          United States Court of Appeals
                     For the First Circuit


No. 17-1451

                          JASON BEGIN,

                      Plaintiff, Appellee,

                               v.

                          LAURA DROUIN,

                      Defendant, Appellant,

                     CITY OF AUGUSTA, MAINE,

                           Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. John C. Nivison, U.S. Magistrate Judge]


                             Before

                 Torruella, Kayatta, and Barron,
                         Circuit Judges.


     Edward R. Benjamin, Jr., with whom Kasia S. Park and Drummond
Woodsum were on brief, for appellant.
     Bradford A. Pattershall, with whom Law Office of Bradford A.
Pattershall, LLC, Matthew D. Bowe, and Law Office of Matthew D.
Bowe were on brief, for appellee.


                        November 16, 2018
           KAYATTA, Circuit Judge.        Officer Laura Drouin of the

Augusta, Maine police department shot plaintiff Jason Begin as

Begin was cutting himself with a knife in the waiting area of the

Riverview Psychiatric Center's local office.           Begin later sued

Drouin under 42 U.S.C. § 1983, alleging a deprivation of his

constitutional rights.    After discovery, Drouin moved for summary

judgment, arguing that she was immune to Begin's damage claims

because a reasonable officer in her position would have thought

that Begin posed an immediate threat to Drouin or to the Riverview

employees who had been meeting with Begin just before he pulled

out his knife.   The district court denied her motion, and Drouin

filed this interlocutory appeal.        For the following reasons, we

dismiss the appeal to the extent it challenges the district court's

assessment of the factual record under Fed. R. Civ. P. 56, and we

otherwise affirm the denial of summary judgment.

                                   I.

           An order denying a motion for summary judgment, not being

a final judgment, usually provides no occasion for an appeal.        See

28 U.S.C. § 1291.   An exception applies when such an order rejects

a qualified immunity defense tendered in response to a claim of

official   malfeasance   in   violation    of   section 1983.   In   that

instance, the state official may secure interlocutory review of a

district court's conclusion that the official must stand trial.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).             Such review,


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however, has limits. We cannot consider challenges to the district

court's determination of "which facts a party may, or may not, be

able to prove at trial."          Johnson v. Jones, 515 U.S. 304, 313

(1995); McKenney v. Mangino, 873 F.3d 75, 81 (1st Cir. 2017).               To

the contrary, we "simply take, as given, the facts that the

district court assumed when it denied summary judgment."            Johnson,

515 U.S. at 319.     And to the extent the district court fails to

expressly articulate a relevant finding of fact, we review the

record "to determine what facts the district court, in the light

most favorable to the nonmoving party, likely assumed."             Id.

           We   therefore   begin    consideration    of   this    appeal   by

describing the events not as they necessarily occurred, but rather

as the district court determined that jurors might reasonably find

them to have occurred, or as otherwise viewed most favorably to

Begin.   Id. at 311, 319.

                                     A.

           Between   2004   and     2014,   Begin   resided   at   a   locked

psychiatric hospital, Riverview Psychiatric Center, to which he

had been committed following an acquittal on a felony theft charge

by reason of insanity.      In early 2014, he obtained a supervised

release permitting him to live in a group residential program

setting. One year later, questions arose concerning his compliance

with the terms of his community placement.          These questions led to




                                      - 3 -
a meeting between Begin and three members of Riverview's outpatient

treatment team at their office in Augusta, Maine.

            Begin's   responses     and    behavior    during      that   meeting

convinced the Riverview team that he needed to be recommitted.

Anticipating that Begin would be upset by this decision, Gregory

Smith, a member of the team, called the Augusta Police Department

to request that an officer be present when they informed Begin and

then to transport him to Riverview's commitment facility.                   When

Drouin arrived at the office, Smith told her that Begin might

become uncooperative upon learning that he was being recommitted.

Smith also said that Begin had some history of violence, but

provided no further details.             Begin is a large man, weighing

roughly 265 pounds.        Drouin was armed with her service gun, a

Taser, an expandable baton, and pepper spray.

            Meanwhile, Begin was in the office's waiting area just

beginning   to   receive   the    news    that   he   would   be    returned   to

Riverview that afternoon.        Drouin waited out of sight with several

other Riverview employees in an adjacent hallway that entered

directly into the waiting area.           While Drouin could not hear the

whole conversation, she did overhear Begin say that he was not

going back to the hospital, even as he was told that he had no

choice in the matter and that a police officer was there to

transport him. One of the Riverview employees then signaled Drouin

to approach.


                                         - 4 -
            The parties' stipulation and Drouin's own statement of

undisputed facts indicate that when Drouin approached the entrance

to the waiting area she saw two individuals:                A mental health

contractor named Philip Hunt, who had transported Begin to the

Riverview office, and Begin.        Hunt was initially seated up to six

feet from Begin.      A physician's assistant named Russell Kimball

had previously been standing in front of Begin as he told Begin he

was being recommitted, but the record to which the parties direct

us does not show where Kimball was when Drouin reached the waiting

area.

            As Drouin approached, Begin stood up.            Begin made no

attempt to start forward.       Instead, he reached into his pocket

with his right hand; announced, "I should have done this moons

ago"; pulled out a black folding knife; and brought it down hard

on his left arm.     He did not say anything to anyone as he slashed

his arm.    Hunt, who was the person closest to Begin when he pulled

out   the   knife,   backed   out   of   the   way   when   he   saw   Drouin

approaching.

            About one second after Begin pulled out his knife, Drouin

drew her firearm and yelled "hey, hey, hey" in Begin's direction.

As Begin continued to cut at his arms, Drouin fired three shots,

hitting Begin twice in the chest and once in the left shoulder.

At that point, Drouin estimates that about four to six seconds had

passed since she first saw Begin.          She had not given Begin any


                                      - 5 -
express warnings or commands.        Drouin stopped shooting when Begin

fell to the floor.     Handcuffing him, she called for an ambulance.

           The    district   court   determined     for   summary    judgment

purposes   that   while   some   Riverview    employees    were     "in   close

proximity" to both Begin and Drouin, no one was "between" Drouin

and Begin when Begin raised the knife.          Further, it is accepted

that Drouin herself was as far as twenty feet from Begin when she

fired, and that Begin remained stationary, cutting himself while

making no threats or movements towards anyone.

           Just over a year later, Begin sued Drouin and the City

of Augusta in federal district court under 42 U.S.C. § 1983.               That

statute authorizes suit against any person who, acting under color

of state law, violates the federal constitutional or statutory

rights of another.    Begin's complaint alleged that Drouin violated

his Fourth Amendment right to be free from unreasonable seizures

when she shot him.

           The parties agreed to have the case heard by a United

States   magistrate    judge     exercising   the   jurisdiction      of    the

district court under 28 U.S.C. § 636(c)(1).               After discovery,

Drouin moved for summary judgment based, in part, on her qualified

immunity to federal damage claims arising out of the performance

of her official duties as a public employee.         See generally Harlow

v. Fitzgerald, 457 U.S. 800 (1982).




                                      - 6 -
             In a detailed and carefully researched opinion, the

magistrate     judge    (hereinafter      "the     district     court")    denied

Drouin's motion.       Reasoned the district court, the law at the time

Drouin shot Begin was clear that under the circumstances she could

not constitutionally shoot Begin unless he posed an immediate

threat to herself or others and only after, if feasible, providing

some kind of warning.         The court further found that the evidence,

as it stood on the summary judgment record, would allow a jury to

decide either way on the questions whether Begin posed an immediate

threat and whether a warning was feasible.

                                        II.

                                        A.

             The    parties   agree     that    Drouin's   stated   reason    for

shooting Begin was to protect herself and the other individuals

present from Begin when he whipped out his knife.               The law in this

circuit has long been clear that the "use of deadly force . . . is

reasonable    (and,    therefore,       constitutional)     only    when   'at   a

minimum, a suspect poses an immediate threat to police officers or

civilians.'"       McKenney, 873 F.3d at 81 (quoting Jarrett v. Town of

Yarmouth,    331    F.3d   140,   149    (1st    Cir.   2003)   (per   curiam)).

Further, when feasible, a warning must be given first.                 Id. at 82

(citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); Young v.

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

2005)).


                                         - 7 -
          Whether an immediate threat exists is a question of fact

for the jury as long as the evidence is sufficient to support such

a finding.   See Tolan v. Cotton, 134 S. Ct. 1861, 1867–68 (2014)

(reversing summary judgment for a police officer because "[a] jury

could well have concluded that a reasonable officer would have

heard Tolan's words not as a threat").         In this case, the district

court determined that the evidence could support a jury finding

"that Plaintiff did not pose an immediate threat to Defendant

Drouin and the others who were present."           That determination --

that the evidence was sufficient to support a jury verdict on an

issue of fact -- is not a ruling that we can review on this

interlocutory appeal.    Johnson, 515 U.S. at 311.

                                   B.

          The conclusion that a jury could find here the absence

of the immediate threat necessary to make a shooting constitutional

does not by itself mean that a jury could also find Drouin liable.

Police officers do not have the luxury of calmly considering the

circumstances   they   face   as   if   they    were   jurors   or   judges.

"[P]olice 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 . . . ."          Graham v.

Connor, 490 U.S. 386, 396-97 (1989).           Drouin therefore cannot be

held liable, even if Begin's rights were in fact violated, unless

the right implicated was "clearly established" and the plaintiff


                                    - 8 -
can "show that an objectively reasonable officer would have known

that [her] conduct violated the law."     Conlogue v. Hamilton, No.

17-2210, 2018 WL 4927553, at *3 (1st Cir. Oct. 11, 2018).        In

practice, qualified immunity doctrine "gives government officials

breathing room to make reasonable but mistaken judgments," thereby

guarding "all but the plainly incompetent or those who knowingly

violate the law" from liability.    Ashcroft v. al-Kidd, 563 U.S.

731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)).

           What the law does or does not clearly establish for

purposes of assessing a qualified immunity defense is itself a

question of law.   See Morse v. Cloutier, 869 F.3d 16, 22 (1st Cir.

2017) ("Generally, a claim that a certain body of facts makes out

a violation of clearly established law is deemed to present a

question of law, and, thus, is reviewable." (citing Camilo-Robles

v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998))).      So while we do not

reconsider the facts as found by the district court or as otherwise

viewed favorably to the plaintiff, we do consider afresh, and

without deference to the district court, whether given those facts

it was clear that no objectively reasonable officer would have

believed the use of deadly force was lawful.     See McKenney, 873

F.3d at 82.

           In determining whether an objectively reasonable police

officer would have thought it lawful to shoot Begin, a crucial


                                  - 9 -
consideration is the exact number and location of the Riverview

employees relative to Begin at the moment Drouin fired.                     See id.

Neither party points us to testimony by Begin or the Riverview

employees clearly locating themselves on a diagram of the room,

nor even describing narratively with any precision exactly where

they were at the time of the shooting.               Drouin reports seeing only

one person other than Begin in the waiting area as she reached the

entrance, and that was the person who then proceeded to back away

from Begin.      The size of the room itself, we are not told.                      On

appeal, Drouin simply asserts that the others were "within striking

distance of Begin," but that is wishful gloss that claims no

support    in   the    district     court's       Rule 56    assessment     of     the

undisputed facts.

            The district court did find that there was evidence the

Riverview personnel were in "close proximity" to both Drouin and

Begin, but that no one was "between" Drouin and Begin when Begin

raised the knife, and that no one faced any immediate threat from

Begin.    Does this mean only that no one was in the direct line of

fire?     Or does it mean that no one was in the room between Begin

and   Drouin    as    she   stood   with    gun   drawn     facing   him   standing

stationary in front of his chair?                   Given the unchallengeable

Rule 56    finding     that   a   jury   could      find   that   Begin    posed   no

immediate threat to anyone but himself, and given the ambiguous

record concerning precisely where each person stood at the moment


                                           - 10 -
Drouin decided to fire, we have no choice but to assume that Begin

could not have reached out and stabbed anyone first without

advancing as many as twenty feet toward the barrel of Drouin's

raised gun.     This reading of the ambiguous record on interlocutory

review provides an unwelcoming backdrop for Drouin's immunity

defense.

              Indeed, nowhere in her sixty-one pages of briefing does

Drouin claim that a reasonable officer would have fired were she

twenty feet away from Begin with all of the Riverview employees

aside or behind her, or otherwise similarly removed from Begin,

and   Begin    offering   no    hint    of   an   advance.    Rather,     Drouin

predicates most of her argument upon her preferred, but presently

unacceptable, spin on the record as locating "three people . . .

within striking distance of Begin."

              Our review of our own case law suggests why Drouin never

argues that she can prevail even if no one was closer to Begin

than she was.     In our 2017 decision in McKenney, we considered the

state of the law as it was clearly established as of April 2014,

approximately nine months before the events at the heart of this

case transpired. 873 F.3d at 78. We determined that "well-settled

precedents"     addressed      "the    lawfulness   of   using   deadly    force

against an individual who was suicidal, armed, slow in gait, some

distance away from the officer, and had received no commands or

warnings for several minutes."           Id. at 83.      The specific assumed


                                         - 11 -
facts in McKenney placed the plaintiff sixty-nine feet away, armed

with a gun and moving slowly towards an officer positioned behind

a car at the time he was shot.            There was clear visibility, six

minutes had passed since the officers had ordered McKenney to drop

his weapon, and no one warned him that he would be shot if he did

not comply.       Id. at 79.   The officer knew McKenney was suicidal,

and McKenney was not pointing his gun at anyone when the officer

fired.      Id. at 78. On such assumed facts, we held that a jury could

hold the officer liable for violating clearly established law.

              Of course no two cases are identical.        But a case need

not be identical to clearly establish a sufficiently specific

benchmark against which one may conclude that the law also rejects

the   use    of   deadly   force   in   circumstances   posing   less   of   an

immediate threat. Id. at 82–83 (quoting al-Kidd, 563 U.S. at 741);

Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir. 2017) ("[T]here is no

requirement of identicality. In arguing for clearly established

law, a plaintiff is not required to identify cases that address

the 'particular factual scenario' that characterizes his case."

(citing Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir. 2015))). We

must assume on the record in this case that Drouin knew that Begin

was intent on harming himself, that he threatened no one else by

word or movement, and that he had not received any warning or order

from Drouin.      While Begin was closer to Drouin (twenty feet) than

McKenney was to the officer who shot him (sixty-nine feet), Begin


                                        - 12 -
had a knife while McKenney had a gun.   We think that an objectively

reasonable officer would regard a knife at twenty feet as posing

no greater threat to an armed police officer than does a gun at

sixty-nine feet.    Nor do the facts here otherwise render Begin

more threatening than McKenney.     So, given that the law at the

time the officer in McKenney fired clearly established that that

shooting was unlawful on the plaintiff's version of the facts,

then the facts here -- as we must assume them to be -- also support

such a finding.

                                III.

          None of the foregoing means that Drouin in fact did

anything wrong.    Rather, it simply means that we cannot set aside

on this record the district court's conclusion that the evidence

viewed most favorably to Begin could support a verdict for Begin.

Whether the evidence actually presented at trial continues to

provide that support remains to be seen.

          For the foregoing reasons, we dismiss the appeal in part

for want of appellate jurisdiction to the extent Drouin challenges

the district court's assessment of the record, and we otherwise

affirm the district court's denial of summary judgment.




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