     11-1732-cv
     Fortunati, et al. v. State of Vermont, et al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                             AMENDED SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3rd day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                PETER W. HALL,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       ROBERT A. FORTUNATI, administrator of
14       the estate of JOSEPH FORTUNATI; SUSAN
15       FORTUNATI; and MARK FORTUNATI,
16
17                    Plaintiffs-Appellants,
18
19                    -v.-                                               11-1732-cv
20
21       STATE OF VERMONT,
22
23                    Defendant,
24
25       ANDREW CAMPAGNE; MARC THOMAS; JEREMY
26       HILL; TODD PROTZMAN; ROB SNETSINGER;
27       KARL GARDNER; HUGH O’DONNELL; MIKE
28       DUDLEY; and WALTER GOODELL,
29
30                Defendants-Appellees.
31       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1   FOR APPELLANTS:            George Spaneas, Lebanon, New
 2                              Hampshire.
 3
 4   FOR APPELLEES:             David R. Groff, (David Cassetty,
 5                              on the brief), for William H.
 6                              Sorrell, Attorney General of
 7                              Vermont, Montpelier, Vermont.
 8
 9        Appeal from a judgment of the United States District
10   Court for the District of Vermont (Murtha, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        This is an appeal from the district court’s grant of
17   summary judgment and judgment as a matter of law in favor of
18   defendants on qualified immunity grounds. Robert Fortunati
19   brought suit against members of the Vermont State Police
20   (“VSP”) in his capacity as administrator of his son Joseph
21   Fortunati’s estate under 42 U.S.C. § 1983 alleging that
22   defendants violated Joseph’s Fourth Amendment right to be
23   free from excessive force when they fatally shot Joseph
24   while attempting to take him into custody. Further, Robert,
25   his wife Susan, and their other son Mark brought a claim
26   against members of the VSP under 42 U.S.C. § 1983 for false
27   arrest arising out of an incident that occurred when they
28   went to the scene of Joseph’s death. We assume the parties’
29   familiarity with the underlying facts, the procedural
30   history, and the issues presented for review.
31
32        The district court granted summary judgment in favor of
33   Defendants with respect to all claims arising out of the
34   fatal shooting death of Joseph on the ground of qualified
35   immunity. The Court reviews de novo a decision on a motion
36   for summary judgment. Mario v. P & C Food Markets, Inc.,
37   313 F.3d 758, 763 (2d Cir. 2002). “Qualified immunity
38   protects officials from liability for civil damages as long
39   as ‘their conduct does not violate clearly established
40   statutory or constitutional rights of which a reasonable
41   person would have known.’” Gilles v. Repicky, 511 F.3d 239,
42   243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S.
43   800, 818 (1982)). To determine whether a defendant is
44   entitled to qualified immunity, courts ask: whether the

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 1   facts shown “make out a violation of a constitutional
 2   right,” and “whether the right at issue was ‘clearly
 3   established’ at the time of defendant’s alleged misconduct.”
 4   Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting
 5   Saucier v. Katz, 533 U.S. 194, 201 (2001)). Qualified
 6   immunity applies to shield official actions that were
 7   “‘objectively legally reasonable in light of the legal rules
 8   that were clearly established at the time [they were]
 9   taken.’” X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d
10   Cir. 1999) (alterations omitted) (quoting Anderson v.
11   Creighton, 483 U.S. 635, 639 (1987)); see also Taravella v.
12   Town of Wolcott, 599 F.3d 129, 134-35 (2d Cir. 2010).
13
14        1. Plaintiffs contend that there was a genuine dispute
15   as to whether Joseph pulled his gun on the members of the
16   VSP’s Tactical Services Unit (“TSU”) immediately before they
17   opened fire on him. The use of deadly force can be
18   reasonable under the Fourth Amendment “if the suspect
19   threatens the officer with a weapon.” Tennessee v. Garner,
20   471 U.S. 1, 11 (1985). None of the small differences in
21   testimony Plaintiffs cite creates a genuine dispute as to
22   whether Joseph aggressively drew or reached for his gun
23   immediately prior to being fired upon by the TSU team
24   members. Some officers were able only to see Joseph reach
25   for his waist, but small differences in testimony simply do
26   not rise to the level at which a reasonable jury could find
27   the officers’ credibility damaged. The district court was
28   therefore correct to conclude that there was no genuine
29   dispute of material fact as to the credibility of the
30   officers.
31
32        2.  Before the fatal shooting, officers Hill and
33   Snetsinger shot beanbag rounds at Joseph. Assuming that a
34   reasonable jury could find that Hill and Snetsinger violated
35   Joseph’s Fourth Amendment right to be free from an unlawful
36   seizure, we conclude that the officers’ actions were
37   “objectively legally reasonable,” X-Men Sec., 196 F.3d at 66
38   (alterations omitted) (quoting Anderson, 483 U.S. at 639),
39   because “‘officers of reasonable competence could disagree
40   on the legality of the action at issue,’” Manganiello v.
41   City of New York, 612 F.3d 149, 165 (2d Cir. 2010) (quoting
42   Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)).
43   Plaintiffs argue that internal VSP policy and the
44   International Association of Chiefs of Police Training Key

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 1   No. 274 (the “Training Key”) precluded the use of force in
 2   this situation. The Training Key does not proscribe the use
 3   of force against people with mental illness. The VSP use-
 4   of-force policy authorizes the use of deadly force when the
 5   “subject possesses a weapon, or is attempting to gain access
 6   to a weapon under circumstances indicating an intention to
 7   use it against the member [who used force] or others.”
 8   (Joint Appendix 699.) The Troopers understood Joseph to
 9   either be armed or in close proximity to the gun he had
10   brandished hours earlier. The intervening nine hours did
11   not diminish the danger Joseph posed to police and the
12   surrounding community. Thus, the use of non-deadly force by
13   the Troopers who deployed the bean bag ammunition against
14   Joseph meets the objective reasonableness test.
15
16        3. Plaintiffs also challenged the grant of qualified
17   immunity to Defendants Protzman and Goodell, who deployed
18   the TSU team. We conclude that the district court was
19   correct; there was no “clearly established” right in this
20   Circuit to be free from the deployment of a police SWAT
21   team. Appellees argue that the decision to deploy a police
22   SWAT team can itself never amount to a Fourth Amendment
23   violation. We need not decide that question, which this
24   Circuit has not addressed. See Estate of Smith v. Marasco,
25   430 F.3d 140, 149-50 (3d Cir. 2005) (“[A] decision to employ
26   a SWAT-type team can constitute excessive force if it is not
27   objectively reasonable to do so in light of the totality of
28   the circumstances.” (internal quotation marks omitted));
29   Overdorff ex rel. Holland v Harrington, 268 F.3d 1179, 1190
30   (10th Cir. 2001) (“[T]he decision to deploy a SWAT team to
31   execute a warrant must be ‘reasonable.’”). But see Salim v.
32   Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“Officer Proulx’s
33   actions leading up to the shooting are irrelevant to the
34   objective reasonableness of his conduct at the moment he
35   decided to employ deadly force.”); Carter v. Buscher, 973
36   F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is
37   not subject to Fourth Amendment scrutiny.”).
38
39        4. Qualified immunity was also granted with respect to
40   Mark and Susan’s false arrest claim. We assume that Mark
41   and Susan’s detention, which lasted forty-five minutes and
42   involved handcuffs, ripened into an arrest. However, it was
43   “objectively reasonable” for Defendants to believe the
44   detention was lawful. This Court has in the past held that

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 1   officers may use more force than is typically used in a
 2   Terry stop without an “arrest” taking place when the
 3   officers are confronted with a situation that they know to
 4   be dangerous. See United States v. Vargas, 369 F.3d 98, 102
 5   (2d Cir. 2004); United States v. Alexander, 907 F.2d 269,
 6   272-73 (2d Cir. 1990). The encounter was tense; it took
 7   place at a crime scene; and the officers had reason to
 8   believe that Robert might be armed. The officers were
 9   undoubtedly aware that the Fortunati family would be upset
10   over Joseph’s death, and they could also reasonably protect
11   against disruption of the scene of the shooting and
12   interference with their investigative duties. It was
13   therefore objectively reasonable for Defendants to believe
14   that Susan and Mark’s detention did not rise to the level of
15   an arrest, notwithstanding that they may have been detained
16   for a period of up to forty-five minutes after Robert had
17   been taken into custody.
18
19        5. Although Plaintiffs mention their state law claims
20   in their brief, they have not adequately briefed any state
21   law issue. Plaintiffs have therefore waived any arguments
22   with respect to their state law claimes. See Zhang v.
23   Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
24
25        While we are fully cognizant of the tragic
26   circumstances giving rise to this case, we find no error in
27   the district court’s rulings on the issues before us. For
28   the foregoing reasons, we hereby AFFIRM the judgment of the
29   district court.
30
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34




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