          United States Court of Appeals
                      For the First Circuit


No. 15-1141

EURIE A. STAMPS, JR., Co-administrator of the Estate of Eurie A.
   Stamps, Sr.; NORMA BUSHFAN-STAMPS, Co-administrator of the
                 Estate of Eurie A. Stamps, Sr.,

                      Plaintiffs, Appellees,

                                v.

   TOWN OF FRAMINGHAM; PAUL K. DUNCAN, individually and in his
 official capacity as a police officer of the Framingham Police
                           Department,

                     Defendants, Appellants.


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

        [Hon. F. Dennis Saylor, IV, U.S. District Judge]


                              Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Leonard H. Kesten, with whom Thomas R. Donohue, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief,
for appellants.
     Anthony Tarricone, with whom Joseph P. Musacchio, Kreindler
& Kreindler, LLP, Anthony W. Fugate, and Bardouille and Fugate
were on brief, for appellees.
     Matthew R. Segal, Adriana Lafaille, Ezekiel Edwards, Ilya
Shapiro, Benjamin Crump, Juan Cartagena, Jose Perez, Bradford M.
Berry, and Anson Asaka, on brief for the American Civil Liberties
Union, American Civil Liberties Union of Massachusetts, Cato
Institute, National Bar Association, LatinoJustice PRLDEF, and
National Association for the Advancement of Colored People -- New
England Area Conference, amici curiae in support of appellees.


                        February 5, 2016
          LYNCH, Circuit Judge.    This civil rights case brought

under 42 U.S.C. § 1983 arises from the tragic shooting death of an

innocent, elderly, African-American man, Eurie Stamps, Sr.   He was

shot by a local police officer, Paul Duncan, during a SWAT team

raid executing a search warrant for drugs and related paraphernalia

belonging to two drug dealers with violent criminal histories

thought to reside in Stamps's home.

          The co-administrators of Stamps's estate sued the Town

of Framingham and Duncan.      The plaintiffs argue that Duncan

violated Stamps's Fourth Amendment right against unreasonable

seizure when he pointed a loaded semi-automatic rifle at Stamps's

head, with his finger on the trigger and the safety off.     Duncan

did so even though Stamps had been subdued, was lying in a hallway

on his stomach with his hands above his head, and was compliant

and posed no known threat to the officers.       Duncan moved for

summary judgment on the ground that he was entitled to qualified

immunity because the shooting was an accident and, in any event,

not a violation of clearly established law.     The district court

denied the motion, holding that a reasonable jury could find that

Duncan had violated Stamps's Fourth Amendment rights and that the

law was sufficiently clearly established to put Duncan on notice

that pointing a loaded firearm at the head of an innocent and

compliant person, with the safety off and a finger on the trigger,




                              - 3 -
is not constitutionally permissible. Stamps v. Town of Framingham,

38 F. Supp. 3d 146, 151–58 (D. Mass. 2014).                     Duncan appealed.

             We agree with the district court and affirm the denial

of   the   defendants'       motion    for       summary    judgment      on    qualified

immunity.

                                            I.

             The    parties    do     not    dispute       that   we    properly       have

interlocutory jurisdiction.            The defendants have accepted, as they

did in the district court on summary judgment, that all inferences

from the record are drawn in the plaintiffs' favor. See Mlodzinski

v. Lewis, 648 F.3d 24, 27 (1st Cir. 2011) ("An interlocutory appeal

from a denial of summary judgment on qualified immunity grounds

lies only if the material facts are taken as undisputed and the

issue on appeal is one of law.").

             After    midnight        on    January        5,   2011,     a    group     of

approximately eleven SWAT team members executed a search warrant

at a first floor apartment in Framingham, Massachusetts.                            Eurie

Stamps, Sr., the decedent; Norma Bushfan-Stamps, his wife; and

Joseph Bushfan, his stepson, lived in the apartment.                           The search

warrant identified another man, Dwayne Barrett, as also occupying

the apartment.        The warrant was issued on probable cause that

Bushfan    and     Barrett    were     selling      crack       cocaine   out     of   the

apartment.       A third man, Deandre Nwaford, though not mentioned in

the warrant, was thought to be an associate of Bushfan and Barrett,


                                           - 4 -
and the police believed he might be in the apartment as well.        The

Framingham Police Department suspected all three men of having

ties to Boston gangs and criminal histories collectively including

armed robbery, armed assault, assault with a dangerous weapon,

assault and battery with a dangerous weapon, theft of a firearm,

and cocaine-related charges.   The warrant authorized a nighttime

search of the premises for drugs and related paraphernalia, but

did not authorize unannounced entry or command search of any person

found who might have such property in his possession.

           Before the raid, the SWAT team was briefed on the layout

of the apartment and the criminal histories of the occupants.

During this briefing, the SWAT team members were told that Stamps,

who was likely to be present in the apartment, was sixty-eight

years old and that his criminal record only consisted of "motor

vehicle   arrests/charges."    Stamps   was   not   suspected   of   any

involvement in the illegal activity underlying the search warrant

or of any crime.   The SWAT team members were also instructed that

Stamps had no history of violent crime or of owning or possessing

a weapon and that he posed no known threat to the officers

executing the warrant.

           The raid began just after midnight.1     After the officers

announced their presence, one team of officers set off a flash-


     1    Shortly before the raid began,        Joseph    Bushfan    was
apprehended outside of the apartment.


                               - 5 -
bang grenade through the kitchen window, while another team,

including Duncan, breached the apartment with a battering ram.

Upon entering, Duncan switched the selector on his loaded M-4 rifle

from "safe" to "semi-automatic."

           Two other SWAT team members, Officers Timothy O'Toole

and Michael Sheehan, encountered Stamps first, in a hallway that

separated the kitchen from the bathroom and a rear bedroom.             The

officers ordered Stamps to "get down," and he complied by lying

down on his stomach with his hands raised near his head.          A series

of officers stepped over Stamps to go elsewhere in the apartment.

Duncan, who had been ordered by a sergeant to assist O'Toole and

Sheehan as a "trailer," assumed control of Stamps while O'Toole

and Sheehan continued searching and clearing the apartment.

           Stamps remained prostrate on the hallway floor.            Duncan

pointed his rifle at Stamps's head as Stamps lay in the hallway.

The   rifle's   safety   was   still   disengaged    and   set   to   "semi-

automatic."     Duncan said nothing to Stamps.      At some point, Duncan

placed his finger on the trigger.2        The search continued in the




      2   The defendants have accepted, for purposes of this
appeal, the plaintiffs' statement of facts. Further, on review of
summary judgment, we are required to "draw[] all reasonable
inferences in the light most favorable to the nonmoving party."
Mitchell v. Miller, 790 F.3d 73, 76 (1st Cir. 2015). Given that
the defendants do not assert that the gun malfunctioned or fired
without Duncan pulling the trigger, it is also reasonable to infer
that Duncan, at some point before shooting Stamps, placed his
finger on the trigger.


                                  - 6 -
apartment.     Sometime before the shooting, a young man found in the

rear bedroom, Devon Talbert, was detained.             He was not one of the

suspects the police expected to find there.            The record before us

simply does not tell us what the status of the search was for

Barrett and Nwaford.

              While the other officers continued to search elsewhere

in the apartment, Duncan was pointing a loaded, semi-automatic

rifle, with the safety off and his finger on the trigger, at

Stamps.      Stamps was fully complying with the orders he was given,

was unarmed and flat on his stomach in the hallway, and constituted

no threat.       At some point, Duncan unintentionally pulled the

trigger of his rifle and shot Stamps.3            The shot was an accident;

Duncan had no intention of shooting Stamps.              The bullet pierced

Stamps's head, neck, and chest.           Stamps was taken by ambulance to

a hospital and pronounced dead.           Duncan was later dismissed from

the   SWAT    team   for   failing   to   abide   by   police   training   and

protocols.




      3   The plaintiffs maintain that Duncan pulled the trigger
while standing upright. Duncan, meanwhile, asserts that the rifle
discharged when he lost his balance and fell back. This happened,
he says, because, fearing that Stamps might reach for a weapon, he
attempted to move Stamps's hands behind his back in order to
handcuff him. However, the plaintiffs presented expert testimony
that Duncan's description was "implausible, highly unlikely and
inconsistent with the evidence." (capitalization omitted). In any
event, the defendants have agreed to accept the plaintiffs' version
for purposes of the appeal.


                                     - 7 -
             According to expert testimony, Duncan committed three

errors during his seizure of Stamps that violated police rules,

including Framingham rules, his training, and general firearms

protocol.4    First, accepting for purposes of this appeal that he


     4    The defendants argue that we may not consider police
training and procedures in determining whether there was a Fourth
Amendment violation.    We disagree.    Such standards do not, of
course, establish the constitutional standard but may be relevant
to the Fourth Amendment analysis. We have approved the taking of
evidence about police training and procedures into consideration.
See, e.g., Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d 312,
327 (1st Cir. 2015) (considering "standard police practice");
Raiche v. Pietroski, 623 F.3d 30, 37 (1st Cir. 2010); Jennings v.
Jones, 499 F.3d 2, 11–16, 19–20 (1st Cir. 2007) (noting that
evidence regarding officer training "is relevant both to the . . .
question of whether there was a violation at all and to the . . .
question . . . of whether a reasonable officer in [the defendant's]
circumstances would have believed that his conduct violated the
Constitution," id. at 19–20); Calvi v. Knox Cty., 470 F.3d 422,
428 (1st Cir. 2006). So have other courts. See, e.g., Young v.
Cty. of L.A., 655 F.3d 1156, 1162 (9th Cir. 2011); Torres v. City
of Madera, 524 F.3d 1053, 1057 (9th Cir. 2008) (agreeing that the
following "factors [had been] relevant to the reasonableness
determination" in a case where an officer unintentionally fired
his pistol when he meant to fire his Taser: "(1) the nature of the
training the officer had received to prevent incidents like this
from happening; (2) whether the officer acted in accordance with
that training; (3) whether following that training would have
alerted the officer that he was holding a handgun; (4) whether the
defendant's conduct heightened the officer's sense of danger; and
(5) whether the defendant's conduct caused the officer to act with
undue haste and inconsistently with that training" (citing Henry
v. Purnell, 501 F.3d 374, 383 (4th Cir. 2007))); Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003)
("Although . . . training materials are not dispositive, we may
certainly consider a police department's own guidelines when
evaluating whether a particular use of force is constitutionally
unreasonable.").    But see, e.g., Moreno v. Taos Cty. Bd. of
Comm'rs, 587 F. App'x 442, 446 (10th Cir. 2014); Thompson v. City
of Chi., 472 F.3d 444, 453–55 (7th Cir. 2006).
          To be clear, we do not mean to suggest that such evidence
is necessary -- or sufficient -- to establish a Fourth Amendment


                                - 8 -
placed his finger on the trigger, Duncan concedes that he violated

his training and Framingham Police Department protocol by doing

so.   According to Framingham Police Department policy in place at

the time, officers were required to "keep their finger[s] outside

of the trigger guard until ready to engage and fire on a target."

Framingham police officers, including Duncan, were trained on this

policy.

           Second,   Duncan    deviated   from   "proper,   reasonable,

established, and accepted police practices and procedures" and

"his training by having his weapon 'off safe' at all times when he

encountered Mr. Stamps.       The training provided to Officer Duncan

by the [Framingham Police Department] required that his weapon be

'on safe' unless he perceived Mr. Stamps as a threat or was

actively clearing a room."5       We accept for the purposes of this

appeal that neither was the case here.




violation, see Jennings, 499 F.3d at 20 n.24, or that compliance
with police protocols and training necessarily renders an
officer's conduct reasonable, see Smith v. Kan. City, Mo. Police
Dep't, 586 F.3d 576, 581–82 (8th Cir. 2009).

      5   This is according to one of the plaintiffs' experts, Kim
Widup. The parties dispute whether it was appropriate for Duncan
to have the safety off on his rifle. The defendants note that one
of the plaintiffs' experts, James Gannalo, opined that not engaging
the gun's safety was a "judgment call." Because of the posture of
this appeal, we assume facts in the light most favorable to the
plaintiffs.   See Mitchell, 790 F.3d at 76.       As such, we are
satisfied that a jury could find on these facts that Duncan
deviated from his training and standard police practice when he
turned off his rifle's safety.


                                  - 9 -
          Third,   Duncan    additionally   violated   "basic   firearm

safety procedures" and "departmental guidelines" by "fail[ing] to

keep the weapon's muzzle pointed in a safe direction at all times."

(emphasis omitted).6

                                  II.

          On October 12, 2012, Norma Bushfan-Stamps and Eurie

Stamps, Jr., Stamps's son, as the co-administrators of Stamps's

estate, brought suit on behalf of the estate against Duncan and

the Town of Framingham.     They brought ten claims, including claims


     6     This is according to the plaintiffs' expert, James
Gannalo. Widup similarly opined that "[i]n direct violation of
[Framingham Police Department] protocol, his training, and
reasonable and customary police weapons practices and procedure,
Officer Duncan failed to point his rifle's muzzle in a safe
direction when he stood in the kitchen and encountered Mr. Stamps."
           The defendants' representations to the contrary in their
Rule 28(j) letter are flatly repudiated by the record. We expect
better from counsel.
           Even considering Duncan's version of the facts, in which
the potential threat he perceived may have justified training the
rifle on Stamps, the plaintiffs have produced expert testimony
that Duncan should not have attempted to handcuff Stamps while
covering him with the rifle, but instead should have maintained
his position as cover officer and called someone to help, a
technique known as "contact/cover." Widup opined that, even on
Duncan's version of the facts, "Duncan deviated from his training
and standard and reasonable police procedure by failing to utilize
the contact/cover procedure." That was also the view of Sergeant
Vincent Stuart and Lieutenant Robert Downing, both of whom
participated in the raid. The training Duncan received required
this, as admitted by Police Chief Steven Carl.         And this is
precisely what the officers who seized Devon Talbert did when they
found him in the bedroom. Although this evidence certainly is not
determinative of the Fourth Amendment inquiry, we are likewise
satisfied here, as with the evidence discussed above, that a jury
could find on these facts that Duncan violated standard police
procedure.

                                 - 10 -
under § 1983 against Duncan for violations of both the Fourth and

Fourteenth Amendments, a claim under § 1983 against the Town of

Framingham for negligent training and supervision, and claims of

wrongful death under Massachusetts law against Duncan and the Town

of Framingham.

             The defendants moved for summary judgment on all but one

of the claims, a state-law wrongful death claim against the Town

of Framingham.     Summary judgment was granted to the defendants on

seven of the nine counts, leaving two § 1983 claims against Duncan

predicated on violations of the Fourth Amendment.         In pressing for

summary judgment on these two counts, the defendants had argued

that Duncan was entitled to qualified immunity because 1) an

unintentional shooting does not violate the Fourth Amendment, and

2) even if there were a Fourth Amendment violation, the law had

not   clearly   established   that    his   conduct   constituted   such   a

violation.

             The district court disagreed and denied Duncan's motion

as to those two claims.       See Stamps, 38 F. Supp. 3d at 151–58.

This appeal followed.

                                     III.

             We review de novo the district court's denial of summary

judgment on qualified immunity grounds.         Riverdale Mills Corp. v.

Pimpare, 392 F.3d 55, 60 (1st Cir. 2004); cf. Lopera v. Town of

Coventry, 640 F.3d 388, 395 (1st Cir. 2011) (noting that the same


                                 - 11 -
standard applies to a grant of summary judgment on qualified

immunity grounds).

           The   rules   for   granting     qualified    immunity     are   well

established.      "The    doctrine    of     qualified     immunity    shields

officials from civil liability so long as their conduct 'does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.'"              Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)).         "A clearly established right

is one that is 'sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.'"

Id. (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).

           This court adheres to a two-step approach to determine

whether a defendant is entitled to qualified immunity: "We ask

'(1) whether the facts alleged or shown by the plaintiff make out

a violation of a constitutional right; and (2) if so, whether the

right was "clearly established" at the time of the defendant's

alleged   violation.'"7        Mlodzinski,    648   F.3d    at   32   (quoting


     7    At this stage of the litigation, we do not have
"jurisdiction to decide whether any constitutional violations
actually occurred or to resolve any factual disputes necessary to
make that determination." Maldonado v. Fontanes, 568 F.3d 263,
268 (1st Cir. 2009).    Rather, accepting the facts in the light
most favorable to the plaintiffs, as we must, we have jurisdiction
to determine whether "the plaintiffs have . . . stated cognizable
constitutional violations," and "whether the constitutional rights
. . . allegedly violated were clearly established at the time."
Id. In this posture, an officer is entitled to qualified immunity


                                   - 12 -
Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)).                    The

second prong, in turn, has two elements: "We ask (a) whether the

legal contours of the right in question were sufficiently clear

that a reasonable officer would have understood that what he was

doing violated the right, and (b) whether in the particular factual

context of the case, a reasonable officer would have understood

that his conduct violated the right."           Id. at 32–33.

             Following this framework, the district court held on

prong one that "[e]ven the unintentional or accidental use of

deadly force in the course of an intentional seizure may violate

the Fourth Amendment if the officer's actions that resulted in the

injury were objectively unreasonable."              Stamps, 38 F. Supp. 3d at

152.    The court then found that "there are substantial issues as

to the reasonableness of Duncan's conduct as a whole," id. at 153,

emphasizing the low risk posed by Stamps and the high risk created

by Duncan aiming his rifle at Stamps's head with the safety off

and    his   finger   on   the   trigger,    id.,    and   concluded   that    "a

reasonable jury could find that Duncan's actions leading up to the

shooting were objectively unreasonable, and therefore that he




"[i]f even on plaintiffs' best case, there is no violation of their
rights, or the law was not clearly established, or an objectively
reasonable officer could have concluded (even mistakenly) that his
or her conduct did not violate their rights."      Mlodzinski, 648
F.3d at 28.


                                    - 13 -
employed excessive force in violation of the Fourth Amendment,"

id. at 154.     We agree.

            On prong two, the district court stated that "it was

clearly    established      at   the    time    of    the    incident       that   the

unintentional or accidental use of deadly force during a seizure

can give rise to a constitutional violation if the officer has

acted unreasonably in creating the danger."                  Id.    The court then

found that the law was clearly established such that Duncan would

have been on notice that his conduct violated the Fourth Amendment,

and accordingly denied Duncan's plea for summary judgment on

qualified immunity.      Id. at 154–58.         Again, we agree.

                                        IV.

            A   jury   could     reasonably     find       that    Duncan    violated

Stamps's   Fourth      Amendment    rights.          The    defendants'      primary

argument, in fact what appears to be their principal reason for

taking this interlocutory appeal, is that Duncan's actions are not

subject to Fourth Amendment review because the shooting itself was

not intentional.       We reject that argument.              They then make the

secondary argument that even if Duncan's actions are within the

ambit of Fourth Amendment review, a jury could not find that his

decision to point the rifle at Stamps's head with the safety off

and his finger on the trigger was objectively unreasonable under

the law.




                                       - 14 -
          One point of the Fourth Amendment is to protect an

individual from a police officer's use of excessive force in

effectuating a seizure.     See Raiche v. Pietroski, 623 F.3d 30, 36

(1st Cir. 2010).   Where an officer creates conditions that are

highly likely to cause harm and unnecessarily so, and the risk so

created actually, but accidentally, causes harm, the case is not

removed from Fourth Amendment scrutiny.

          To make out a Fourth Amendment excessive force claim, a

plaintiff must show, as an initial matter, that there was a seizure

within the meaning of the Fourth Amendment, and then that the

seizure was unreasonable.    "A Fourth Amendment seizure occurs when

a police officer 'has in some way restrained the liberty of a

citizen' through 'physical force or show of authority.'"     United

States v. Camacho, 661 F.3d 718, 725 (1st Cir. 2011) (quoting Terry

v. Ohio, 392 U.S. 1, 19 n.16 (1968)).      A person is seized by an

officer's show of authority if "a reasonable person would have

believed that he was not free to leave," INS v. Delgado, 466 U.S.

210, 215 (1984) (quoting United States v. Mendenhall, 446 U.S.

544, 554 (1980) (opinion of Stewart, J.)), and he in fact submits

to the officer's assertion of authority, California v. Hodari D.,

499 U.S. 621, 626 (1991).    The Fourth Amendment is only implicated

if the "governmental termination of freedom of movement [was]

through means intentionally applied."    Brower v. Cty. of Inyo, 489

U.S. 593, 597 (1989).


                                - 15 -
            Stamps was undoubtedly seized.         See Mendenhall, 446 U.S.

at 554 (opinion of Stewart, J.) (citing "display of a weapon by an

officer" as an "[e]xample[] of [a] circumstance[] that might

indicate a seizure").       The defendants do not dispute this.                No

reasonable person could possibly have felt free to leave with an

assault rifle pointed directly at his head.              And Stamps submitted

to Duncan's show of authority by remaining prostrate on the ground

with his hands in the air.

            The defendants, however, argue that, as a matter of law,

the Fourth Amendment does not apply to Duncan's conduct because

the   shooting   itself   was    unintentional,      and    thus      not   "means

intentionally    applied,"      Brower,    489    U.S.     at   597    (emphasis

omitted).     The heart of their argument is that regardless of

Duncan's actions leading up to the moment he pulled the trigger,

the inadvertence of the shot shields him from Fourth Amendment

scrutiny.

            We cannot agree.     The defendants' proposed rule has the

perverse    effect   of   immunizing      risky   behavior      only   when   the

foreseeable harm of that behavior comes to pass.8


      8   Consider, for example, what would have happened had
everything else been the same but for the last act: the gun was
not fired. Whether or not it was found to be a Fourth Amendment
violation, there is no question that Duncan's conduct would be
susceptible to Fourth Amendment scrutiny.     See Mlodzinski, 648
F.3d at 38. Stamps could have brought a § 1983 claim just as the
plaintiffs did in Mlodzinski, and the case would have proceeded as
normal.   It makes no sense, then, to find that the exact same


                                   - 16 -
             The   Supreme    Court's     opinion    in   Brower    illustrates

precisely why the defendants' reasoning is flawed.               In Brower, the

police were engaged in a high-speed chase with a suspect, Brower,

who was driving a stolen vehicle.             Id. at 594.       In an effort to

stop him, the police positioned "an 18-wheel tractor-trailer . . .

across both lanes of a two-lane highway in the path of Brower's

flight," "concealed[] this roadblock by placing it behind a curve

and leaving it unilluminated," and "positioned a police car, with

its headlights on, between Brower's oncoming vehicle and the truck,

so that Brower would be 'blinded' on his approach."                 Id.    Brower

was killed when he crashed into the tractor-trailer, and his heirs

brought a § 1983 claim against the county.             Id.

             The Court faced the question whether the use of the

roadblock constituted a seizure within the meaning of the Fourth

Amendment.    The guiding principle identified by the Court was that

a seizure only occurs "when there is a governmental termination of

freedom of movement through means intentionally applied."                  Id. at

597.   Finding      that     the   use   of   the   roadblock    was   a   "means

intentionally applied," the Court stated:

             In   determining  whether   the   means   that
             terminates the freedom of movement is the very
             means that the government intended we cannot
             draw too fine a line, or we will be driven to
             saying that one is not seized who has been
             stopped by the accidental discharge of a gun

conduct becomes unreviewable because Duncan accidentally fired the
gun.


                                     - 17 -
                 with which he was meant only to be bludgeoned,
                 or by a bullet in the heart that was meant
                 only for the leg. We think it enough for a
                 seizure that a person be stopped by the very
                 instrumentality set in motion or put in place
                 in order to achieve that result.

Id. at 598–99 (emphasis added).9              Aware that identifying the

roadblock as a seizure was not enough alone to make out a Fourth

Amendment claim, the Court noted that "[p]etitioners can claim the

right       to     recover   for   Brower's   death   only   because   the

unreasonableness they allege consists precisely of setting up the

roadblock in such manner as to be likely to kill him."             Id. at

599.




        9 The defendants appear to quibble over the meaning of
"instrumentality," asserting that only the display of the gun, and
not the bullet, was "intentionally applied," and therefore the
shooting itself is outside the Fourth Amendment. But this type of
hairsplitting was plainly rejected by the Supreme Court in Brower
when it offered the example of a suspect who is "stopped by the
accidental discharge of a gun with which he was meant only to be
bludgeoned."   Brower, 489 U.S. at 598–99.    In this context, we
decline to entertain the fiction that the bullet is somehow an
"instrumentality" distinct from the rifle. We reject as well the
defendants' attempt to draw a line between the use of a gun as a
show of authority and the use of a gun to inflict physical harm.
We find no reason in Brower, nor can we find a principled reason,
to distinguish between attempting to seize someone by pointing a
gun at his head, using the gun as a bludgeon, or even throwing the
gun or strategically placing it such that the individual trips
over it; in all of these situations the gun is "the very
instrumentality set in motion or put in place in order to" seize
the individual. Id. at 599. Indeed, the Court in Brower did not
fret over such an argument, characterizing the tractor-trailer as
"not just a significant show of authority to induce a voluntary
stop, but . . . designed to produce a stop by physical impact if
voluntary compliance does not occur." Id. at 598.


                                     - 18 -
            Brower stands for the proposition that an officer can be

held liable under the Fourth Amendment for an intentional but

unreasonably dangerous seizure, even when the means employed to

effectuate the seizure result -- unintentionally -- in someone's

death.      In   the       wake   of   Brower,    this    court     affirmed    that

"unintentional        conduct      [can]      trigger[]       Fourth     Amendment

liability."      Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 n.9

(1st Cir. 1990).10         So have other circuits.

            There is widespread agreement among the circuits that

have addressed the issue that a claim is stated under the Fourth

Amendment     for     objectively       unreasonable      conduct      during   the

effectuation     of    a    seizure    that   results    in   the   unintentional

discharge of an officer's firearm.               That reasoning underlies the

decisions in recent cases like Estate of Bleck ex rel. Churchill

v. City of Alamosa, 540 F. App'x 866, 874–77 (10th Cir. 2013),

cert. denied, 134 S. Ct. 2845 (2014), and Watson v. Bryant, 532 F.

App'x 453, 457–58 (5th Cir. 2013) (per curiam) ("An undisputedly


     10   Contrary to the defendants' assertion, our opinion in
Landol-Rivera is not inconsistent with our conclusion here. There,
a police officer accidentally shot a hostage while trying to stop
a fleeing felon. Landol-Rivera, 906 F.2d at 791–92. Resting on
Brower's intent requirement, we reasoned that it was not the
officer's intent to seize the hostage: "It is intervention directed
at a specific individual that furnishes the basis for a Fourth
Amendment claim."     Id. at 796.     That holding simply has no
relevance here since there is no question that Stamps was the
intended target of Duncan's seizure. Landol-Rivera specifically
"emphasize[d] that our decision does not mean that Fourth Amendment
consequences may never result from unintended action." Id.


                                       - 19 -
accidental shooting . . . does not end the inquiry.                   [The officer]

still        may    have    violated       the   Fourth   Amendment   if     he   acted

objectively unreasonably by deciding to make an arrest, by drawing

his pistol, or by not reholstering it before attempting to handcuff

[the plaintiff].").                As the en banc court stated in Henry v.

Purnell, 652 F.3d 524 (4th Cir. 2011) (en banc), cert. denied, 132

S. Ct. 781 (2011), "[a]ll actions, . . . mistaken or otherwise,

are subject to an objective test," id. at 532.                   Of course, cases

more recent than the incident do not establish pre-incident notice

of clearly established rules.                    But the reasoning they apply is

derived from pre-2011 cases.                 See Torres v. City of Madera, 524

F.3d 1053, 1056–57 (9th Cir. 2008); Henry v. Purnell, 501 F.3d

374, 379–82 (4th Cir. 2007); Tallman v. Elizabethtown Police Dep't,

167 F. App'x 459, 463 (6th Cir. 2006) ("There is no evidence from

which a jury could conclude that [the officer] intentionally

discharged his weapon.                We therefore focus the reasonableness

inquiry on [the officer's] actions leading up to the unintentional

discharge of the weapon." (citing Leber v. Smith, 773 F.2d 101,

105   (6th         Cir.    1985)    ("It    is   undisputed   that    [the   officer]

unintentionally discharged his weapon as he slipped and fell; the

question is whether he acted reasonably in drawing his gun.")));

Pleasant v. Zamieski, 895 F.2d 272, 276–77 (6th Cir. 1990).11


        11Duncan attempts to undermine the clear weight of this
authority by suggesting that some of these cases involved an


                                            - 20 -
              The defendants point to several circuit cases that they

claim stand for the opposite conclusion, most notably Dodd v. City

of Norwich, 827 F.2d 1 (2d Cir. 1987).           See Speight v. Griggs, 620

F. App'x 806 (11th Cir. 2015) (per curiam); Powell v. Slemp, 585

F. App'x 427 (9th Cir. 2014); Culosi v. Bullock, 596 F.3d 195 (4th

Cir. 2010). They also rely on district court opinions. See, e.g.,

Brice v. City of York, 528 F. Supp. 2d 504 (M.D. Pa. 2007); Greene

v. City of Hammond, No. 2:05-CV-83, 2007 WL 3333367 (N.D. Ind.

Nov. 6, 2007); Clark v. Buchko, 936 F. Supp. 212 (D.N.J. 1996);

Troublefield v. City of Harrisburg, Bureau of Police, 789 F. Supp.

160   (M.D.    Pa.),   aff'd,   980    F.2d    724   (3d   Cir.   1992)   (table

decision); Glasco v. Ballard, 768 F. Supp. 176 (E.D. Va. 1991).

Only one case that the defendants cite, Dodd, is a published

appellate court opinion whose holding supports their position.12



officer's intentional conduct that rested on a mistake of fact,
rather than an officer's wholly unintentional conduct. The cases
do not split such hairs, nor do we see any reason they should.
When an officer's intentional actions in effecting a seizure create
an unreasonable risk of physical harm, the Fourth Amendment has
already been violated; whether it is unintended action or intended
but mistaken action that ultimately actualizes the harm (or,
indeed, whether no physical harm comes to pass at all) is
immaterial.

      12  Culosi did not expressly hold that an accidental
shooting that results from an officer's intentional use of a
firearm is immune from Fourth Amendment scrutiny.    Rather, the
Fourth Circuit, noting that the officer's appeal centered on
factual and not legal issues, dismissed the appeal for lack of
jurisdiction. Culosi, 596 F.3d at 201–03. At most, the Fourth
Circuit stated in dicta that the following "framing of the issue
is quite correct": "[W]as the shooting death of [the plaintiff]


                                      - 21 -
the result, on the one hand, of an intentional act by [the
defendant], or, on the other hand, was it the result of a tragic
and deeply regrettable, unintentional, accidental, discharge of
[the defendant's] firearm?"     Id. at 200.   Moreover, the Fourth
Circuit's subsequent en banc opinion in Henry accords with our
reasoning. See Henry, 652 F.3d at 532.
           Neither did Powell hold what the defendants attribute to
it. There, the Ninth Circuit skipped the Fourth Amendment inquiry
entirely and proceeded directly to the question of clearly
established law. Powell, 585 F. App'x at 427–28. It did note,
however, that since there was no evidence that the police officer
intentionally shot the plaintiff, "we focus on what the district
court characterized as [the plaintiff's] 'primary theory of
liability' -- that [the defendant] used excessive force when he
attempted to restrain [the plaintiff] with his firearm drawn," id.
at 427, which would suggest that the court's views are in line
with ours.    The court reversed the district court's denial of
summary judgment on qualified immunity because it found that there
was no "existing law [that] would have made it 'sufficiently clear'
to a reasonable officer in [the officer's] position that attempting
to restrain [the plaintiff] with his gun drawn violated her Fourth
Amendment rights," and thus the officer "was entitled to qualified
immunity."    Id.    This holding says nothing about the Ninth
Circuit's views on whether the accidental results of intentional
conduct can give rise to Fourth Amendment liability. In fact, its
holding in Torres would seem to suggest that it agrees with our
analysis. See Torres, 524 F.3d at 1056–57.
           Finally, Speight also provides little aid to the
defendants. In Speight, the district court explicitly held that
because "[the officer's] unintentional shooting of [the plaintiff]
during the course of the arrest [did] not insulate him from
liability under the Fourth Amendment," the court needed to
determine "whether [the officer's] conduct leading up to the gun's
accidental discharge was objectively reasonable."       Speight v.
Griggs, 13 F. Supp. 3d 1298, 1320–21 (N.D. Ga. 2013). But because
the district court found the officer's conduct objectively
reasonable, it declined to address the "clearly established" prong
of the qualified immunity analysis. Id. at 1323. On appeal, the
Eleventh Circuit did not address the lower court's analysis on
this point.    Rather, it merely stated that "[i]n this circuit,
there is no clearly established right to be free from the
accidental application of force during arrest." Speight, 620 F.
App'x at 809 (emphasis added). In other words, Speight expressed
no view on whether or not the district court's underlying
constitutional analysis was sound.


                              - 22 -
            We find these cases relied on by the defendants to be

distinguishable in light of Brower's clear command.     To be sure,

both Dodd and Brower recognize that Fourth Amendment liability

only attaches to intentional conduct. But to the extent that Dodd,

or any of the other cases cited by the defendants, can be read for

the proposition that unintended harms arising from intentional and

unreasonable police conduct are never within the purview of the

Fourth Amendment, they are not good law in light of Brower.13

            Our decision today, on the other hand, flows necessarily

from Brower.    While in Brower "the very instrumentality set in

motion" was the tractor-trailer roadblock, here it was the assault

rifle.    In both cases, the instrumentality was set in motion in a

highly dangerous fashion, and the resulting deaths were accidents.

But in neither case does -- nor should -- the accidental result of

the dangerous conduct prevent Fourth Amendment review.       As the

Brower Court noted, the core of the plaintiffs' case "consist[ed]

precisely of setting up the roadblock in such manner as to be

likely to kill."    Brower, 489 U.S. at 599.   We need only replace



     13   We are not persuaded that the citation to Dodd in a
footnote in Landol-Rivera signifies this circuit's adoption of
Dodd. See Landol-Rivera, 906 F.2d at 796 n.9. We do not read the
neutral phrase, "[c]ompare this statement in Brower with Dodd v.
City of Norwich" as an endorsement of Dodd's holding. If anything,
Dodd is cited in the footnote for the fact that the officer's gun
had discharged after the suspect had initiated a struggle with the
officer, not during the officer's effectuation of the seizure, and
was therefore not within the purview of the Fourth Amendment. Id.


                               - 23 -
"setting up the roadblock" with "pointing the rifle" to arrive at

the claim presented in this case.

                                      V.

            As to the defendants' second argument, we think it close

to self-evident that a jury could find as a matter of fact that

Duncan's actions were not reasonable, and no extensive discussion

beyond what we have said is required.          The question then moves to

whether the law was clearly established. We ask "whether the legal

contours of the right in question were sufficiently clear that a

reasonable officer would have understood that what he was doing

violated the right," and then consider "whether in the particular

factual context of the case, a reasonable officer would have

understood that his conduct violated the right."            Mlodzinski, 648

F.3d at 32–33.      Whether the law was clearly established is itself

a question of law for the court.       Elder v. Holloway, 510 U.S. 510,

516 (1994).

            In conducting this analysis, we are mindful of the

Supreme   Court's    most   recent    pronouncement    on   this     issue   in

Mullenix.     It    cautioned   the   courts    "not   to   define    clearly

established law at a high level of generality," and reiterated

that "[t]he dispositive question is 'whether the violative nature

of particular conduct is clearly established.'"              Mullenix, 136

S. Ct. at 308 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011)). It noted that "[s]uch specificity is especially important


                                 - 24 -
in the Fourth Amendment context, where the Court has recognized

that '[i]t is sometimes difficult for an officer to determine how

the relevant legal doctrine, here excessive force, will apply to

the   factual   situation   the   officer   confronts.'"        Id.   (second

alteration in original) (quoting Saucier v. Katz, 533 U.S. 194,

205 (2001), overruled in part on other grounds by Pearson, 555

U.S. at 236).    The Court explained that the "correct inquiry" in

the Fourth Amendment context is "whether it was clearly established

that the Fourth Amendment prohibited the officer's conduct in the

'situation [she] confronted.'" Id. at 309 (alteration in original)

(quoting    Brosseau   v.   Haugen,   543   U.S.   194,   200   (2004)   (per

curiam)).

            We believe that the state of the law was clear such that

a reasonable officer in Duncan's position would have understood

that pointing his loaded assault rifle at the head of a prone,

non-resistant, innocent person who presents no danger, with the

safety off and a finger on the trigger, constituted excessive force

in violation of that person's Fourth Amendment rights.14                   In


      14  As to the Brower issue, we need not belabor what we have
just said. We do not believe that Dodd, which was decided before
Brower, or a smattering of district court cases rendered the law
unclear on this point. See Camreta v. Greene, 131 S. Ct. 2020,
2033 n.7 (2011) ("[D]istrict court decisions -- unlike those from
the courts of appeals -- do not necessarily settle constitutional
standards or prevent repeated claims of qualified immunity," and
therefore "[m]any Courts of Appeals . . . decline to consider
district court precedent when determining if constitutional rights
are clearly established for purposes of qualified immunity.").


                                  - 25 -
concluding that this case must go to a jury for determination, we

rely on Brower and on our prior circuit precedent, and we confirm

our ruling by observing that clearly settled Fourth Amendment law

as of the time of Stamps's death fully cohered with commonly

accepted precepts on appropriate use of firearms and appropriate

police procedures.

            Our opinion in Mlodzinski speaks directly to this issue.

There, we affirmed the denial of summary judgment on qualified

immunity to officers who, in 2006, detained two innocent and

compliant   women   at   gunpoint    during   a   late-night   police   raid

executing a search warrant, issued on probable cause to believe

that the seventeen-year-old boy who lived at the women's residence

had severely beaten another boy with an expandable nightstick.15

Mlodzinski, 648 F.3d at 29–31.       The first woman, the fifteen-year-

old sister of the suspect, was shoved to the floor, handcuffed,

and "detained with an assault rifle held to her head for seven to

ten minutes."   Id. at 37.    We found that "[a] reasonably competent

officer . . . would not have thought that it was permissible to

point an assault rifle at the head of an innocent, non-threatening,

and handcuffed fifteen-year-old girl for seven to ten minutes, far


     15   Mlodzinski was decided on June 2, 2011, five months after
Stamps's death, and so was obviously not on the books at the time
of the shooting.     However, we denied qualified immunity in
Mlodzinski because we found that the law was clearly established
on the facts of that case as of, at least, August 2, 2006, the
date of the raid. See Mlodzinski, 648 F.3d at 27, 37–39.


                                    - 26 -
beyond the time it took to secure the premises and arrest and

remove the only suspect."     Id. at 38.     The second woman, the

suspect's mother, was held at gunpoint for thirty minutes while

forced to sit nearly nude in her bed.      Id. at 38–39.   Though we

recognized that the officers "did initially have to make split

second decisions to assess [the mother's] threat level and the

possible need for restraint, that does not characterize the entire

period in the bedroom" because "it quickly became clear" that she

was not a suspect, was compliant with orders, and did not pose a

danger to the officers.   Id. at 39.

          This case bears a remarkable resemblance to Mlodzinski.

Both cases involve officers pointing firearms at the heads of

innocent, compliant individuals during the course of SWAT team

raids at residences thought to be occupied by other individuals

who were dangerous.   And neither the sister nor the mother in

Mlodzinski, nor Stamps, was thought to be dangerous.       Mlodzinski

affirms that as of at least August 2, 2006, the date of the raid

at issue in that case, the state of the law was clear enough to

put police officers on notice that a warrant to conduct a SWAT

raid does not grant them license to aim their weapons at the heads

of submissive and nonthreatening bystanders.16    As we recognized,


     16   Duncan alludes to our observation in Mlodzinski that the
outcome of the case may have varied if, for example, the officer
had pointed the gun at the mother's head "for only a very short
period." Mlodzinski, 648 F.3d at 40. In Mlodzinski, though, it


                              - 27 -
this is especially true where, as here, a jury could find that the

officer is not forced to act based on a split-second judgment about

the appropriate level of force to employ.         See id.; cf. Graham v.

Connor, 490 U.S. 386, 396–97 (1989).          Reviewing the facts in the

light most favorable to the plaintiffs, a jury could find that

Duncan had adequate time to determine that there was no reasonable

threat   posed   by   Stamps    and   to   calibrate     his   use    of   force

accordingly.     See Henry, 652 F.3d at 533 ("It bears emphasis that

this also was not a situation in which circumstances deprived [the

officer] of the opportunity to fully consider which weapon he had

drawn before firing. . . .       There was no evidence indicating that

[the officer] did not have the split-second he would have needed

to at least glance at the weapon he was holding to verify that it

was indeed his Taser and not his Glock.").

           In    light   of    Mlodzinski,   as   well    as   long-standing

precedent from other circuits, a reasonable officer in early 2011

would have understood that Duncan's conduct, as a jury could find

it, violated clearly established Fourth Amendment law.               See, e.g.,

Espinosa v. City & Cty. of S.F., 598 F.3d 528, 537–38 (9th Cir.

2010) (denying summary judgment on qualified immunity to officers

who pointed loaded guns at a suspect "given the low level of

threat"); Baird v. Renbarger, 576 F.3d 340, 345 (7th Cir. 2009)


was not assumed that the officers had turned off their guns'
safeties or that they had kept their fingers on the triggers.


                                   - 28 -
(denying summary judgment on qualified immunity and noting that

"gun pointing when an individual presents no danger is unreasonable

and violates the Fourth Amendment"); Tekle v. United States, 511

F.3d 839, 845–48 (9th Cir. 2007) (denying summary judgment on

qualified immunity and noting that "[w]e have held since 1984 that

pointing a gun at a suspect's head can constitute excessive force

in this circuit," id. at 847); Holland ex rel. Overdorff v.

Harrington, 268 F.3d 1179, 1192–93, 1196–97 (10th Cir. 2001)

(denying summary judgment on qualified immunity and holding, "[w]e

can find no substantial grounds for a reasonable officer to

conclude that there was legitimate justification for continuing to

hold the young people outside the residence directly at gunpoint

after they had completely submitted to the SWAT deputies' initial

show of force," id. at 1197); Jacobs v. City of Chi., 215 F.3d

758, 773–74 (7th Cir. 2000) (reversing district court's grant of

motion to dismiss on qualified immunity to officers who "pointed

a loaded weapon at [the plaintiff] for an extended period of time

when they allegedly had no reason to suspect that he was a

dangerous criminal, or indeed that he had committed any crime at

all, [the plaintiff] was unarmed, and when [the plaintiff] had

done   nothing   either   to   attempt     to   evade   the   officers   or   to

interfere   with   the    execution   of    their   duties");    McDonald     v.

Haskins, 966 F.2d 292, 292–95 (7th Cir. 1992) (affirming district

court's denial of motion to dismiss on qualified immunity where an


                                  - 29 -
officer held a gun to the head of a nine-year-old boy who "posed

no threat to the safety of [the officer] or any other police

officer present, was not actively resisting arrest or attempting

to evade arrest by fleeing, . . . was not engaged in any assaultive

behavior toward [the officer] or the other officers" and "was

neither under arrest nor suspected of committing a crime, was not

armed, and was not interfering or attempting to interfere with

[the officers] in the execution of their duties," id. at 292–93);

cf. Robinson v. Solano Cty., 278 F.3d 1007, 1014 (9th Cir. 2002)

(en banc) (noting that "under more extreme circumstances the

pointing of a gun has been held to violate even the more rigorous

standard . . . [that] conduct [be] so excessive that it 'shock[s]

the conscience.'" (citing McKenzie v. Lamb, 738 F.2d 1005, 1010

(9th Cir. 1984); Black v. Stephens, 662 F.2d 181, 188–89 (3d Cir.

1981))).

           We acknowledge that each of these cases presented unique

sets of facts that in some respects differ from the facts presented

in the case at hand.      Nonetheless, their factual differences do

not   obscure   or   detract   from   the   straightforward     rule   that,

collectively,    they   all    espouse.     When   considered    alongside

Mlodzinski, these cases plainly put police officers in these

circumstances on notice that pointing a firearm at a person in a

manner that creates a risk of harm incommensurate with any police

necessity can amount to a Fourth Amendment violation. On the facts


                                  - 30 -
as a jury might find them to be in this case (safety off, finger

on the trigger, and gun pointed at the head of a prone person known

not to pose any particular risk), it was clear under existing law

that Duncan used his gun in a manner that unlawfully created such

a risk.

               In light of what we have just said, we conclude that

Duncan, "in the 'situation [he] confronted,'"              Mullenix, 136 S.

Ct. at 309 (quoting Brosseau, 543 U.S. at 200), was on notice that

his actions could be found violative of Stamps's Fourth Amendment

right to be free from excessive force.            Existing precedent places

this conclusion "beyond debate," id. at 308 (quoting al-Kidd, 563

U.S. at 741).

               We find further confirmation for our conclusion in the

expert testimony presented by the plaintiffs.              In Mullenix, the

Court parried the dissent's critique of the reasonableness of the

officer's      decision-making     by   stating   that   "others   with   more

experience analyze the issues differently," and pointing to a brief

filed     by    the    National   Association     of   Police   Organizations

discussing the options and risks informing the reasonableness of

the officer's decision-making. Mullenix, 136 S. Ct. at 311. Here,

in contrast, we have a procedural posture and a record supporting

the conclusion that police officers are customarily taught not to

do what Duncan did.        See Jennings v. Jones, 499 F.3d 2, 19–20 (1st

Cir. 2007).           This evidence reinforces the conclusion that the


                                    - 31 -
unreasonableness of Duncan's conduct, as a jury could find it, was

well established.     Not only had the unreasonableness of Duncan's

alleged conduct been clearly established as a legal matter, but it

had also been well established in a manner that is actually useful

to   police     officers,   eliminating   the   risk   that    judicial

declarations of reasonable firearm use in such situations may miss

the mark.     In this sense, our decision does not rely on hindsight

to second guess the handling of a difficult situation.        Rather, it

simply confirms that in this instance, the reasonableness demanded

by the Fourth Amendment is no more than the reasonableness that

law enforcement officers regularly demand of themselves.

            We end as we did in Mlodzinski, noting that "[o]ur denial

of immunity on plaintiffs' version of the events leaves these

claims for trial, where [Duncan] may try to persuade the jury that

[he] did not do what [he is] accused of doing."        Mlodzinski, 648

F.3d at 40.

                                   VI.

            For the reasons stated above, we affirm the denial of

the defendants' motion for entry of summary judgment on the basis

of qualified immunity.      Costs are awarded to the plaintiffs.




                                 - 32 -
