would ultimately depend on plaintiff proving

the commission of an underlying constitutional violation by the

subordinate officers. See Pineda, 533 F.3d at 54. Because we hold

that the subordinate officers are entitled to qualified immunity

under the third prong of the Saucier analysis, we did not reach, in

our foregoing analysis, the merits of whether actions taken during

the attempt to place Bennett in protective custody amounted to a

constitutional violation. We need not reach this question here

either. Even if an underlying substantive constitutional violation

by subordinate officers were stated by plaintiffs, we nevertheless

agree with the district court that plaintiffs offer insufficient

-47-
evidence to allow a reasonable factfinder to find a policy, custom,

practice or any deliberate indifference on the part of either

Herrick or the County that bears the requisite causal relationship

to the alleged constitutional deprivation to establish liability

under a supervisory theory. See Pineda, 533 F.3d at 53 (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246 (1986))(stating

that in reviewing district court's grant of summary judgment, we

are not required to credit "conclusory allegations, improbable

inferences, or unsupported speculation" by the non-moving party).

The estate can point to no proper record evidence that suggests

deficient training or supervision. This is particularly true given

that the few facts proffered by plaintiffs in support of these

claims were properly struck from the record.7 Summary judgment was

therefore proper on this claim.

5. Section 1983 Conspiracy

The Estate challenge the district court's grant of

summary judgment on its § 1983 conspiracy claim. A civil rights

conspiracy as commonly defined is "a combination of two or more

7
As explained in part II.C.1.a, supra, the court below struck a
number of the Estate's factual averments as not compliant with
Local Rule 56. See D. Me. R. 56(f). Those averments include the
Estate's assertion that Wainwright was known as "Deputy Death" and
had been involved in the previous shooting of a mentally ill
person. However, because "isolated instances of unconstitutional
activity ordinarily are insufficient to establish a supervisor's
policy or custom, or otherwise to show deliberate indifference,"
Maldonado-Denis, 23 F.3d at 582, relying on the plaintiff's version
of the facts would not alter our holding.

-48-
persons acting in concert to commit an unlawful act, or to commit

a lawful act by unlawful means, the principal element of which is

an agreement between the parties to inflict a wrong against or

injury upon another, and an overt act that results in damages."

Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988)(quoting Hampton

v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979)) (internal

quotations omitted). While plaintiffs are correct that "conspiracy

is a matter of inference," summary judgment may still be

appropriate on a conspiracy claim where the nonmoving party rests

merely on conclusory allegations. Here plaintiffs have presented

no evidence, either direct or circumstantial of an agreement among

defendants from which a reasonable jury could have inferred a

conspiracy among them to inflict harm upon the plaintiffs. Earle,

850 F.2d at 845; see also Slotnick v. Staviskey, 560 F.2d 31, 33

(1st Cir. 1977)(holding that complaint alleging a conspiracy to

deprive plaintiff of his civil rights cannot survive motion to

dismiss based on conclusory allegations of conspiracy which are not

supported by references to material facts). Summary judgment was

thus proper on this claim.

6. State Law Claim

Leaving behind the Estate's federal causes of action, we

now review its challenge to the district court's grant of summary

judgment on its state law claim pursuant to our pendent

jurisdiction. See 28 U.S.C. § 1367(a). The Estate asserts that

-49-
the defendants acted in contravention of the Maine Civil Rights

Act, Me. Rev. Stat. Ann. tit. 5, § 4682(1-A), by damaging or

threatening to damage the Estate's property, as well as by their

interference -- through the use of physical force -- with Bennett's

rights under Maine state and federal law.8 Nonetheless, because

the protections provided by the Maine Civil Rights Act, including

immunities, are coextensive with those afforded by 42 U.S.C.

§ 1983, the dismissal of all of the Estate's § 1983 claims mandates

that this claim receive similar treatment. Berube, 506 F.3d at 85-

86 (citing Dimmitt v. Ockenfels, 220 F.R.D. 116, 123 (D. Me.

2004)). A reasonable factfinder would thus conclude that summary

judgment was proper.

8
Me. Rev. Stat. Ann. tit. 5, § 4682(1-A) reads:

Whenever any person, whether or not acting
under color of law, intentionally interferes
or attempts to intentionally interfere by
physical force or violence against a person,
damage or destruction of property or trespass
on property or by the threat of physical force
or violence against a person, damage or
destruction of property or trespass on
property with the exercise or enjoyment by any
other person of rights secured by the United
States Constitution or the laws of the United
States or of rights secured by the
Constitution of Maine or laws of the State
. . . the person whose exercise or enjoyment
of these rights has been interfered with, or
attempted to be interfered with, may institute
and prosecute in that person's own name and on
that person's own behalf a civil action for
legal or equitable relief.

-50-
 III. Conclusion

For all of the foregoing reasons, the district court's

judgment is affirmed. Costs to be borne by the parties

respectively.

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