784 F.2d 1209 (1st Cir. 1986), 85-1403, Fernandez v. Leonard

Docket Nº:85-1403.
Citation:784 F.2d 1209
Party Name:Oscar J. FERNANDEZ, etc., et al., Plaintiffs, Appellees, v. Francis T. LEONARD, Defendant, Appellant.
Case Date:March 06, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1209

784 F.2d 1209 (1st Cir. 1986)

Oscar J. FERNANDEZ, etc., et al., Plaintiffs, Appellees,

v.

Francis T. LEONARD, Defendant, Appellant.

No. 85-1403.

United States Court of Appeals, First Circuit

March 6, 1986

Argued Dec. 2, 1985.

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Jeffrey R. Martin, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., were on brief for defendant, appellant.

Leonard Glazer with whom Russell R. Weddell were on brief for plaintiffs, appellees.

Before COFFIN, BOWNES, and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This is an interlocutory appeal from a denial of defendant-appellant's claim of absolute and qualified immunity made by way

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of a motion for summary judgment. The defendant, Francis Leonard (Leonard), is a special agent of the Federal Bureau of Investigation. The district court approved the recommendation of the magistrate finding that there were genuine issues of material fact as to whether defendant's conduct violated plaintiffs' constitutional rights. The district court, through the magistrate, also found that on the plaintiffs' version of the facts there was neither absolute nor qualified immunity. We have jurisdiction of the appeal under the Supreme Court's decision in Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), which held "that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." Id. 105 S.Ct. at 2817. See also Krohn v. United States, 742 F.2d 24 (1st Cir.1984).

This case arises out of the shooting and killing of Oscar V. Fernandez (Fernandez) by defendant and police officers in the course of apprehending two kidnappers. Plaintiffs Oscar J. Fernandez (Oscar), the son and administrator of the estate of his deceased father, and Rosa Fernandez, wife of the deceased, are seeking damages against the defendant, four members of the Brookline Police Department, and the Town of Brookline, Massachusetts, for the death of Fernandez. Plaintiffs' complaint states ten claims under the federal Constitution and the law of Massachusetts. Claim I is brought by Fernandez's estate for alleged violations of Fernandez's constitutional rights to freedom from "an unwarranted invasion of personal liberty," from "the use of excessive and unreasonable force," and from the "deprivation without due process of law" of "the right to the enjoyment of life, liberty and property." Claim II is brought by Oscar and Mrs. Fernandez individually for alleged violations of the constitutional rights to the "continued existence of their family and to family integrity," more specifically the right "to the parenting" of Fernandez and "to the marriage relationship" with him. Claim III is brought by Mrs. Fernandez for alleged violations of her constitutional rights to freedom from "an unwarranted invasion of personal liberty," and from the deprivation of her "right to the enjoyment of life, liberty and property" without due process of law. Claims I through III allege grossly negligent, reckless, and/or wantonly dangerous conduct and excessive use of force by the defendant officers. Claims IV through X allege various common-law and state-law torts. The district court found Leonard to be absolutely immune from Claims IV through X, which alleged only common-law and state-law torts, and plaintiffs have not appealed from that ruling. No appeal has been taken by defendants Town of Brookline and the four Brookline police officers from the district court's denial of their motions for summary judgment.

Leonard challenges the district court's denial of his motion for summary judgment on two principal grounds: (1) that there was no genuine issue of material fact as to whether his conduct violated plaintiffs' constitutional rights and that, therefore, the district court erred in denying his claims of absolute and qualified immunity, and (2) that the constitutional violations alleged were not clearly established at the time of the shooting and that, therefore, the district court erred in denying his claim of qualified immunity.

FACTS

The facts before the district court were in large part the result of discovery. On December 26, 1976, it was reported to the FBI by Ivan Rodriguez (Rodriguez), a member of the Fernandez family, and half-brother to Oscar, that Oscar had been kidnapped and that the kidnappers were demanding $60,000 ransom. The family had made contact with the kidnappers by telephone and they were able to identify the voice of one of the kidnappers as that of a Thomas Oses (Oses). Defendant Leonard took charge of the case for the FBI, contacted the Brookline Police Department, and arranged to install a tape recorder on the telephone of the Fernandez apartment. The Brookline police were already familiar

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with both Oses and Rodriguez from other contacts with them.

Sometime in the morning of December 27, the kidnappers entered the Fernandez apartment unexpectedly. Two friends of the family who were in the apartment slipped out the back when the kidnappers entered from the front, and informed the police what had happened. Although the sequence of events is not clear, both the Brookline police and Leonard got word that the kidnappers were in the Fernandez apartment. They also had been told, however, that a Spanish-speaking FBI agent had recently been on the phone with Fernandez and had received no indication that anything was amiss. The police captain in charge, Captain Fleming, and Leonard decided to enter the apartment with a group of plainclothes detectives and uniformed officers. Five police officers and Leonard climbed the stairs to the front door of the apartment and several officers went up to the back door. The police knocked on the front door and then rapped on it with a nightstick. They claim to have shouted that they were police. The members of the Fernandez family state that they did not know who was at the door. After the knock and rapping on the door, the kidnapper Oses, who was armed with a knife, took a position to the right of the door opening into the apartment. The other kidnapper, William Sheppard, who had a pistol, went into the first room to the left of the door. Fernandez went to open the door.

When Fernandez opened the door, he and Rodriguez saw the police, with some of them holding drawn weapons. He and Rodriguez backed up into the foyer. As the police entered the apartment, Oses shouted to Sheppard: "Police" Rodriguez communicated to the police with gestures and words that Sheppard was in the room to their left holding a gun. Captain Fleming moved to the right and disarmed Oses. Mrs. Fernandez says that about this time she was pushed away into a side room by her husband. Sheppard then appeared from the room on the left brandishing the pistol in his right hand and grabbed Fernandez with his left arm.

There are differing accounts of what then happened. Some accounts have Sheppard holding Fernandez around the neck and using Fernandez's body as a shield, one account has Sheppard simply grabbing Fernandez by the shoulder. Some versions of what happened have Sheppard placing the barrel of the gun against Fernandez's head, one against Fernandez's side, and others have Sheppard waving the gun around the room. Some witnesses state that Fernandez and Sheppard began to struggle, another describes it as pushing and jostling each other, sort of "jockeying" for position. Rodriguez claims he moved in to disarm Sheppard and was knocked to the floor from behind by detective McDermott. He then heard the first shot. McDermott claims he grabbed Sheppard from behind and pulled him to the floor, dragging him backwards against his chest as a shield, and then heard the first shot. Officer Murphy and agent Leonard saw neither Rodriguez nor McDermott intervene. Murphy claims he went up to the struggling Fernandez and Sheppard, reached around Fernandez who was held in front of Sheppard, put his revolver into Sheppard's stomach, and fired one shot, after which Sheppard dropped to the floor. Neither Rodriguez nor McDermott saw Murphy do this, and although McDermott claims to have had Sheppard pressed tightly up against him he never sensed Sheppard receive the bullet.

Rodriguez and Mrs. Fernandez say that after the first shot was fired (by whom they could not see) Fernandez turned around to Mrs. Fernandez and said in Spanish to her that he had been shot and killed. At that moment there was a hail of gunfire from all sides and Fernandez and Sheppard fell simultaneously. Rodriguez states that he was screaming for the police not to shoot his father. McDermott states that it seemed like everyone was screaming continuously almost from the moment he entered the apartment and he could not understand anything being said.

Fernandez died of five wounds from bullets fired from the guns of law enforcement

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officers. 1 McDermott was hit in the leg by a bullet from one of those guns, and Sheppard also received a bullet from the same source. It is undisputed that McDermott fired two shots at Fernandez's back, aiming at the upper right shoulder, that Murphy fired one shot at Fernandez, aiming at the front right shoulder, and that Leonard, who was standing to the right of Murphy in the entranceway, fired three times at Fernandez. The police and Leonard claim that they fired at Fernandez in self-defense. They state that Fernandez never turned around to speak to anyone, but that after Sheppard was either tackled or felled by Murphy's bullet, they saw Fernandez holding the pistol, pointing it at Murphy and Leonard, and attempting to fire it. McDermott saw him in a crouched firing position, Murphy and Leonard saw him standing. All three saw him sweeping his arm back and forth, aiming at Murphy and Leonard, and jerking on the pistol as if he were trying to fire it....

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