Roy v. Inhabitants of City of Lewiston

• Decision Date: 10 June 1994
• Docket Number: No. 94-1260,94-1260
• Citation: 42 F.3d 691
• Parties: Michael G. ROY, Plaintiff, Appellant, v. INHABITANTS OF the CITY OF LEWISTON, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 691

42 F.3d 691

Michael G. ROY, Plaintiff, Appellant, v. INHABITANTS OF the CITY OF LEWISTON, et al., Defendants, Appellees.

No. 94-1260.

United States Court of Appeals First Circuit.

Heard June 10, 1994.

Decided Dec. 21, 1994.

Walter Hanstein, III with whom William Maselli and Joyce, Dumas, David & Hanstein, P.A., Livermore Falls, ME, were on brief, for appellant.

Edward R. Benjamin, Jr. with whom Daniel Rapaport and Preti, Flaherty, Beliveau & Pachios, Portland, ME, were on brief, for appellees.

Before TORRUELLA, CYR and BOUDIN, Circuit Judges.

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 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. Sec. 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.

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 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, 112 S.Ct. 534, 116 L.Ed.2d 589 (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, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Further, the Court has adopted a qualified immunity test for section 1983 actions that shields a "reasonable officer" judged by an objective standard. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (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, 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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court said that the "calculus of reasonableness" must make "allowance" for the need of police officers "to make splitsecond 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, 109 S.Ct. at 1871-72. Cf. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (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, 107 S.Ct. at 3038, terms suggesting a measure of deference. The Court then quoted earlier decisions saying that immunity protects "all but the 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, 107 S.Ct. at 3038. See also Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (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...