O'Bert ex rel. Estate of O'Bert v. Vargo
| Citation | 331 F.3d 29 |
| Decision Date | 02 June 2003 |
| Docket Number | No. 02-7805(L).,No. 02-7905.,02-7805(L).,02-7905. |
| Parties | Kenneth O'BERT, as Administrator of the ESTATE OF Richard O'BERT, Plaintiff-Appellee-Cross-Appellant, v. Robert J. VARGO, Sergeant, Vermont State Police, Defendant-Appellant-Cross-Appellee, John G. Fagerholm, III, Sergeant, Vermont State Police, Defendant-Cross-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Chris S. Dodig, Bennington, Vermont (James R. Loughman, Bennington, Vermont, on the brief), for Plaintiff-Appellee-Cross-Appellant.
Cathy Nelligan Norman, Assistant Attorney General, Montpelier, Vermont (William H. Sorrell, Attorney General of the State of Vermont, Montpelier, Vermont, on the brief), for Defendant-Appellant-Cross-Appellee and Defendant-Cross-Appellee.
Before: OAKES, KEARSE, and B.D. PARKER, Circuit Judges.
Defendant Robert J. Vargo, a Sergeant in the Vermont State ("State") Police, appeals from an order of the United States District Court for the District of Vermont, J. Garvan Murtha, then-Chief Judge, denying his motion to alter or amend an order that denied his motion pursuant to Fed. R.Civ.P. 56 for summary judgment dismissing, on the basis of qualified immunity, the claim of plaintiff Kenneth O'Bert ("plaintiff"), brought under 42 U.S.C. § 1983 as administrator of the estate of Richard O'Bert ("O'Bert"), for use of excessive force in the shooting death of O'Bert. The district court denied Vargo's motion for summary judgment on that claim, ruling that there were genuine issues of material fact to be tried as to the circumstances confronting Vargo after he entered O'Bert's trailer home; and it denied Vargo's motion to alter that denial, ruling that on plaintiff's version of the facts it was not objectively reasonable to subject O'Bert to deadly force. On appeal, Vargo argues that he was entitled to judgment as a matter of law on the basis of the undisputed facts and any disputed facts construed favorably to plaintiff. Plaintiff cross-appeals from the summary dismissal, on the ground of qualified immunity, of so much of the complaint as asserted claims under § 1983 against Vargo and defendant John G. Fagerholm, III, likewise a State Police Sergeant, for unlawful entry into O'Bert's home. The court entered a partial final judgment pursuant to Fed. R.Civ.P. 54(b) as to the unlawful entry claims, stating this Court would thereby have the entire case before it since Vargo could take an immediate appeal with respect to the excessive force claim. For the reasons that follow, we affirm the order of the district court that is the subject of the appeal by Vargo; we dismiss the cross-appeal because the partial final judgment did not comply with the requirements of Rule 54(b) and was improvidently entered.
This action has its origin in a complaint received by the State Police at approximately 9:23 p.m. on April 8, 2000, that a man — O'Bert — was beating a woman in the parking lot of a trailer park. The officers who responded (collectively the "officers") were Vargo, Fagerholm, and State Troopers Ruth Gemperlein and John-Paul Schmidt. Fagerholm was the first officer on the scene, and he soon determined that O'Bert had been physically abusive toward Cynthia Miller, who lived with O'Bert and described herself as his wife.
Fagerholm interviewed Miller outside the trailer, with O'Bert remaining inside except for a few minutes when he stepped out — in a very restrained, controlled, and nonthreatening manner, according to Fagerholm — to speak with Miller and Fagerholm. Fagerholm, as a result of his conversation with Miller, decided that O'Bert should be arrested on a charge of domestic assault, and he so informed the other officers when they arrived.
Most of the details as to the events that led the officers to enter the trailer, while pertinent to the claims of unlawful entry, are not material to the claim against Vargo for use of deadly force. We recount here only what is pertinent to Vargo's appeal. Further, we describe the events as plaintiff contends they occurred, given Vargo's assertion that he is entitled to take the present appeal from an interlocutory order on the premise that he accepts plaintiff's version of the facts.
When the officers decided to arrest O'Bert, Gemperlein urged him to come out of the trailer. O'Bert refused; and when the officers threatened to enter the trailer to arrest him, O'Bert yelled, "I will blow your fucking heads off." Miller, who had been asked whether O'Bert had any weapons in the trailer, had told the officers that he had only a rifle or hunting guns.
The officers debated whether to call for a SWAT or tactical support team. While they were debating, Gemperlein, looking through a window of the trailer, saw O'Bert standing in the middle of the living room with nothing in his hands but a cigarette. Gemperlein informed Vargo and Fagerholm that she could see O'Bert and that he did not have a weapon in his hands. The officers decided to enter the trailer immediately, without summoning other forces, because O'Bert was unarmed; they would not have entered had they believed he was armed.
Gemperlein continuously watched O'Bert through the window from the time she first observed him without a weapon until just before Fagerholm kicked in the front door and the officers entered the trailer. The trailer was brightly lit, and Gemperlein's observation was that O'Bert remained unarmed standing in the center of the room. At the moment the officers entered the trailer they observed O'Bert without a gun in his hands, and they never lost sight of him. After the officers entered, O'Bert was never out of Vargo's sight at all; or if he was ever out of sight after Gemperlein first observed that he was unarmed, the interval was not long enough for him to access a weapon.
After the officers entered and followed O'Bert down the hallway of the trailer, O'Bert stood with his left side nearest to the officers. The officers repeatedly ordered O'Bert to show them his right hand. Although they could not see O'Bert's right hand, his right side was not entirely out of sight. By reason of the earlier conversations with Miller, the officers knew or had reason to know that O'Bert only had a rifle or long gun for hunting, not a handgun that would have been concealed as he stood there. Accordingly, Fagerholm walked to within a few feet of O'Bert and holstered his gun. He planned to tackle O'Bert and subdue him. Fagerholm made a sudden movement forward in an attempt to grab O'Bert, and O'Bert turned in response to Fagerholm's lunge. When O'Bert turned, Vargo shot him through the chest. O'Bert died minutes later. He was unarmed.
Plaintiff, O'Bert's brother and the administrator of his estate, commenced the present action under § 1983 against Vargo and Fagerholm ("defendants"), as well as others who are no longer parties in the case. The complaint asserted claims against Vargo and Fagerholm for unlawful entry and a claim against Vargo for use of excessive force. Following a period of discovery, which included depositions of all four officers, defendants moved for summary judgment dismissing the claims against them on the ground that they were entitled to qualified immunity. The district court granted defendants' motion with respect to the claims for unlawful entry for reasons adverted to in Part III below. Vargo's motion for summary judgment with respect to the excessive force claim was denied for the reasons that follow.
In support of his motion for summary judgment on the ground that he was entitled to qualified immunity for his use of deadly force, Vargo presented the following version of the events. When Gemperlein reported to Vargo and Fagerholm that O'Bert did not have a weapon in his hands, the officers decided to enter the trailer immediately. After they kicked the door in and entered, O'Bert disappeared from view. The trailer was dimly lit, and O'Bert was out of Fagerholm's sight for approximately 10-15 seconds and was out of Vargo's sight for about one minute. The officers feared that O'Bert would grab a gun that he had hidden in a handy spot and shoot at them.
When O'Bert reappeared after being out of the officers' sight for some 10-60 seconds, his left side was facing the officers and his right hand and right side were entirely hidden behind his body. The officers repeatedly ordered O'Bert to show them his right hand, which he refused to do. Even though Gemperlein had seen that O'Bert did not have a weapon in his hand immediately before the officers entered, the officers could not be sure whether or not he was armed because he had been out of their sight for up to a minute, and upon his reappearance he was intentionally concealing his right hand. This led the officers to believe that O'Bert was concealing a weapon; he had had ample time to access a gun between the time he disappeared down the hallway after the officers entered the trailer and the time when he reappeared.
As the officers made their way down the hallway toward O'Bert, Fagerholm holstered his weapon in the hopes that he could apprehend O'Bert by lunging at him. He took a little step forward to get within several feet of O'Bert; but Fagerholm did not try to grab O'Bert and made no sudden movement. Shortly after Fagerholm holstered his gun, O'Bert spun around "very quickly with his right hand in a cocked forty-five-degree angle, as though he was going to shoot the officers" (Vargo's Statement of Undisputed Facts ¶ 90), coming around "so fast that Sergeant Vargo `could not see [O'Bert's] right hand'" (id. ¶ 92 ()). Fearful for his life and the lives of the other officers at that point, Vargo shot O'Bert, aiming for his "center of mass." (Id. ¶ 95.)
In an Opinion and Order...
To continue reading
Request your trial
- Burwell v. Peyton
-
Ahern v. City of Syracuse
... ... Vargo, 331 F.3d 29, 37 (2d Cir.2003)) ... ...
-
Vito Savino & Savino, Inc. v. Town of Se. & Charles Tessmer
... ... , 2009) (quoting [983 F.Supp.2d 306] Estate of Morris v. Dapolito, 297 F.Supp.2d 680, 686 ... Vargo, 331 F.3d 29, 37 (2d Cir.2003)). In other words, “[t]he ... ...
-
Bender v. General Services Admin.
...cases, unlike in other cases, the qualified immunity inquiry is the same as the inquiry made on the merits." O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir.2003) (alteration in original; internal quotation omitted). That is, a defendant is entitled to qualified immunity o......
-
Police Use of Deadly Force: Revising Judicial and Statutory Standards to Limit Unjustified Violence.
...200. (164) Brown, 662 F.3d at 1164 (quoting Leverington, 643 F.3d at 732); see also Saucier, 533 U.S. at 200. (165) See O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003) (quoting Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. (166) See Cowan v. Breen 352 F.3d 756, 764 (2d Cir. 2003) (quoting O'......