71 F.3d 20 (1st Cir. 1995), 95-1463, St. Hilaire v. City of Laconia

Docket Nº:95-1463.
Citation:71 F.3d 20
Party Name:Kathy ST. HILAIRE, Etc., Plaintiff, Appellant, v. CITY OF LACONIA, et al., Defendants, Appellees.
Case Date:December 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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71 F.3d 20 (1st Cir. 1995)

Kathy ST. HILAIRE, Etc., Plaintiff, Appellant,


CITY OF LACONIA, et al., Defendants, Appellees.

No. 95-1463.

United States Court of Appeals, First Circuit

December 1, 1995

Heard Sept. 7, 1995.

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David H. Bownes, with whom A.G. O'Neil, Jr. and Normandin, Cheney & O'Neil were on brief, Laconia, N.H., for appellant.

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Wayne C. Beyer, with whom Wayne C. Beyer and Associates, P.C. was on brief, Manchester, N.H., 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 & Chiesa were on brief, Manchester, N.H., for appellees County of Belknap, Robert Dupuis, Jr., and Daniel Collis.

Before LYNCH, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

LYNCH, Circuit Judge.

A tragic sequence of events 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. Sec. 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.


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 "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. 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

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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 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.

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. 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.


Kathy St. Hilaire brought suit individually and as executrix of the estate under 42 U.S.C. Sec. 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."

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The district court entered...

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