
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1260                                   MICHAEL G. ROY,                                Plaintiff, Appellant,                                          v.                     INHABITANTS OF THE CITY OF LEWISTON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Walter Hanstein, III with whom William  Maselli and Joyce,  Dumas,            ____________________           ________________     _____________        David & Hanstein, P.A. were on brief for appellant.        ______________________            Edward  R.  Benjamin, Jr.  with whom  Daniel  Rapaport and  Preti,            _________________________             ________________      _____        Flaherty, Beliveau & Pachios were on brief for appellees.        ____________________________                                 ____________________                                  December 21, 1994                                 ____________________                 BOUDIN, Circuit Judge.  On August  13, 1991, around 9:00                         _____________            p.m.,  officers  Michael Whalen  and  Richard  Mercer of  the            Lewiston  Police  Department  were  sent  to  investigate   a            domestic  violence report  at the home  of Michael  and Edith            Roy.   On arriving, Edith  Roy told the  police officers that            Michael  Roy  ("Roy")  was  armed  with  two  knives and  had            threatened to  use them against any  policeman who approached            him.   The policemen  then went  outside to  the back of  the            residence and found Roy lying on the ground.                 Roy was  roused--he had been  drinking--and the officers            then  learned that a third officer, Randy Hausman, was on his            way  to the  Roys'  home to  serve a  summons on  Michael Roy            because of a complaint  by another woman that Roy  had struck            her earlier that day.  When  Hausman arrived and read Roy his            Miranda  rights, Roy  refused to  acknowledge the  reading or            _______            accept  the summons, so Hausman  pushed it into Roy's pocket.            The latter then became upset, stated "I'll show you," entered            his  home,   and  then--following  out  Edith   Roy  who  was            screaming--returned carrying a steak knife in each hand.                 In  broad  outline,  what  happened  next  is  that  the            officers drew their side arms and ordered Roy to put down the            knives.   He advanced, flailing his arms  while continuing to            hold  the knives.   The  officers retreated  back to  a sharp            downward  incline.    After  some maneuvering  in  which  the            officers  repeated their  warnings  and made  some effort  to                                         -2-                                         -2-            distract and  disarm Roy,  Roy made a  kicking-lunging motion            toward  Whalen and Mercer.   Whalen shot  twice, striking Roy            both  times and  injuring him  badly.   Roy was  arrested and            hospitalized.  He ultimately  recovered, and then brought the            present action.                 The law  suit,  filed  in  state court  and  removed  to            federal  district court,  asserted claims  against all  three            officers,  the City of Lewiston,  and the police  chief.  The            claims, under 42 U.S.C.    1983 and state law, were based  on            charges that the three  police officers had unreasonably used            deadly force.  The city and  its police chief were claimed to            be  liable on the ground that they had not adequately trained            the   officers  in   non-lethal  alternatives   for  subduing            dangerous but intoxicated persons.                   The  defendants  moved  for  summary judgment  based  on            affidavits reciting the facts just set forth and their belief            that  their  conduct  was   reasonable.    In  response,  Roy            submitted affidavits and deposition materials of his own.  He            did  not contradict  the events  just described  but asserted            that he had intended and  was seeking to put the knives  down            when  he  was shot.   He  also  proffered testimony  from two            witnesses who had seen the event.  One, a teenager, said that            he had  not seen the kick  or lunge; but Roy  did not dispute            that he had made some gesture of this kind.                                         -3-                                         -3-                 The  other  eyewitness had  substantial  experience with            drunken  prisoners as  a  corrections officer  in the  county            jail.   He was arguably  qualified to  give an opinion  as to            whether  unreasonable force  had been used,  and there  is an            indication that  he harbored doubts about  the police conduct            in  subduing Roy.    But in  his  deposition this  eyewitness            ultimately declined to go  further than to say that  he might            have handled the matter differently.  In  other respects, his            testimony confirmed  a number of  the details offered  by the            officers.                 A  third affiant,  with qualifications  as an  expert on            police procedure,  said that  the officers could  easily have            arrested  Roy without  using  firearms.    He said  that  the            officers  should have  been  equipped with  a noxious  spray,            colloquially known  as red pepper  mace.  Because  this spray            was not  made available  to Lewiston  police and because  the            expert thought that the police chief placed undue emphasis on            guns, the expert was prepared to say that the training of the            officers was inadequate.                 In a  thoughtful opinion rendered on  February 16, 1994,            the district  court granted the motions  for summary judgment            in favor of  each defendant;  as to the  officers, the  court            said  their conduct was  objectively reasonable and protected                                                            ___            by qualified immunity.  Roy has now appealed, challenging the            grant of summary judgment as to  each of the defendants.  For                                         -4-                                         -4-            reasons to be  explained, we  are mainly  concerned with  the            section 1983 claim against Whalen; and although we might have            rested on the district court's  opinion, this case raises one            important issue of general application.                 To lay  the groundwork, we invoke  the usual boilerplate            propositions:   summary  judgment  is proper  if there  is no            genuine issue of material fact and the law otherwise warrants            judgment for the moving  party; the court must assume  that a            jury would  resolve  credibility issues  and draw  reasonable            inferences  in  favor of  the opposing  party; and  on appeal            review  of summary  judgment is  de novo.   Fed.  R. Civ.  P.                                             _______            56(c);  Rivera  v. Murphy,  979 F.2d  259  (1st Cir.  1992).                     ______     ______            Qualified immunity claims, in  particular, are to be resolved            before trial, where possible.  Hunter v. Bryant, 502 U.S. 224                                           ______    ______            (1991).                 Section  1983  protects constitutional  rights,  and the            constitutional standard for measuring Whalen's conduct has  a            surface clarity.  The  Supreme Court has instructed that  the            Fourth Amendment's  search and seizure provisions control and            that the  use  of deadly  force  incident to  arrest  depends            solely  on whether  the  officer's  conduct was  "objectively            reasonable."   Graham  v. Connor, 490  U.S. 386,  397 (1989).                           ______     ______            Further, the Court has adopted  a qualified immunity test for            section  1983 actions  that  shields a  "reasonable  officer"                                         -5-                                         -5-            judged by an objective standard.   Anderson v. Creighton, 483                                               ________    _________            U.S. 635, 641 (1987).                  If these "reasonableness" tests were designed to  mirror            the  standards  of  common-law  negligence,  it  is  doubtful            whether summary  judgment would be appropriate  in this case,            even though  the underlying facts  are fairly  clear.   After            all, one might  think that  a hard look  was warranted  where            three officers had to shoot  and badly injure an  intoxicated            man who, although armed  with two small knives, was  flailing            and stumbling  about rather ineffectually.   Further, Roy was            prepared to offer an  expert to say that the  police conduct,            quite apart from the lack of mace, was unreasonable.                   The most  plausible ground given by the  expert for this            judgment was that  the officers had been  properly trained to                                                      ________            keep a considerable distance--such as 20 feet--from a suspect            armed with a knife.  In fact, two officers were only a couple            of feet from  Roy when he  kicked and  lunged; had they  been            further away, shots might  not have been needed.   The expert            was prepared to testify  that he had reviewed  a tape of  the            scene and believed that  the officers had room to  retreat in            three different directions.                   Judgments  about  reasonableness  are  usually  made  by            juries in arguable cases,  even if there is no  dispute about            what happened (qualified immunity  is a different matter, see                                                                      ___            Hall v. Ochs, 817 F.2d 920, 924 (1st Cir. 1987)).  Of course,            ____    ____                                         -6-                                         -6-            the facts  might point so clearly  toward reasonableness that            no  reasonable jury could decide  for the plaintiff.   But if            this  case  were treated  exactly  like  a case  of  careless            driving by a postman, it might well seem to be one suited for            trial.  Most  drunks with knives are  disarmed without anyone            shooting  them, and here an expert was prepared to opine that            the officers had been negligent and to explain why.                 But the Supreme  Court's standard  of reasonableness  is            comparatively generous to the police in cases where potential            danger, emergency conditions  or other exigent  circumstances            are present.   In Graham v. Connor, 490 U.S.  386 (1989), the                              ______    ______            Court said  that the  "calculus of reasonableness"  must make            "allowance" for  the need of police officers  "to make split-            second judgments--in circumstances that are tense, uncertain,            and  rapidly  evolving--about the  amount  of  force that  is            necessary  in a particular situation."   Id. at  396-97.  Cf.                                                     ___              ___            Daniels  v. Williams, 474  U.S. 327 (1986)  (negligence not a            _______     ________            due process violation).                   Also pertinent is the  Court's more general statement in            Anderson v.  Creighton addressed to qualified  immunity for a            ________     _________            Fourth Amendment violation.   The Court used  as its standard            the "reasonable officer" and what "could reasonably have been            thought  lawful" by such an  officer, 483 U.S.  at 638, terms            suggesting a  measure of deference.   The  Court then  quoted            earlier decisions saying that  immunity protects "all but the                                         -7-                                         -7-            plainly incompetent  or those who knowingly  violate the law"            or  those  who act  where  "the  law  clearly proscribed  the            actions" taken.   Id. at 638-39.  See also  Malley v. Briggs,                              ___             ________  ______    ______            475 U.S.  335, 343  (1986) (qualified immunity  leaves "ample            room for mistaken judgments").                 What  these   precedents  dictate  is  this:     whether            substantive liability or qualified  immunity is at issue, the            Supreme Court intends to surround  the police who make  these            on-the-spot choices  in  dangerous situations  with a  fairly            wide  zone of protection in close cases.  Decisions from this            circuit and  other circuits  are consistent with  that view.1            And  in close  cases, a  jury does  not automatically  get to            second-guess these life and  death decisions, even though the            plaintiff  has  an expert  and  a  plausible claim  that  the            situation could better have been handled differently.                 In  theory, substantive liability and qualified immunity            are  two separate questions  and, indeed,  may be  subject to            somewhat   different  procedural   treatment.     In   police            misconduct  cases, however,  the Supreme  Court has  used the            same "objectively reasonable" standard in describing both the            constitutional  test of  liability, see  Graham, 490  U.S. at                                                ___  ______                                            ____________________                 1See, e.g., Gaudreault v. Municipality  of Salem, Mass.,                  ___  ____  __________    _____________________________            923  F.2d 203  (1st Cir.  1990), cert.  denied, 500  U.S. 956                                             _____  ______            (1991);  Krueger  v. Fuhr,  991  F.2d 435  (8th  Cir.), cert.                     _______     ____                               _____            denied,  114 S. Ct. 386  (1993); Reese v.  Anderson, 926 F.2d            ______                           _____     ________            494  (5th Cir. 1991); Ryder  v. The City  of Topeka, 814 F.2d                                  _____     ___________________            1412 (10th Cir. 1987).                                         -8-                                         -8-            397,  and the  Court's own  standard for  qualified immunity.            Anderson, 483  U.S. at 639.  It seems unlikely that this case            ________            would  deserve  a different  outcome  even  if the  qualified            immunity defense had not been raised.                 As a matter  of legislative policy, one  could argue for            less latitude for  armed officers,  at least in  the case  of            fleeing  suspects who are not  an immediate threat.   But the            Supreme  Court's decisions make  the objective reasonableness            test  a  minimum  constitutional  standard  for liability;  a                     _______  ______________            legislature  cannot  afford  less  protection  for  citizens.                                         ____            Tennessee v. Garner,  471 U.S.  1 (1985).   There is  nothing            _________    ______            that prevents a legislature from  being tougher on its police            (e.g.,   by  adopting   stringent   and   specific   firearms             ____            regulations),  or being  more  generous  to victims  (through            compensation), or both.       Against  this   background,  we            think  that  the  district  court  properly  granted  summary            judgment  on  the  section  1983 claim  in  favor  of Whalen.            Perhaps a  jury could rationally have found that Whalen could            have done a better job; but in our view a jury could not find            that  his conduct was so deficient that no reasonable officer            could have  made the same choice  as Whalen--in circumstances            that were assuredly "tense, uncertain, and rapidly evolving .            . . ."  Graham,  490 U.S. at 397.  Put  differently, Whalen's                    ______            actions, even if mistaken, were not unconstitutional.                                           -9-                                         -9-                 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,  already            described, for  thinking him capable of assault.   Apart from            the suggestion that mace should  be carried by all policemen,            Roy's expert nowhere explains in his affidavit how the police            could have subdued  Roy; and it is not  obvious that it would            have  been a better solution (as the expert seems to suggest)            for the police to  retreat, leaving an intoxicated armed  man            on the premises--one who  had just now committed  an apparent            felony in the presence of the police.                 Nor is it at all plain that the police could, or should,            have kept their distance.  Leaving aside the indications that            Roy moved toward them, one might easily suppose that the best            chance the police had  to subdue him without shooting  was to            get close enough to push him  over or wrest the weapons  from            him.   The police may have done the wrong thing but they were            not "plainly  incompetent" nor  were  their actions  "clearly            proscribed."  Anderson,  483 U.S.  at 638-39.   Cf. Floyd  v.                          ________                          ___ _____            Farrell, 765 F.2d  1, 5  (1st Cir. 1985)  (conduct "at  least            _______            arguabl[y]" justified).                 We  have  labored over  this  single  point--the Supreme            Court's objective reasonableness  standard--without any  hope            of  articulating a  more  concrete or  precise  gloss of  the            Court's  language.   What  can  be  said  is  that  the  term                                         -10-                                         -10-            reasonableness  is  used  in  different   ways  in  different            contexts; and in  this one--the  use of deadly  force by  the            police in dangerous situations--the Supreme Court has allowed            more latitude than might  be customary in a simple  tort case            involving careless driving.  Terms like "plainly incompetent"            or  concepts  like  what  "a reasonable  officer  could  have            believed"  are inherently  general, but  they add  nuance and            provide a sense of direction.                 These  phrases do not  automatically lend  themselves to            effective jury instructions.  On the contrary, this court has            held  that it  would be  unsuitable to  instruct a  jury that            excessive  force  must  be "clearly"  established  to justify            liability; we  reasoned that the term could  confuse the jury            into thinking  that the  burden of  proof was  something more            than preponderance of the evidence, as in the  formula "clear            and convincing evidence" often used to heighten the burden of            proof in fraud cases.   Tatro v. Kervin, 1994 WL  663805 (1st                                    _____    ______            Cir. 1994).  But we are  concerned here not with proof of raw            facts but whether, on known or assumed facts, police behavior            can  be deemed  egregious enough  to submit  the matter  to a            jury.                 The  remaining  defendants  and  the state  claims  were            carefully addressed in the  district court's decision, and we            have little  to add.  The  other officers did  not use deadly            force  or  encourage Whalen  to  do so.    Compare Gutierrez-                                                       _______ __________                                         -11-                                         -11-            Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989).  As for            _________    _________            the  police  chief and  the  town,  nothing  in the  expert's            affidavit would make anyone think that the failure to provide            mace  was so  unusual  or  patently  improper as  to  reflect            "deliberate indifference"  under  the demanding  standard  of            Canton  v. Harris, 489 U.S. 378 (1989).  The Eleventh Circuit            ______     ______            so held on  essentially similar facts  in McKinney v.  DeKalb                                                      ________     ______            County, Georgia, 997 F.2d 1440 (11th Cir. 1993).            _______________                 As for the claims  under Maine law, Roy points  out that            14  Maine Rev.  Stat. Ann.    8104-A  says that  a government            entity, with  certain exceptions,  is  liable for  "negligent            acts" involving  unspecified "machinery or  equipment whether            mobile  or stationary."   Roy asserts that this language must            include the  police use  of firearms  and establishes  a bare            negligence  standard  for  this  case.    This  is perhaps  a            literally permissible reading of an ambiguous statute but one            that  strikes the reader as  a trifle unlikely.   Roy's brief            offers no  precedent for  reading this  statute  to apply  to            police weaponry.                 At  the  same  time,   another  Maine  statute  provides            explicit immunity for official discretionary action, 14 Maine            Rev.  Stat.  Ann.     8111(1)(c),  and  Maine  case  law  has            construed this latter statute to apply to claims of excessive            force.  Leach v. Betters,  599 A.2d 424, 426 (Me.  1991) ("At                    _____    _______            best, the  records support  the conclusion that  the officers                                         -12-                                         -12-            may have used more  force than was necessary but  it contains            no  suggestion that they used more force than they reasonably            thought to be necessary.").   Given Leach, we have  no reason                                                _____            to think  that Maine  imposes  more stringent  limits on  the            police  than does  federal law;  indeed, the  reverse may  be            true.  See  Leach, 599  A.2d at 426  (possible exception  for                   ___  _____                     ________            "wanton" conduct).                 Affirmed.                  ________                                         -13-                                         -13-
