McGrath v. Tavares

• Decision Date: 01 August 2014
• Docket Number: No. 12–2277.,12–2277.
• Citation: 757 F.3d 20
• Parties: Denise McGRATH, Administratrix of the Estate of Anthony W. McGrath, Plaintiff, Appellant, v. Richard T. TAVARES, Edwin F. Almeida, Robert J. Pomeroy, and the Town of Plymouth, MA, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

757 F.3d 20

Denise McGRATH, Administratrix of the Estate of Anthony W. McGrath, Plaintiff, Appellant,

v.Richard T. TAVARES, Edwin F. Almeida, Robert J. Pomeroy, and the Town of Plymouth, MA, Defendants, Appellees.

No. 12–2277.

United States Court of Appeals,First Circuit.

Aug. 1, 2014.

Paul J. Driscoll, with whom Driscoll & Gibson was on brief, for appellant.

Leonard H. Kesten, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellees.

Before HOWARD, STAHL, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

This appeal stems from the tragic deadly shooting of a sixteen-year-old boy named Anthony McGrath (“Anthony”) by a Plymouth police officer. Following the untimely death of her son, Denise McGrath (“McGrath”) filed a 42 U.S.C. § 1983 action, alleging the police officers involved had used excessive force in violation of the Fourth and Fourteenth Amendments. The two named police officers moved for summary judgment. Finding no constitutional violations on the part of the police officer who fired the lethal shot at Anthony, the district court granted the police officers' motion and dismissed all claims. McGrath appeals the entry of summary judgment. After reviewing the record anew, we affirm.

I. FACTUAL BACKGROUND

Because this is an appeal from the entry of summary judgment, we relate the facts in the light most flattering to the nonmoving party—in this case, McGrath—“as the record will reasonably allow.” ¹McArdle v. Town of Dracut/Dracut Pub. Sch., 732 F.3d 29, 30 (1st Cir.2013).

The events surrounding Anthony's death took place in the early morning of January 10, 2006 in Plymouth, Massachusetts. Around 3:15 a.m., on-duty Plymouth police officers Edwin F. Almeida and Richard T. Tavares responded to an activated burglar alarm at a liquor store (near the intersection of Samoset and Court Streets). At the time the dispatch came in, the officers were in their two respective police cars at Standish Plaza (on Samoset Street). As told by the officers, the following sequence of events transpired in a time span of approximately five minutes.

A. Officer Almeida's Course

Having received the dispatch, Officer Almeida headed east on Samoset Street towards the liquor store with his police cruiser's blue lights activated. As he approached the intersection of Samoset and Court, he saw a westbound Toyota Camry stopping at the traffic light. The light in Officer Almeida's direction was red, but turned green as he approached the intersection. Simultaneously to the eastbound light turning green, the westbound Camry turned left, and headed south on Court Street. Believing various traffic violations had been committed, Officer Almeida decided to pull over the Camry.² He took a right on Court Street, turning on his cruiser's siren and wigwags.³ He radioed dispatch, informing them he had spotted a vehicle leaving the liquor store's vicinity, and was trying to pull it over.

Officer Almeida headed south behind the Camry, but the car did not pull over. It did eventually slow down at an intersection roughly four city blocks later, at which point Almeida was able to get a quick look at the driver. But the Camry then took off again. Officer Almeida—still with his police cruiser's lights, siren, and wigwags on—was now in active pursuit.⁴ He radioed dispatch, advising that the driver he was attempting to pull over was refusing to do so, and was on the run. Officer Almeida witnessed the Camry drive through a bank's drive-through teller window in the wrong direction. Almeida's lone pursuit of the Camry continued through the streets of Plymouth until Officer Tavares (who had heard the earlier liquor store alarm broadcast) entered the fray.

B. Officer Tavares's Course

Hearing the initial dispatch to the liquor store and being in the area, Officer Tavares responded as backup for Officer Almeida's alarm investigation. As he was drawing near to the liquor store, he heard Officer Almeida radio in that he was pulling over a driver in the vicinity of the business. But Tavares continued heading towards the liquor store in response to the activated burglar alarm. It was not until Officer Tavares heard Officer Almeida tell dispatch the driver was refusing to stop and was running that he changed course, and told dispatch he would head towards Almeida's location. With his police cruiser's lights and siren on, Officer Tavares quickly joined the pursuit.

C. Officers Almeida and Tavares's Shared Course

Officers Almeida and Tavares pursued the speeding zigzagging Camry up Water Street until it reached the T intersection with Nelson Street, where the speeding driver was not able to make the turn on time, and crashed into a stone wall. The two police officers pulled up behind the Camry: Officer Almeida parked his cruiser to the rear of the driver's side, and Officer Tavares to the rear of the passenger's side. Almeida then exited his cruiser, drew his gun, and began shouting commands at the driver to put his hands up and step out of the Camry. The driver failed to comply with any of Officer Almeida's commands. Instead, he revved the engine and maneuvered the Camry in reverse between the two police cruisers. The reversing Camry hit Almeida's cruiser, and continued a couple of yards before it crashed into a telephone pole.

The Camry then remained on the telephone pole for a few seconds. Officer Tavares was now the one shouting commands. He approached the Camry from the front passenger side, instructing the driver to turn off the engine and get out. Officer Almeida was to Officer Tavares's right, also facing the Camry. Both police officers had their weapons drawn and aimed at the driver. The driver, again, did not comply; this time, he was looking straight at Officer Tavares with his hands on the steering wheel. Continuing to ignore the police officers' directives to turn off the car, the record reflects the driver revved the Camry's engine and accelerated forward towards Officer Tavares. Tavares then fired his weapon twice, striking the car's front windshield. One of the shots hit the driver in the upper right arm. As the Camry passed Officer Tavares on his right, and continued in Officer Almeida's direction, Tavares fired two more shots. The fatal shot entered the Camry through the front passenger window and struck the driver in the back. Officer Almeida then fired seven shots, but none struck the driver. After hitting the curb and becoming airborne, the Camry came to a complete stop.

Officer Tavares immediately radioed police dispatch, indicating that shots had been fired, and that an ambulance was needed. He simultaneously approached the Camry from the rear, while Officer Almeida closed in from the front. The driver's door was open and the driver was slumped to the left of the steering wheel. Officer Tavares again yelled at the driver to turn off the car and get out, but the driver did neither. Tavares pulled the driver from the vehicle and both officers began to handcuff him. Officer Tavares asked the driver several times if he had been shot. There was no response. Once the driver was handcuffed and placed face down on the ground, the officers began to check him for weapons, and noticed his labored breathing. They removed the handcuffs and began to cut his clothing to look for injuries. This was when the officers noticed the gunshot wounds.

Officer Stephen McLaughlin arrived on the scene, and the three officers began to administer first aid. Officers McLaughlin and Almeida maintained pressure on the wounds and operated the ambu bag,⁵ while Officer Tavares performed chest compressions. Other police officers (who had been rushing to the scene when the Camry initially attempted to flee) also arrived, as did an ambulance. The paramedics took over. The driver, sixteen-year-old Anthony, was taken to a nearby hospital where he was pronounced dead less than two hours later at 5:01 a.m.

II. PROCEDURAL HISTORY

On January 5, 2009, McGrath—as administratrix of her son's estate—sued Officer Tavares, Officer Almeida, Chief of Plymouth Police Department Robert J. Pomeroy, and the Town of Plymouth in the federal district court for the District of Massachusetts.⁶ She alleged Officers Tavares and Almeida (“Defendants”) used excessive force in violation of the Fourth and Fourteenth Amendments.

Officers Tavares and Almeida moved for summary judgment, averring McGrath “ha [d] not established that the use of deadly force violated Anthony McGrath's Fourth Amendment constitutional rights and, in any event, [they were] entitled to qualified immunity.” McGrath opposed the entry of summary judgment, asserting the existence of genuine disputes of material facts.

On July 15, 2011, the district court heard the motion for summary judgment and took it under advisement. On September 4, 2012, it granted summary judgment in Defendants' favor, holding that Officer Tavares's use of deadly force was objectively reasonable as a matter or law, and thus, no constitutional violation had occurred.⁷ It found no need to address the issue of qualified immunity.⁸

McGrath now appeals.

III. STANDARD OF REVIEW

We review the entry of summary judgment de novo, affirming only if the record shows there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 10 (1st Cir.2013). At the summary judgment stage, we must draw all reasonable inferences from the record in the light most favorable to the nonmoving party, disregarding any “conclusory allegations, improbable inferences, and unsupported speculation.” Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir.2014) (quoting Smith v. Jenkins, 732 F.3d 51, 76 (1st Cir.2013)). We do not make any credibility determinations or weigh the evidence. See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.2011). We may uphold an entry of summary judgment on any basis apparent from the...