

December 22, 1995
                United States Court of Appeals
                    For the First Circuit
                                         

No. 95-1463

                   KATHY ST. HILAIRE, ETC.

                    Plaintiff, Appellant,

                              v.

                   CITY OF LACONIA, ET AL.

                    Defendants, Appellees.

                                         

                         ERRATA SHEET                                     ERRATA SHEET

The opinion of this Court  issued on December 1,  1995, is amended
as follows:

On  page  22,  the  first  paragraph  should  be  deleted  and the
following paragraph inserted in its place:

Summary judgment  in  favor of  the  municipalities,  the City  of
Laconia, the Town  of Belmont and the  County of Belknap,  is affirmed
because there is no  evidence, even had plaintiff shown  a deprivation
of St. Hilaire's  constitutional rights, that  it was  as a result  of
official  action  taken  pursuant  to  a  "custom  or  usage"  of  the
municipality.  See Monell v. New York City Dep't. of Social Servs. 436                                                                          
U.S. 658,  691 (1978).  Other  than this single incident,  there is no
evidence even proffered to  show such a municipal "custom  and usage."
Evidence of a single  incident is usually insufficient to  establish a
"custom or usage."  Mahan v. Plymouth County  House of Corrections, 64                                                                          
F.3d 14, 16-17 (1st Cir. 1995).

                United States Court of Appeals
                    For the First Circuit
                                         

No. 95-1463

                   KATHY ST. HILAIRE, ETC.

                    Plaintiff, Appellant,

                              v.

                   CITY OF LACONIA, ET AL.

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE 

        [Hon. Paul J. Barbadoro, U.S. District Judge]                                                                

                                         

                            Before

                     Lynch, Circuit Judge,                                                     

         Aldrich and Campbell, Senior Circuit Judges.                                                                

                                         

David H.  Bownes,  with whom  A.  G.  O'Neil, Jr.  and  Normandin,                                                                              
Cheney &amp; O'Neil were on brief, for appellant.                       
Wayne C. Beyer, with whom  Wayne C. Beyer and Associates, P.C. was                                                                          
on  brief, for  appellees City of  Laconia, Town of  Belmont, David A.
Gunter, David Nielsen, and Brian Loanes.
Donald  J.  Perrault,  with  whom  Christine  Desmarais-Gordon and                                                                          
Wadleigh,  Starr, Peters, Dunn &amp;  Chiesa were on  brief, for appellees                                                
County of Belknap, Robert Dupuis, Jr., and Daniel Collis.

                                         

                       December 1, 1995
                                         

          LYNCH, Circuit Judge.   A tragic sequence of events                      LYNCH, Circuit Judge.                                          

leaving Philip  St. Hilaire  dead from wounds  from a  police

bullet  and  leaving  law  enforcement  officers  and   their

municipal employers sued by his widow brings this case before

us.  The district court  entered summary judgment against the

widow's  action under  42  U.S.C.    1983,  finding that  the

officers  were protected  by  qualified immunity.   Mrs.  St.

Hilaire  appeals,  saying  there  are   genuine  disputes  of

material  fact  and  that  the  officers   abrogated  clearly

established constitutional rights.   We hold that while there

are  disputes of fact, those  disputes are not  material.  We

affirm  because the  defendants  are  entitled  to  qualified

immunity in that they did not violate any constitutional  law

that  was clearly established at the time of the shooting and

they could reasonably have  believed their search warrant was

supported by probable cause.

                            FACTS

          Armed  with some evidence (the sufficiency of which

plaintiff challenges),  Deputy Robert  Dupuis of the  Belknap

County Sheriff's Office applied for a search warrant from the

local  district court to search both the person of Philip St.

Hilaire  and his  place of  business, Laconia  Auto Wrecking.

Based  on  information  from  a  confidential informant,  the

police believed  St. Hilaire  was selling cocaine  at Laconia

Auto Wrecking and  that he had just travelled to  New York to

                             -2-                                          2

"score" a load of cocaine.  The warrant issued and the police

planned their operation to execute the search warrant.

          It  was  a  joint  operation  between  the  Belknap

Sheriff's Office, the Belknap  Police and the Laconia Police.

The participants -- defendants  Deputy Dupuis, Deputy  Daniel

Collis, Sgt. David Nielsen,  Sgt. Brian Loanes, and Detective

David Gunter --  met in the early evening  of April 27, 1990.

The police  believed  St. Hilaire  to be  armed and  possibly

dangerous.  They knew that St. Hilaire carried a .357 caliber

revolver or a .25 caliber semi-automatic pistol, or both, and

that he had a shotgun  and a crossbow on the premises.   They

also  had  information  that  St. Hilaire  had,  a  few  days

earlier, pointed  a gun  at  the head  of  a person  who  had

stooped  to pick  up St.  Hilaire's dropped  money bag.   The

police had  also received complaints some  time earlier about

the sounds of shooting from the auto yard.

          The  police  were  concerned  about  the reflective

glass  on the front of  Laconia Auto Wrecking,  which made it

difficult  for people outside to  see in but  easy for people

inside to see  out.  They felt  it would be  a danger to  the

police to approach the front of the building abruptly.

          They  decided  that  Deputy  Dupuis  and  Sergeants

Nielsen   and  Loanes  would   execute  the  search  warrant.

Detective Gunter,  stationed across  the street to  help with

surveillance,  would then  come in  with his  drug  dog, Lux.

                             -3-                                          3

Deputy Sheriff  Collis was also stationed  across the street,

monitoring the auto yard, in radio communication with Dupuis.

Sergeant Nielsen was in uniform; the remaining four defendant

officers  were in plain clothes.   The search  team waited at

the rear of the  building.  Patrolmen in two  marked cruisers

were stationed on the road on either side of the business.  

           The  plan was as follows.   The team,  led by Sgt.

Nielsen would enter the building and then  search St. Hilaire

and the building.   If the building was closed,  the officers

would  find a way to  enter or would  wait for St. Hilaire to

emerge  and then reach him outside.  They planned to identify

themselves  as  law  enforcement  officers  and  state  their

purpose.   Sergeant  Nielsen was  to lead  because he  was in

uniform  and St. Hilaire knew him from prior encounters.  The

officers thought  this would be  the safest  way to  proceed.

Detective  Gunter testified  that, in  execution of  a search

warrant,  the  best  policy  is  to  make  sure  the  subject

understands that he is dealing with a police officer.  

          Things  did  not  go  according  to  plan.    After

watching  someone else unsuccessfully trying to get in to the

building,  Collis concluded  that the  front door  was likely

locked  and radioed  so to  Dupuis.   Dupuis decided  on more

manpower and  called Detective Gunter  over to join  the team

waiting behind  the building.   Collis then  saw St.  Hilaire

leave the building with his dog, lock up, and walk toward his

                             -4-                                          4

car in the parking  lot.  Collis radioed this  information to

Dupuis.  

          The   team,   waiting   behind  the   auto-wrecking

building, decided  to move  in.   Detective  Gunter, who  was

closest  to the  parking  lot, ran  in  front, ahead  of  the

others.   The police rounded  the corner of  the building and

travelled the  roughly 125  feet to the  car in  a period  of

seconds, hoping to reach  St. Hilaire before he got  into his

car.  It was not to be.  St.  Hilaire had already put his dog

in  the back seat, gotten  into the driver's  seat of his car

and  turned on the engine.  Detective Gunter, who was dressed

in jeans and a t-shirt, ran up to the car.

          St. Hilaire, at  that moment, looked  up and saw  a

stranger dressed  in jeans and  a t-shirt, approach  his open

car passenger window, pointing  a .357 magnum revolver toward

him.   St. Hilaire's eyes  widened.  St.  Hilaire reached for

his  own  gun,  or  so  it  appeared   to  Detective  Gunter.

Detective Gunter fired a  bullet, hitting St. Hilaire in  the

neck.     The  bullet  lodged  in   St.  Hilaire's  vertebra,

paralyzing him from the neck down.  

          Sergeant Nielsen, in uniform, reached the car next.

He saw  that St. Hilaire's right hand was on  top of a gun on

the car seat.  Sergeant Nielsen told St. Hilaire to let go of

the gun.   St.  Hilaire replied  that he could  not, that  he

could not move.  The police removed the gun.  

                             -5-                                          5

          St. Hilaire  said to  Sgt. Nielsen, "I  didn't know

you guys were the cops.  Why didn't he identify himself?  Why

didn't  he  say he  was  a  cop?"    Later, at  the  hospital

emergency room,  St. Hilaire  repeatedly told his  nurse, "He

didn't  identify  himself."     St.  Hilaire  made  the  same

statements to his wife.

          The police testified, at  deposition, that they did

identify themselves.  Detective Gunter testified that when he

was  halfway to the car  he yelled, "Phil,  police, Phil" and

then, at the side of the  car, he yelled "Hold it."   He also

testified,  "I'm   sure  I  yelled  'police,'   but  I  don't

remember."   Sergeant  Nielsen said  that he  heard Detective

Gunter  say, "Hold  it Phil,  police.   Hold it,  police," as

Detective Gunter  was about  a foot  away from  the passenger

side of  the car.    Deputy Dupuis  said he  was just  behind

Detective  Gunter  and  heard  Detective  Gunter yell  "Phil,

police."  Deputy Dupuis  said he also yelled, "Police"  as he

rounded  the building, some 58  feet from the  car.  Sergeant

Loanes  said he  heard  someone say  something like  "Police,

freeze."  Two  other officers, who had been  stationed across

the  street, heard  someone  yell, "Police."    One of  them,

Collis,  heard "Police" within two seconds of the gunshot.  A

passing motorist heard "Freeze," just before seeing the flash

of a gun.  Detective Gunter also said he had his police badge

held  in his  extended left  hand as  he approached  the car.

                             -6-                                          6

Dupuis  saw  the  badge   in  Detective  Gunter's  left  hand

immediately after the shooting.

          Some currency and a bag containing three-fourths of

an ounce of cocaine, worth about $2,200, were recovered  from

St. Hilaire's jacket.   St. Hilaire died in October 1991 as a

result  of complications  from  his injuries.   He  was forty

years old.

                         LEGAL CLAIMS

          Kathy St. Hilaire brought suit individually  and as

executrix of the estate under 42 U.S.C.   1983 asserting that

defendants  had  violated the  Fourth  Amendment.   She  also

brought pendent state law claims for negligence and negligent

and   intentional   infliction    of   emotional    distress.

Plaintiff's Fourth  Amendment theories  were that  the search

warrant  was obtained  without  probable cause  and that  the

defendants "used  unreasonable  force in  executing a  search

warrant upon  her  husband in  that they  failed to  identify

themselves as  police officers and then shot her husband when

he failed to yield."

          The  district court entered  summary judgment based

on qualified  immunity.  That  decision is reviewed  de novo.                                                                        

Hegarty v.  Somerset County,  53  F.3d 1367,  1372 (1st  Cir.                                       

1995)(citing Jirau-Bernal v.  Agrait, 37 F.3d 1,  3 (1st Cir.                                                

1994)), petition  for cert. filed  (U.S. Oct. 17,  1995) (No.                                             

                             -7-                                          7

95-629).   All facts are reviewed in the light most favorable

to the party opposing summary judgment.  Id.                                                        

          The ultimate question  of qualified immunity should

ordinarily be decided by  the court.1  Hunter v.  Bryant, 502                                                                    

U.S.  224, 228  (1991).   In determining  whether there  is a

qualified immunity defense "the  court should ask whether the

agents   acted   reasonably   under  settled   law   in   the

circumstances."  Id.  This court has identified two prongs to                                

                                                    

1.  While  this court  has not  had the  occasion to  explore
fully  the allocation  of  functions between  judge and  jury
where facts relevant to the immunity defense are  in dispute,
we have said that  "we doubt the Supreme Court  intended this
dispute to be resolved  from the bench by  fiat."  Prokey  v.                                                                     
Watkins,  942  F.2d 67,  72 (1st  Cir.  1991).   The ultimate                   
question of whether a reasonable police officer, on the basis
of information known to him, could have believed his  actions
were in accord with  constitutional rights is "a question  of
law, subject to resolution by the  judge not the jury."   Id.                                                                        
at 73.   But  if there  is a  factual dispute,  "that factual
dispute must be resolved by a fact finder."  Id.  The precise                                                           
question of  whether the  judge may intercede  and play  that
fact  finder role appears not to have been clearly decided by
the Supreme Court.   Some courts, consonant  with the Seventh
Amendment, have  preserved the  fact finding function  of the
jury through special  interrogatories to the  jury as to  the
disputes of  fact, reserving the ultimate law question to the
judge.   See King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993);                                      
Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied, 498                                                                    
U.S. 967 (1990); Lubcke v. Boise City/Ada Cty. Housing Auth.,                                                                        
124 Idaho 450,  860 P.2d 653, 667 (1993);   see also Oliveira                                                                         
v.  Mayer, 23  F.3d 642,  649 (2d  Cir. 1994)  (when material                     
facts were disputed, issue of  qualified immunity was for the
jury),  cert.  denied,  115  S.  Ct.  721 (1995);  Karnes  v.                                                                     
Skrutski, 62  F.3d 485, 491 (3d Cir.  1995)(same); Presley v.                                                                      
City  of Benbrook, 4 F.3d 405, 410  (5th Cir. 1993) (if there                             
remain  disputed issues  of  material  fact,  jury,  properly
instructed,   may  decide   issue  of   qualified  immunity);
Brandenburg v.  Cureton, 882 F.2d  211, 216  (6th Cir.  1989)                                   
(jury  is  final arbiter  of  qualified  immunity when  issue
depends upon which version of the facts the jury finds).

                             -8-                                          8

the basic qualified immunity  analysis.  Hegarty, 53  F.3d at                                                            

1373  (quoting Burns v.  Loranger, 907 F.2d  233, 235-36 (1st                                             

Cir. 1990)).   First,  the court  must establish  whether the

constitutional right asserted  by the plaintiff  was "clearly

established"  at the  time  of the  alleged  violation.   Id.                                                                         

Second,  the court  must ask  whether "a  reasonable official

situated  in the  same circumstances  should have  understood

that the challenged conduct violated that established right."

Id. (quoting Burns, 907 F.2d at 236).                              

          Whether   the   rights    alleged   are    "clearly

established" is  a question of law  for the court.   Elder v.                                                                      

Holloway,  114 S.  Ct. 1019,  1023 (1994).   For  purposes of                    

determining  qualified  immunity, the  officer's  actions are

measured by a standard of "objective legal reasonableness . .

. in light of  the legal rules that were  clearly established

at  the time [they] were taken."2  Anderson v. Creighton, 483                                                                    

U.S. 635, 639 (1987) (internal quotation omitted).  

          The  Supreme  Court, recognizing  that  the use  of

summary  judgment   in  qualified  immunity  cases  could  be

undermined,  has held that  a very broad  articulation of the

                                                    

2.  This court has noted that,  at least in police misconduct
cases, the objective reasonableness standard for liability is
most  likely  the  same  as  that  for  a  qualified immunity
defense.  Roy v. Inhabitants of the City of Lewiston, 42 F.3d                                                                
691, 694  (1st Cir. 1994).  But see Oliveira, 23 F.3d at 648-                                                        
49 (maintaining that the two standards are distinct).  In any
event,  we draw on the cases decided in the liability context
for  guidance in  deciding  the qualified  immunity question.
See, e.g., Graham v. Connor, 490 U.S. 386, 397 (1989).                                       

                             -9-                                          9

"clearly"  established  law  at   the  time  of  the  alleged

violation is inappropriate:

          [T]he  right the  official is  alleged to
          have  violated  must  have been  "clearly
          established"  in  a more  particularized,
          and  hence  more  relevant, sense:    The
          contours   of   the    right   must    be
          sufficiently  clear   that  a  reasonable
          official would understand that what he is
          doing violates that right.

Anderson, 483  U.S. at 640.   Without such a  rule, the Court                    

said, "[a] passably clever plaintiff would always be able  to

identify  an  abstract  clearly established  right  that  the

defendant could be alleged to have violated," id. at 640 n.2,                                                             

and so defeat summary judgment.3

          The Court  has  also warned  against requiring  too

great  a specificity  in the  "clearly established  law" such

that the officer would  be granted qualified immunity "unless

the  very  action  in  question ha[d]  previously  been  held

unlawful."   Anderson, 483 U.S.  at 640.   An earlier warning                                 

against  exactly  such  a  misapplication  of  the  qualified

immunity doctrine was given in  Mitchell v. Forsyth, 472 U.S.                                                               

511 (1985), a  warning cited  in Anderson.   In Mitchell  the                                                                    

court noted:

          We do  not  intend  to  suggest  that  an
          official is always immune  from liability

                                                    

3.  Similarly, we note, a  "passably clever" defendant  might
characterize the right involved in such broad terms as to say
such  a  broad articulation  could  not  permit a  reasonable
official  to understand that  what he is  doing violates that
right and so the right was not "clearly established."

                             -10-                                          10

          or suit for  a warrantless search  merely
          because the warrant requirement has never
          explicitly been held to apply to a search
          conducted in identical circumstances.

472 U.S. at  535 n.12.   The proper  characterization of  the

"clearly established law" is implicated in this case.  

The Shooting                        

          Plaintiff asserts two Fourth Amendment  theories as

to  the shooting,  both independent  of her  Fourth Amendment

claim  as  to  the  warrant.    Plaintiff  argues  that "[n]o

reasonable  law  enforcement  agent  could  believe  that  in

executing  a search warrant the law allowed him to surprise a

suspect on a  dead run, in plain  clothes, with gun drawn  at

close range,  and not  provide that individual  with adequate

and  reasonable  notice  of   his  identity  and  his  lawful

purpose."  Plaintiff  also argues  that the  facts of  record

"are sufficient to raise  a material and genuine issue  as to

whether  [Detective] Gunter  had a  reasonable belief  he was

acting  in self defense."  She claims that the "resolution of

these issues is an inherently  fact-based matter for the jury

as  no other  officers  observed the  alleged conduct  of St.

Hilaire in reaching for the weapon."  The latter claim is, we

believe,  without merit.   The first  claim, that  the police

were  required   to  identify  themselves  and  their  lawful

purpose, however, raises difficult issues.

          Plaintiff argues that summary judgment was improper

because  there were material facts in dispute.  We agree that

                             -11-                                          11

there is, on the record, a dispute of fact as  to whether the

police did  identify themselves.  St.  Hilaire's first words,

as he sat with a bullet hole in his neck, were to ask why the

police  had  not identified  themselves.    He repeated  this

question at the  hospital and  told his nurses  and his  wife

that the  police  did  not  identify themselves.    While  an

inference  can be drawn from  the deposition testimony of the

officers   that   St. Hilaire  simply   did   not   hear  the

identifications  given  by   the  police,  another  plausible

inference could be  drawn that  the police  did not  identify

themselves.   A  passing motorist  who  heard the  police say

"freeze" did  not hear the word  "police" mentioned, although

the  police  testimony is  that  the two  words  were uttered

together.   Where  "inferences to  be drawn  from the  web of

facts are disputed and unclear -- and are likely to depend on

credibility  judgments," there is a  dispute of fact.  Prokey                                                                         

v. Watkins, 942 F.2d 67, 73 (1st Cir. 1991).                      

          The existence of a factual dispute does not end the

inquiry.  In summary  judgment terms, the disputed  fact must

be  material.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242,                                                          

248  (1986).  In the context of a qualified immunity defense,

the  legal  questions  for  the  court  to  decide  may  well

determine if  the dispute  is material.   Here,  the district

court acknowledged that the plaintiff's argument raised "more

troubling  questions."    The  court  also  assumed,  without

                             -12-                                          12

deciding, that plaintiff had raised a genuine factual dispute

as  to  whether  defendants  identified  themselves  as  they

approached St.  Hilaire's vehicle.   St.  Hilaire v.  City of                                                                         

Laconia, 885 F. Supp. 349, 357 n.2 (D.N.H. 1995).                   

          The court nonetheless entered summary  judgment for

defendants, on  the grounds  that defendants did  not violate

any  "clearly  established"  law.     It  reasoned  that  St.

Hilaire's Fourth  Amendment rights  did not attach  until the

seizure  actually occurred and  that the shooting constituted

the seizure.   Id. at 357  n.3.  It  reasoned that the  issue                              

before  it  was  whether  there  was  a  clearly  established

obligation  under  the  Fourth   Amendment  for  police   not

unreasonably to create circumstances  where the use of deadly

force  becomes   necessary  and  if  so,   whether  any  such

obligation was  "clearly established."   Id. at  356-57.   It                                                        

said there was no such clearly established obligation.  

          The  district  court  analysis  was   reasoned  and

grounded  on  law from  other Circuits.    See id.  at 357-58                                                              

(citing Drewitt v. Pratt,  999 F.2d 774, 780 (4th  Cir. 1993)                                    

(look only to whether it was reasonable for police officer to

shoot in the  circumstances as they existed  at that moment);

Cole  v. Bone,  993  F.2d 1328,  1333  (8th Cir.  1993)  ("we                         

scrutinize only the seizure itself, not the events leading to

the seizure");  Carter v. Buscher,  973 F.2d 1328,  1332 (7th                                             

Cir. 1992)  ("[P]re-seizure conduct is not  subject to Fourth

                             -13-                                          13

Amendment scrutiny.")).  We  believe that reasoning to  be in

error and to  create some of the difficulties  warned against

in  Mitchell and  Anderson.   We  nonetheless  affirm on  the                                      

ground that  the factual dispute as to  whether the defendant

officers identified themselves as they approached St. Hilaire

is immaterial as a matter of law.

          We  first  reject  defendants'  analysis  that  the

police   officers'    actions    need   be    examined    for

"reasonableness"  under  the  Fourth  Amendment  only at  the

moment of the shooting.  We believe that view is inconsistent

with Supreme  Court  decisions  and  with  the  law  of  this

Circuit.   The Supreme Court in  Brower v. Inyo, 489 U.S. 593                                                           

(1989), held that once it has been established that a seizure

has occurred,  the court  should examine  the actions  of the

government  officials leading up to the  seizure.4  The Court

held that petitioners' decedent  was "seized" when he crashed

into a police roadblock  set up in order to stop  his flight.

                                                    

4.  The district court's citation of California v. Hodari D.,                                                                        
499  U.S. 621 (1991), is inapposite.  The question before the
Supreme  Court  in  Hodari  was whether  the  defendant,  who                                      
discarded  cocaine while  being pursued  by police,  had been
"seized" at the time he dropped the drugs, for the purpose of
determining whether the  drugs were the  fruit of an  illegal
seizure.  Id. at 623.  Thus, the question was not whether the                         
seizure was reasonable, which  requires an examination of the                                  
totality of  the circumstances, but whether there  had been a
seizure  at all.   We  do not  read this  case  as forbidding
courts from examining circumstances  leading up to a seizure,
once  it is established  that there has  been a  seizure.  We                                                                    
understand Hodari to hold that the Fourth Amendment  does not                             
come into play unless  there has been a seizure,  not that it                                 
does not come into play until there has been a seizure.                                         

                             -14-                                          14

"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  599.   The  Court                                                   

remanded the cause for a determination of whether the seizure

was "unreasonable"  in light of petitioners' allegations that

the  roadblock had  been set  up in  such a  manner as  to be

likely  to  kill  the decedent.    Id.;  see  also Plakas  v.                                                                     

Drinski,  19 F.3d 1143, 1150  (7th Cir.) ("[W]e  carve up the                   

incident into segments and judge each on its own terms to see

if the officer was reasonable at each stage."), cert. denied,                                                                        

115 S. Ct. 81 (1994).

          This   court  has   recently  followed   a  similar

approach.    In Hegarty,  this  court examined  each  of  the                                   

actions leading up  to the  mortal wounding of  a woman  whom

police  officers  were attempting  to  arrest  for recklessly

endangering the  safety  of  four campers.    53  F.3d  1367.

Instead  of focusing solely  on whether the  officer who shot

Hegarty  was acting  in  self-defense at  the  moment of  the

shooting (Hegarty had picked  up a rifle and raised it in the

direction of the  officers and ignored their demands  to drop

it), the court examined all of the actions of the officers to

determine whether there was  probable cause to arrest Hegarty

and  whether  there were  exigent  circumstances  to allow  a

forcible,  warrantless, nighttime  entry  into her  dwelling.

Id.  at 1374-79.  Similarly,  in Roy v.  Lewiston, this court                                                             

                             -15-                                          15

examined all of the surrounding  circumstances in determining

whether  the police  acted reasonably:    "Roy was  armed; he

apparently  tried to  kick  and strike  at  the officers;  he

disobeyed repeated instructions to  put down the weapons; and

the officers had other reasons . . . for thinking him capable

of assault."  42 F.3d at 695.

          This focus on  the moment of  the shooting led  the

district court to conclude that  the issue was whether  there

was any  clearly established constitutional duty  on the part

of police  to avoid  creating situations which  increased the

risk  of use of deadly  force.  The  district court concluded

there was no such  generalized duty.  Cf. Carter  v. Buscher,                                                                        

973  F.2d 1328,  1331-33 (7th Cir.  1992) (reading  Brower to                                                                      

mean that courts should consider reasonableness of seizure in

totality of circumstances, but should not consider whether it

was reasonable  for the police to  create the circumstances).

But  at the  core  of  plaintiff's  case  is  not  the  broad

contention that the police have a duty to reduce the risk  of

violence.  Such a  contention itself creates a risk  that the

"duty"  is so broadly defined that it gives inadequate notice

of  what would violate the  duty and thus  would fall back on

whether those specific  facts have occurred  in the case  law

before.   Plaintiff instead  makes a narrower,  more specific

claim.  

                             -16-                                          16

          Plaintiff  contends  that  in  executing  a  search

warrant,   the   Fourth   Amendment's   prohibition   against

"unreasonable  searches"  requires  the  police  to  identify

themselves as  police and state their  purpose.5  Plaintiff's

theory  is  that  if   the  police  had  properly  identified

themselves, St.  Hilaire would  have known they  were police,

would not have himself felt endangered when he saw a stranger

approach  with a gun in his hand,  and that St. Hilaire would

not have made a movement in the direction of his gun.   It is

that  movement  which led  Detective Gunter  to fire  his own

weapon.  There is  some additional support in the  record for

plaintiff's theory.  St. Hilaire and the police had had prior

dealings.  In each, the police identified themselves and  St.

Hilaire did not threaten them.

          It  falls to  the court  to determine  whether this

right allegedly  violated  was "clearly  established" at  the

time of the incident.  "Whether an asserted federal right was

clearly established  at a particular  time, so that  a public

                                                    

5.  Plaintiff  relies  on Tennessee  v.  Garner,  471 U.S.  1                                                           
(1985), which held that the Fourth Amendment prohibits use of
deadly  force to prevent the  escape of an apparently unarmed
suspected felon unless it is  necessary to prevent the escape
and  the  officer  has  probable cause  to  believe  that the
suspect  poses  a  significant  threat of  death  or  serious
physical injury  to the  officer or  others.   Garner  indeed                                                                 
establishes that "apprehension by the  use of deadly force is
a seizure  subject to  the reasonableness requirement  of the
Fourth Amendment."  Id. at 6.  But Garner, while helpful, did                                                     
not resolve immunity issues  in that case, nor does  it do so
here.

                             -17-                                          17

official who  allegedly violated  the right has  no qualified

immunity  from suit, presents a question of law."  Elder, 114                                                                    

S. Ct. at 1022.

          Plaintiff  relies on  the  Supreme  Court's  recent

decision in Wilson v. Arkansas, 115 S. Ct. 1914 (1995), which                                          

held  that the  reasonableness  of the  search of  a dwelling

depended  in   part  on  whether  law   enforcement  officers

announced  their  presence and  authority prior  to entering,

thus incorporating  the common law "knock  and announce" rule

into the Fourth Amendment.

          Assuming arguendo  that  the Wilson  rule  supports                                                         

plaintiff's  case,6  plaintiff's  argument succeeds  only  if

Wilson merely  restated what was already  clearly established                  

constitutional law at the time of  the shooting in 1990.  See                                                                         

Davis v.  Scherer, 468 U.S. 183  (1984) (constitutional right                             

to  a pretermination or  prompt post-termination  hearing was

                                                    

6.  Fourth  Amendment  law  in  some  contexts  recognizes  a
distinction  between a person's home and a person's car.  For
example,  the  Fourth Amendment  permits  a slightly  broader
search  pursuant to the arrest  of the occupant  of a vehicle
and some warrantless searches  of vehicles are permitted even
if  there are not  emergency circumstances.   See generally 1                                                                       
Wayne  R. LaFave &amp; Jerold H. Israel, Criminal Procedure   3.7                                                                   
(1984).   One  explanation  for the  different protection  of
items  found  in  vehicles  is  that  "[o]ne   has  a  lesser
expectation  of  privacy  in  a  motor  vehicle  because  its
function  is transportation  and  it seldom  serves as  one's
residence or  as the repository of  personal effects . .  . .
It travels public thoroughfares  where both its occupants and
its  contents are in plain view."  United States v. Chadwick,                                                                        
433 U.S. 1, 12  (1977) (quoting Cardwell v. Lewis,   417 U.S.                                                             
583, 590 (1974)).

                             -18-                                          18

not  yet  clearly established  at  time of  discharge  and it

availed plaintiff not that defendant state officials violated

state  administrative  regulations  requiring   such  hearing

because   1983 protects constitutional rights); Elder, 114 S.                                                                 

Ct. at 1023  ("[T]he clearly established right  [must] be [a]

federal  right."); Harlow, 457 U.S.  at 818.   Thus, in order                                     

for  the plaintiff  to prevail,  the notice  requirement must

have   been   clearly   rooted   in  the   Fourth   Amendment

jurisprudence in 1990.  Plaintiff's argument fails because at

the  time  of the  shooting  the notice  requirement  was not

clearly of constitutional dimension.

          The  Court  in  Wilson  noted that  it  had  "never                                            

squarely   held  that   this  [common   law]  principle   [of

announcement]  is an  element of  the reasonableness  inquiry

under  the  Fourth Amendment."    115 S.  Ct.  at 1918.   The

Supreme Court granted certiorari in Wilson precisely in order                                                      

to  resolve a conflict among  state courts as  to whether the

common-law   notice   requirement   was   a   part   of   the

reasonableness inquiry  under the  Fourth Amendment.   Id. at                                                                      

1916.   The Court noted  that in California  and Illinois, it

had  been so  held, but  in Massachusetts,  it had  been held

merely a rule of  common law, not constitutionally compelled.

Id. at 1916 n.1.  The highest court in New Hampshire had held               

only  that there was a common law rule that "police officers,

before forcibly entering  a dwelling, should  knock, identify

                             -19-                                          19

themselves and their purpose,  and demand admittance."  State                                                                         

v. Jones,  127 N.H. 515, 503 A.2d 802, 805 (1985).  The court                    

in Jones further held that this  rule "ha[d] its basis in the                    

common law"  but did  not  foreclose the  possibility that  a

failure  to  knock and  announce may  be  so flagrant  that a

subsequent  entry  could  violate  the  state  constitution's

prohibition against unreasonable searches  and seizures.  Id.                                                                         

at 805-06.  The issue of whether the search at issue violated

the  federal constitution  was not  before the  New Hampshire

court.  Id. at 805.  Cf. Prokey, 942  F.2d at 72 n.5 (looking                                           

to  Maine law  definition of  probable  cause as  to immunity

question).

          The First Circuit has  not decided whether a search

in violation  of the "knock  and announce" rule  violated the

Fourth   Amendment,  although   it  has   considered  alleged

violations  of  the  federal  "knock  and  announce"  statute

applicable  to federal   officers,  18 U.S.C.    3109.   See,                                                                        

e.g.,  United States v. One Parcel of Real Property, 873 F.2d                                                               

7, 9 (1st Cir.),  cert. denied sub nom. Latraverse  v. United                                                                         

States,  493 U.S. 891  (1989); United States  v. DeLutis, 722                                                                    

F.2d  902, 908-09 (1st Cir. 1983).  Thus, the established law

at the time of  the shooting was that the  notice requirement

was  embodied in  New Hampshire's  common law.   It  was not,

though,   clearly   established   in   this   Circuit   as  a

constitutional requirement until Wilson.  In a   1983 action,                                                   

                             -20-                                          20

plaintiffs must show  the constitutional  right involved  was                                                    

clearly established.   Davis, 468 U.S. at 194.   Accordingly,                                        

under  Harlow  the  defendants  are  entitled  to   qualified                         

immunity on this theory.

          As  to  the  plaintiff's  theory  that  there  were

disputed  facts   as  to  whether  Detective   Gunter  had  a

reasonable belief he  was acting in self-defense when he shot

St.  Hilaire,  we,  like  the  district  court, see  no  such

dispute.  See 885 F. Supp. at 356-57.  The judgment Detective                         

Gunter  made in  that  split second  was  at the  very  least

reasonable, and  it is not the  role of the court  to second-

guess the decision.  See, e.g., Hegarty, 53 F.3d at 1377; see                                                                         

also Hunter, 502 U.S. at 229; Anderson, 483 U.S. at 641.                                                  

The Search Warrant.                               

          Whether  or not  there was  probable cause  for the

warrant, defendants are entitled to qualified immunity unless

"the warrant application is so lacking in indicia of probable

cause  as   to  render  official  belief   in  its  existence

unreasonable."    Malley v.  Briggs,  475  U.S. 335,  344-345                                               

(1986).

          The facts presented in  the warrant application are

not disputed.  We are thus  left with the question of whether

defendants are entitled to qualified  immunity as a matter of

law.  Fed. R. Civ. P. 56(c).  Recognizing that the police may

not  obtain  immunity by  relying  on  the  judgment  of  the

                             -21-                                          21

judicial  officer  issuing  the  warrant  under  Malley,  the                                                                   

defendants  argue  that  there  were  reasonable  indicia  of

probable cause and  their belief they had  probable cause can

not  be called  unreasonable.    That  is, indeed,  what  the

undisputed record  demonstrates.   A  confidential  informant

told Deputy Dupuis that St. Hilaire was selling  cocaine from

Laconia Auto Wrecking,  which was owned  and operated by  St.

Hilaire.  Dupuis consulted with detectives at the Laconia and

Belmont  Police   Departments   who  had   worked  with   the

confidential informant on prior occasions.  These  detectives

told Dupuis that the  informant had twice previously provided

information  that  led  to  seizures of  contraband  and  the

arrests and  convictions of  several persons.   The informant

then met with Dupuis and Detective  Gunter in order to make a

controlled purchase at Laconia  Auto Wrecking.  The substance

purchased tested  positive for cocaine.   A second controlled

purchase  was  made;  the  substance  obtained  also   tested

positive for  cocaine.  The  informant also told  Dupuis that

St.  Hilaire  was going  to New  York  to "score"  a  load of

cocaine.  Airline records confirmed that St. Hilaire had made

a reservation to fly to New  York around the same time as the

informant's report.

          Summary  judgment in  favor of  the municipalities,

the City  of Laconia, the Town  of Belmont and  the County of

Belknap,  is affirmed because there  is no evidence, even had

                             -22-                                          22

plaintiff shown a deprivation of St. Hilaire's constitutional

rights,  that it  was as  a result  of official  action taken

pursuant to a  "custom or  usage" of the  municipality.   See                                                                         

Monell v. New York City Dep't. of Social Servs. 436 U.S. 658,                                                           

691 (1978).   Other than  this single incident,  there is  no

evidence even proffered to show such a municipal  "custom and

usage."     Evidence   of  a   single  incident   is  usually

insufficient to  establish  a "custom  or usage."   Mahan  v.                                                                     

Plymouth County  House of Corrections, 64 F.3d 14, 16-17 (1st                                                 

Cir. 1995).

Municipal Defendants                                

          The   claims   against  the   municipal  defendants

necessarily fail because we find there was no deprivation  of

St.  Hilaire's  clearly  established  rights  and  there  was

reasonable  ground  to  believe  the   warrant  supported  by

probable cause.

          The judgment of the district court is affirmed.  No                                                                         

costs are awarded.                              

                             -23-                                          23
